                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: A.S.                                                                        FILED
                                                                                June 19, 2017
No. 16-0977 (Monroe County 15-JA-29)                                            RORY L. PERRY II, CLERK

                                                                              SUPREME COURT OF APPEALS

                                                                                  OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Mother J.S., by counsel John C. Anderson, II, appeals the Circuit Court of
Monroe County’s September 26, 2017, order terminating her parental rights to A.S.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Richard M.
Gunnoe, filed a response on behalf of the children in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in finding there was no reasonable likelihood
she could substantially correct the conditions of abuse and neglect in the near future.

        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 October of 2015, the DHHR filed an abuse and neglect petition against petitioner
alleging that her home was “infested with millions of roaches and fleas” and littered with trash,
animal urine, and feces. The petition also alleged that the child, A.S., had lice and insect
bites/sores all over her body. The petition further alleged that petitioner had a previous DHHR
intervention for similar deplorable conditions in her home.

        In November of 2015, petitioner waived her right to a preliminary hearing. Petitioner also
requested that the case be referred for a multidisciplinary team (“MDT”) meeting and the circuit
court granted her request for an MDT meeting. In December of 2015, the circuit court held an
adjudicatory hearing wherein petitioner stipulated to the allegations that her home was “unsafe
and uninhabitable.” Petitioner requested a post-adjudicatory improvement period and the circuit
court granted her request. The terms and conditions of petitioner’s improvement period required
that she find employment and a safe, stable, and clean home for herself and the child.

       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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        At a review hearing on March 7, 2016, the DHHR recommended that petitioner receive a
ninety-day extension of her improvement period and the circuit court granted the DHHR’s
request. At a review hearing in June of 2016, the DHHR recommended that petitioner’s case be
set for disposition. At a hearing in July of 2016, petitioner moved the circuit court for an
“alternative dispositional improvement period” because she recently claimed to have “obtained a
job and a residence,” which were two of her improvement period goals. The DHHR opposed the
motion and argued that petitioner’s motion should be denied because the child was removed in
October of 2015; petitioner’s improvement period was granted in December of 2015, with an
extension in March of 2016; and “nearly nine months” had passed without petitioner meeting her
improvement period goals. The circuit court denied petitioner’s motion and set the matter for
disposition.

        In August of 2016, the circuit court held a dispositional hearing wherein several
witnesses testified. Petitioner’s parenting and life skills service provider testified that petitioner
was unemployed and homeless. A DHHR worker testified that, despite months of services,
petitioner failed to provide a safe and suitable home for herself and the child. She also testified
that petitioner was unable to confirm any employment during the improvement period.
According to the worker, petitioner advised the MDT that she “worked under the table for
individuals,” but could not provide a working phone number or a last name for her employers.
The service provider testified that petitioner “had been staying with” a boyfriend and that she
did, at some point during the proceedings, have a “new place” but the apartment was in a
deplorable condition with trash and clothes strewn throughout the home. Petitioner admitted that
she had no source of income. Based on the evidence presented, by order dated September 26,
2017, the circuit court noted that petitioner made “very little change for the better in the
conditions of the home over the last [ten] months” and found that there was no reasonable
likelihood petitioner could substantially correct the conditions of abuse and neglect and
terminated her parental rights to the child.2 It is from that order that petitioner appeals.

         The Court has previously established the following standard of review in cases such as
these:

                “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
         2
      The parental rights of both parents to A.S. were terminated below. Additionally, the
DHHR states that A.S. was placed in a foster home and the permanency plan is adoption into that
home.

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       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 finding that petitioner could not substantially correct the conditions
of abuse and neglect in the near future.

       Petitioner’s sole argument on appeal is that the circuit court erred in finding that there
was no reasonable likelihood she could substantially correct the conditions of abuse and neglect
in the near future. Petitioner contends that there was evidence presented that she was in
compliance with the terms and conditions of her improvement period. We disagree. Pursuant to
West Virginia Code § 49-4-604(c)(3), 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] not responded to or followed through with a
       reasonable family case plan or other rehabilitative efforts of social, medical,
       mental health or other rehabilitative agencies designed to reduce or prevent the
       abuse or neglect of the child, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child .
       ...

Further, we have held as follows:

               “Termination 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).

        Based upon the ample evidence outlined above, the circuit court found there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect. According to the circuit court, petitioner made “very little change for the better in the
conditions of the home over the last [ten] months.” The circuit court was presented with evidence
that, despite several months of services, petitioner failed to provide a safe and suitable home for
the child or secure employment. Petitioner admitted that she had no source of income and failed
to confirm that she was actually employed. The circuit court further found that termination of
petitioner’s parental rights was necessary for the child’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. Accordingly, we find no error below.




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      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 26, 2017, order is hereby affirmed.

                                                                                     Affirmed.

ISSUED: June 19, 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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