                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


In re: A.B.                                                                           FILED
                                                                                   June 9, 2017
No. 16-1103 (Barbour County 16-JA-26)                                              RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA


                               MEMORANDUM DECISION
       Petitioner Mother L.P., by counsel G. Phillip Davis, appeals the Circuit Court of Barbour
County’s October 19, 2016, order terminating her parental rights to A.B.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Allison C.
Iapalucci, filed a response on behalf of the child in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in denying her motions for an improvement
period and in terminating her parental rights.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In May of 2016, the DHHR filed an abuse and neglect petition that alleged petitioner
abused the child by operating a motor vehicle under the influence of drugs and alcohol, during
which she was involved in an accident, with the child in the car. Further, the DHHR alleged that,
as a result of petitioner’s failure to properly restrain the child, the child suffered serious injuries
during the accident, including a skull fracture, a deep laceration to the chin, and had glass
embedded above one eye. The petition further alleged that petitioner tested positive for alcohol,
benzodiazepines, and methamphetamine upon her arrival at the hospital. According to the
DHHR, petitioner admitted to abusing methamphetamine. The petition also alleged that
petitioner caused the child to be truant from school.

       In August of 2016, petitioner filed a written stipulation to having abused an illegal
substance and been involved in a car accident. Petitioner testified to her substance abuse and
admitted that she spent $100 every two days to support her addiction to methamphetamine,

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).


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which she administered intravenously. The circuit court questioned petitioner regarding the
source of her drugs, but petitioner refused to provide the circuit court with that information.
Based on her admissions, the circuit court adjudicated petitioner as abusing and neglecting the
child. Petitioner thereafter moved for a post-adjudicatory improvement period, which the circuit
court denied.

        In October of 2016, the circuit court held a dispositional hearing, during which petitioner
again moved for an improvement period. The circuit court denied the motion upon findings that
petitioner failed to participate in drug testing or attend multidisciplinary team (“MDT”)
meetings, as ordered. The circuit court further found there was no reasonable likelihood
petitioner could substantially correct the conditions of abuse and neglect and that termination of
her parental rights was necessary for the child’s welfare. The circuit court then terminated
petitioner’s parental rights.2 It is from the dispositional order that petitioner appeals.

       The Court has previously established the following standard of review:

               “Although conclusions of law reached by a circuit court are subject to de
       novo review, when an action, such as an abuse and neglect case, is tried upon the
       facts without a jury, the circuit court shall make a determination based upon the
       evidence and shall make findings of fact and conclusions of law as to whether
       such child is abused or neglected. These findings shall not be set aside by a
       reviewing court unless clearly erroneous. A finding is clearly erroneous when,
       although there is evidence to support the finding, the reviewing court on the entire
       evidence is left with the definite and firm conviction that a mistake has been
       committed. However, a reviewing court may not overturn a finding simply
       because it would have decided the case differently, and it must affirm a finding if
       the circuit court’s account of the evidence is plausible in light of the record
       viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223,
       470 S.E.2d 177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, the Court finds
no error in the circuit court’s denial of petitioner’s motions for improvement periods or in its
termination of her parental rights.

        First, petitioner alleges that the circuit court erred in denying her an improvement period
based upon her refusal to identify the individual who sold her drugs. According to petitioner,
despite the confidential nature of abuse and neglect proceedings, her safety could have been
threatened by identifying the source of her drugs. Accordingly, petitioner argues that it was error
to deny her an improvement period based on her refusal to provide this information. We do not
agree, as petitioner’s argument ignores the fact that she failed to meet the burden for obtaining an



       2
        Petitioner’s parental rights to the child were terminated below, while the child’s father
voluntarily relinquished his parental rights. According to the DHHR and the guardian, the child
remains in the home of her grandmother with a permanency plan of adoption in the home.


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improvement period. Petitioner further ignores the fact that the circuit court had ample evidence,
beyond her refusal to name her drug dealer, upon which to deny her motions.

