                             STATE OF WEST VIRGINIA                                  FILED
                           SUPREME COURT OF APPEALS                               June 12, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
In re D.A. III, D.A., A.A., and C.W.

No. 19-0137 (Kanawha County 17-JA-542, 17-JA-543, 17-JA-544, and 17-JA-545)



                               MEMORANDUM DECISION



        Petitioner Mother A.W., by counsel Sandra Bullman, appeals the Circuit Court of Kanawha
County’s January 4, 2019, order terminating her parental rights to D.A. III, D.A., A.A., and C.W.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, J. Rudy
Martin, 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 terminating her parental rights without granting her
additional time to participate in services and failing to impose a less-restrictive dispositional
alternative.

       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 December of 2017, the DHHR filed an abuse and neglect petition that alleged that C.W.
was diagnosed with failure to thrive. The petition further alleged that petitioner admitted to
methamphetamine use. Accordingly, the DHHR alleged that petitioner abused and/or neglected all
of the children. Thereafter, petitioner waived her right to a preliminary hearing. That same month,
the circuit court ordered petitioner to submit to random drug screens and set visitation with C.W.
at the child’s nonabusing father’s discretion. The circuit court also ordered petitioner to undergo a
substance abuse evaluation, individualized parenting services, and adult life skills education.



       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 an adjudicatory hearing in February of 2018, petitioner stipulated to substance abuse
that impaired her ability to parent the children. The DHHR recommended a post-adjudicatory
improvement period with terms that included parenting education, adult life skills services, random
drug screens, a parental fitness evaluation with all recommended services, and supervised visits
with the children.

         In November of 2018, the circuit court held a dispositional hearing. Petitioner was not
present, but was represented by counsel. According to the DHHR’s evidence, petitioner was not
compliant with the terms and conditions of her improvement period. Specifically, she tested
positive for methamphetamine twice during its pendency and, at other times, failed to submit to
drug screens as required. The DHHR also indicated that it took service providers “seven weeks to
track [petitioner] down” to conduct her initial intake. According to the evidence, petitioner was
difficult to contact during the proceedings due to the fact that her “phone number [was] constantly
changing, along with her address.” Although she was compliant with services at one point, the
record shows that petitioner was not compliant for the two months preceding disposition. In fact,
at the time the DHHR filed a court summary shortly before the dispositional hearing, petitioner’s
whereabouts were unknown. The DHHR attempted to grant petitioner overnight visitation with the
children, but petitioner failed to provide “a location to verify for the overnight visits.” Further,
according to a report submitted by her service provider in November of 2018, petitioner “refused
to participate in a drug treatment program.” Ultimately, the circuit court 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 review, the Court finds no
error in the proceedings below.

       On appeal, petitioner argues that she should have been entitled to additional time to comply
with services because of her earlier compliance and the fact that, due to the father’s participation


       2
       According to the guardian, the father of D.A. III, D.A., and A.A. retains his parental rights
but has consented to the children’s placement in a legal guardianship with the paternal
grandmother. C.W. has been placed in the home of his nonabusing father.
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in an improvement period, permanency for the children would not have been delayed. We note,
however, that petitioner fails to address the applicable burden to obtain an improvement period,
and find that the evidence shows petitioner could not satisfy this burden.

        The decision to grant or deny an improvement period rests in the sound discretion of the
circuit court. See In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia
law allows the circuit court discretion in deciding whether to grant a parent an improvement
period.”); syl. pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“It is within the
court’s discretion to grant an improvement period within the applicable statutory requirements . .
. .”). We have also held that a parent’s “entitlement to an improvement period is conditioned upon
the ability of the parent/respondent to demonstrate ‘by clear and convincing evidence, that the
respondent is likely to fully participate in the improvement period.’” In re: Charity H., 215 W. Va.
208, 215, 599 S.E.2d 631, 638 (2004). Moreover, because petitioner was previously granted a post-
adjudicatory improvement period, West Virginia Code § 49-4-610(3)(D) required her to
“demonstrate[] . . . [she had] experienced a substantial change in circumstances. . . [and that] due
to that change in circumstances, [she was] likely to fully participate in the improvement period.”
Not only has petitioner cited no evidence to show that she was likely to fully participate in an
additional improvement period, the record shows that the only change in petitioner’s circumstances
was a negative one based on her relapsed methamphetamine usage, failure to inform the DHHR of
her whereabouts for an extended period, and general noncompliance with services for the two
months prior to the dispositional hearing. As such, it is clear that the circuit court did not err in
denying petitioner an additional improvement period.

        Further, the record is clear that the circuit court did not err in terminating petitioner’s
parental rights. On appeal, petitioner argues that disposition under West Virginia Code § 49-4-
604(b)(5)3 would have been appropriate, given that C.W. was placed with his nonabusing father
and the remaining children were placed with their grandparents. Petitioner fails to acknowledge,
however, that the circuit court specifically found that there was no reasonable likelihood petitioner
could correct the conditions of abuse in the near future and that termination of her parental rights
was necessary for the children’s welfare. According to West Virginia Code § 49-4-604(b)(6),
circuit courts may terminate parental rights upon these findings.

       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.



       3
        West Virginia Code § 49-4-604(b)(5) permits circuit courts to “commit the child[ren]
temporarily to the care, custody, and control of the state department, a licensed private child
welfare agency, or a suitable person who may be appointed guardian by the court.”
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While it is true that petitioner was compliant with services for a short period, the record shows
that, for two months prior to the dispositional hearing, petitioner was noncompliant with services,
relapsed into methamphetamine usage, and was generally unavailable for DHHR assistance or
participation in the proceedings. Indeed, petitioner missed both the multidisciplinary team meeting
where termination of her parental rights was suggested and then failed to appear for the
dispositional hearing. As such, it is clear that petitioner failed to follow through with the reasonable
family case plan, despite the granting of a post-adjudicatory improvement period and the
implementation of multiple services.

       In addition to the fact that West Virginia Code § 49-4-604(b)(6) permits a circuit court to
terminate parental rights upon these findings, this Court has held as follows:

              “Termination of parental rights, the most drastic remedy under the statutory
       provision covering the disposition of neglected children, [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 [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). Given that petitioner failed to
follow through with the reasonable family case plan, it is clear that she was not entitled to a less-
restrictive dispositional alternative.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 4, 2019, order is hereby affirmed.


                                                                                             Affirmed.

ISSUED: June 12, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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