                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS

                                                                                     FILED
In re: B.H.                                                                       April 12, 2016
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
No. 15-0983 (Harrison County 15-JA-24-2)                                            OF WEST VIRGINIA




                                MEMORANDUM DECISION
        Petitioner Mother, by counsel Jerry Blair, appeals the Circuit Court of Harrison County’s
September 11, 2015, order terminating her parental rights to three-year-old B.H.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda,
filed its response in support of the circuit court’s order. The guardian ad litem, Dreama D.
Sinkkanen, filed a response on behalf of the child also in support of the circuit court’s order. On
appeal, petitioner alleges that the circuit court erred in finding that she did not cure the
conditions that led to the neglect when the DHHR failed to provide her with substance abuse
treatment.2

        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 April of 2015, the DHHR filed an abuse and neglect petition against petitioner, who
had a previous involuntary termination of parental rights to two older children in 2011 due to her
drug use. The DHHR alleged that petitioner was addicted to drugs that resulted in the neglect of
her youngest child, B.H.

       At the adjudicatory hearing held in late April of 2015, petitioner stipulated to her prior
involuntary termination of parental rights and to the neglect of B.H. due to her current drug use.
Thereafter, petitioner moved for a post-adjudicatory improvement period. Due to petitioner’s
apparent sobriety at the adjudicatory hearing, the DHHR did not object to permit her temporary
physical custody of B.H. under certain terms and conditions.


       1
           Petitioner filed this appeal pursuant to Anders v. California, 386 U.S. 738 (1967).
       2
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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        In May and June of 2015, petitioner provided drug screen samples that tested positive for
cocaine and opiates. Based on these positive drug screens, the DHHR filed an amended petition
against petitioner. Thereafter, the DHHR sought and obtained physical custody of B.H. pending
the outcome of these proceedings.

         In July of 2015, the circuit court held a hearing on petitioner’s motion for an
improvement period and an adjudicatory hearing on the amended petition. Petitioner failed to
appear at this hearing, but she was represented by counsel who claimed that petitioner failed to
contact him prior to the hearing. Petitioner’s counsel moved to withdraw due to petitioner’s lack
of cooperation, but the motion was denied. Thereafter, the circuit court heard testimony that
petitioner tested positive for drugs on May 12, 2015, May 26, 2015, and June 18, 2015. The
evidence further established that petitioner failed to participate in services, which included
petitioner’s failure to attend in-patient drug treatment that was specifically arranged by the
DHHR in May of 2015. The circuit court was also informed that petitioner had not maintained
visitation with B.H. following the child’s removal from her care. At the conclusion of the
hearing, the circuit court denied petitioner’s motion for an improvement period and adjudicated
her as an abusing parent as alleged in the amended petition.

         In September of 2015, the circuit court held a dispositional hearing. Petitioner arrived
approximately one hour late to that hearing and admitted during her testimony that she had used
controlled substances two days prior to the hearing. Although the circuit court noted that
petitioner appeared unable to remain awake and/or keep her eyes open during the hearing,
petitioner denied being under the influence of drugs during the hearing. Petitioner further
testified that she made efforts to seek in-patient drug treatment that were unsuccessful. The
DHHR worker testified that petitioner’s parental rights to B.H. should be terminated due to her
lack of cooperation in services, which included in-patient drug treatment arranged by the DHHR
that petitioner failed to attend. At the conclusion of the hearing, the circuit court found that there
was no reasonable likelihood that petitioner could substantially correct the conditions of neglect
in the near future. As such, the circuit court terminated her parental rights to B.H. This appeal
followed.

       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).

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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 proceedings below.

       On appeal, petitioner assigns error to the circuit court’s finding that she did not cure the
conditions that led to the neglect by time of disposition when the DHHR failed to provide her
with substance abuse treatment. However, the record is clear that the circuit court was presented
with sufficient evidence upon which to terminate petitioner’s parental rights to B.H. As provided
in West Virginia Code §§ 49-4-604(c)(1) and (3), there is no reasonable likelihood the conditions
of abuse or neglect can be substantially corrected when

               (1) The 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 such 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;

               ....

               (3) The abusing parent . . . [has] not responded to or followed through
               with a reasonable family case plan or other rehabilitative efforts[.]

Moreover, we have previously held that

               “[c]ourts are not required to exhaust every speculative possibility of
       parental improvement . . . where it appears that the welfare of the child will be
       seriously threatened, and this is particularly applicable to children under the age
       of three years who are more susceptible to illness, need consistent close
       interaction with fully committed adults, and are likely to have their emotional and
       physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re
       R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

In re Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4.

       In this case, while petitioner argues that the DHHR failed to provide her with drug
treatment, the circuit court heard evidence that, in fact, the DHHR arranged in-patient drug
treatment in May of 2015 that petitioner failed to attend. Further, despite in-patient treatment and
other services arranged by the DHHR, petitioner had not cured the conditions of neglect at the
time of the dispositional hearing. At that hearing, petitioner admitted she had used drugs two
days before, and tested positive for controlled substances on multiple drug screens throughout
the underlying proceedings. It is clear that petitioner was habitually addicted to controlled
substances and failed to follow through with the efforts designed to remedy her addiction.

        Given petitioner’s repeated failures to achieve sobriety, the circuit court properly found
that there was no reasonable likelihood that she could substantially correct the conditions of

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neglect in the near future. It is also clear from the record on appeal that termination was
necessary for B.H.’s welfare in order for that child to be provided permanency and stability
moving forward. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to
terminate parental rights based on those findings. Therefore, under the circumstances presented
in this case, we find no error in the circuit court’s termination of petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 11, 2015, order is hereby affirmed.


                                                                                       Affirmed.

ISSUED: April 12, 2016


CONCURRED IN BY:

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




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