        Pursuant to West Virginia Code § 49-4-610(2)(B), a circuit court may grant a post­
adjudicatory improvement period when “[t]he [parent] demonstrates, by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period . . . .” Here,
petitioner failed to satisfy this burden. As the circuit court found in its dispositional order,
petitioner failed to comply with its orders to participate in drug testing and MDT meetings.
Moreover, the circuit court found petitioner’s explanation that she did not know she was required
to participate in these services to be incredulous, given that it had earlier explicitly directed her
to comply with these services. Simply put, petitioner provided no evidence to excuse her failure
to participate in drug testing and MDT meetings and she further failed to establish that she was
likely to fully participate in an improvement period. Based upon petitioner’s failure to participate
in services, it is clear that the circuit court did not abuse its discretion in denying her motions for
a post-adjudicatory improvement period. Further, contrary to petitioner’s argument on appeal,
her refusal to identify the source of her drugs was not the sole basis for the circuit court’s
decision. As such, we find no error on the circuit court’s denial of petitioner’s motions.

        Next, petitioner argues that the circuit court erred in failing to impose a less-restrictive
dispositional alternative, such as an improvement period. We do not agree. In terminating
petitioner’s parental rights, the circuit court specifically found that there was no reasonable
likelihood petitioner could substantially correct the conditions of abuse and neglect in the near
future. Pursuant to West Virginia Code § 49-4-604(c)(1), a situation in which there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes
one in which

       [t]he abusing parent . . . [has] habitually abused or [is] addicted to alcohol,
       controlled substances or drugs, to the extent that proper parenting skills have been
       seriously impaired and the person or persons have not responded to or followed
       through the recommended and appropriate treatment which could have improved
       the capacity for adequate parental functioning . . . .

Based upon the evidence presented below, petitioner had ongoing substance abuse issues that
began prior to the proceedings and persisted throughout. Moreover, petitioner’s substance abuse
resulted in serious injury to the child at issue. Despite petitioner’s admissions regarding her
ongoing substance abuse, she failed to participate in basic services designed to remedy the
conditions of abuse and neglect, such as drug screens and attending MDT meetings. For these
reasons, we find no error in the circuit court’s finding that there was no reasonable likelihood
petitioner could substantially correct the conditions of abuse and neglect in the near future.

        The circuit court further found that termination of petitioner’s parental rights was
necessary for the children’s welfare. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit
courts are directed to terminate a parent’s parental rights upon such findings. Moreover, we have
previously held that




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               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the
       use of intervening less restrictive alternatives when it is found that there is no
       reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code
       § 49-4-604(c)] . . . that conditions of neglect or abuse can be substantially
       corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). As such, it is clear that the
circuit court did not err in terminating petitioner’s parental rights.

        Petitioner additionally argues that termination of her parental rights was erroneous
because the circuit court’s summary dismissal of her renewed motion for a post-adjudicatory
improvement period denied her a meaningful opportunity to be heard at the dispositional hearing.
We do not agree. While it is true that West Virginia Code § 49-4-604(a) provides parents in
abuse and neglect cases the right to be heard at disposition, it does not guarantee a parent the
right to present evidence on a renewed motion. The record is clear that the circuit court
previously denied petitioner’s motion for a post-adjudicatory improvement period and was under
no duty to entertain the motion anew. There is similarly no evidence in the record that petitioner
was prevented from testifying on her own behalf or presenting or cross-examining any witnesses
in support of her position regarding disposition. As such, we find that the circuit court complied
with the requirement that petitioner have an opportunity to be heard at disposition.

       We similarly find no merit to petitioner’s argument that the circuit court could not
proceed to disposition because the DHHR failed to provide a disclosure pursuant to Rule 30 of
the Rules of Procedure for Child Abuse and Neglect Proceedings, which requires that

       [a]t least five (5) judicial days prior to the disposition hearing, each party shall
       provide the other parties, persons entitled to notice and the right to be heard, and
       the court a list of possible witnesses, with a brief summary of the testimony to be
       presented at the disposition hearing, and a list of issues of law and fact. Parties
       shall have a continuing obligation to update information until the time of the
       disposition hearing.

According to the DHHR, it did not present any witnesses at disposition.3 Accordingly, we find
no error in the DHHR’s failure to provide petitioner with a disclosure of its potential witnesses.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 19, 2016, order is hereby affirmed.


                                                                                        Affirmed.



       3
        Petitioner failed to include a transcript of the dispositional hearing in her appendix on
appeal to this Court.
                                                4

ISSUED: June 9, 2017


CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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