                                    STATE OF WEST VIRGINIA
                                  SUPREME COURT OF APPEALS


    In Re: A.H.                                                                      FILED
                                                                                  October 21, 2013
    No. 13-0524 (Mingo County 12-JA-76)                                        RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA 


                                     MEMORANDUM DECISION

           Petitioner Mother, by counsel Jerry M. Lyall, appeals the Circuit Court of Mingo County’s
    April 25, 2013 order terminating her parental rights to A.H. The West Virginia Department of
    Health and Human Resources (“DHHR”), by counsel Michael L. Jackson, filed its response in
    support of the circuit court’s order. The guardian ad litem, Diana Carter Wiedel, filed a response
    arguing that petitioner should have been entitled to an extension of her post-adjudicatory
    improvement period. On appeal, petitioner alleges that the circuit court erred 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 is appropriate under Rule 21 of the Rules of Appellate
    Procedure.

            In August of 2012, the DHHR received a referral that the child, A.H., had possible injuries
    to her arm and that the parents had left the child with a family member without any diapers,
    clothes, or food. The referral also alleged substance abuse by the parents. Upon investigation, the
    DHHR observed the child in the custody of the maternal grandmother who stated that the parents
    had been intravenously injecting prescription medication and had been living with various family
    members because they had no home. After locating the parents, DHHR employees observed signs
    of intravenous drug use on their arms and the parents admitted to abusing prescription medication
    in the child’s presence. In October of 2012, the DHHR received a second referral alleging that
    petitioner got into a physical altercation while holding the child in one hand and three hypodermic
    needles in the other. When DHHR employees arrived, petitioner denied having taken any drugs.
    However, she allowed the DHHR employees to count her prescription medications. Despite
    having filled a prescription for ninety Neurontin pills on October 17, 2012, only six pills
    remained.

            On October 22, 2012, the DHHR filed its initial petition and a preliminary hearing was
    held three days later. In November of 2012, the circuit court held an adjudicatory hearing and
    found that the child was abused and neglected and that petitioner was an abusing parent. At a
    dispositional hearing in January of 2013, the circuit court granted petitioner’s motion for a post-

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adjudicatory improvement period and ordered petitioner to comply with all services previously
ordered and to also complete a long-term inpatient substance abuse treatment program. In March
of 2013, the circuit court held a review hearing and was presented with allegations from the
DHHR that petitioner was non-compliant with the terms of her improvement period. The DHHR
further recommended termination of petitioner’s parental rights. On April 22, 2013, the circuit
court held a dispositional hearing, after which it terminated petitioner’s parental rights. It is from
this 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 termination of petitioner’s
parental rights. While petitioner argues that her parental rights were terminated because she chose
a methadone treatment program over a long-term inpatient treatment program, the record does not
support her argument. Conversely, the circuit court had ample evidence upon which to base
termination of petitioner’s parental rights.

        During the dispositional hearing, the circuit court was presented with evidence that
petitioner failed to attend a long-term inpatient treatment program as directed, despite an available
bed. Additionally, the DHHR established that petitioner was continuing to use drugs, as
evidenced by fresh signs of intravenous drug use and positive drug screens. Further, the DHHR
could not establish whether petitioner had completed her methadone treatment. However, it was
noted that petitioner had tested positive for both methadone and Suboxone, despite the fact that
her treatment facility does not provide patients with both drugs. In response, petitioner testified
that she was unable to explain why she tested positive for both methadone and Suboxone, as well
as cocaine. Lastly, it was also established that petitioner was spending weekends at the home of a
registered sex offender, despite instruction from the DHHR that her child should not be around
this individual.



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        In reaching termination of parental rights, the circuit court found that there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse or neglect
in the near future and that termination was in the child’s best interest. As set forth in West
Virginia Code § 49-6-5(b)(1) and (3), such conditions exist in situations where an abusing parent
has habitually abused controlled substances or drugs to the point that parenting abilities are
impaired and when a parent has failed to follow through with a family case plan or other
rehabilitative efforts designed to reduce or prevent abuse. Upon our review, the Court finds no
error in the circuit court’s findings, as the same were supported by substantial evidence, which
includes petitioner’s continued drug abuse and failure to complete a rehabilitation program.
Further, it is clear that the type of rehabilitation program petitioner chose was not a basis for
termination of her parental rights, but rather the fact that she failed to complete any program
whatsoever. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are instructed to
terminate parental rights upon these findings.

       Finally, the record shows that petitioner failed to acknowledge the underlying conditions
of abuse or neglect by failing to fully admit to her drug abuse, instead choosing to deny having
abused certain substances for which she tested positive. We have previously held that

       [i]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
       of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator
       of said abuse and neglect, results in making the problem untreatable and in making
       an improvement period an exercise in futility at the child’s expense.

In re Timber M., 231 W.Va. 44, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). While petitioner did admit to some aspects of her
drug abuse, it is clear that she failed to fully acknowledge the problem. As such, it was not error
for the circuit court to proceed to termination instead of considering a less restrictive dispositional
option, such as an improvement period.

       For the foregoing reasons, we find no error in the decision of the circuit court and its April
25, 2013 order is hereby affirmed.

                                                                                            Affirmed.

ISSUED: October 21, 2013

CONCURRED IN BY:

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