                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                    FILED
In re N.H., H.H.-1, H.H.-2, J.B., and J.H.                                       June 24, 2020
                                                                                EDYTHE NASH GAISER, CLERK

No. 19-1127 (Cabell County 17-JA-102 – 17-JA-105 and 19-JA-157)                 SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION


        Petitioner Mother S.H., by counsel Paula L. Harbour, appeals the Circuit Court of Cabell
County’s November 6, 2019, orders terminating her parental rights to N.H., H.H.-1, H.H.-2, J.B.,
and J.H. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Brandolyn N. Felton-Ernest, filed a response in support of the circuit court’s order. The guardian
ad litem (“guardian”), Robert E. Wilkinson, filed a response on behalf of the children in support
of the circuit court’s order and a supplemental appendix. On appeal, petitioner argues 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 affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        In May of 2017, the DHHR filed a child abuse and neglect petition alleging that petitioner
participated in a prepetition treatment plan with the DHHR to address her mental health issues and
provide adequate housing and care for N.H., H.H.-1, H.H.-2, and J.B. However, according to the
DHHR, petitioner was “kicked out” of her temporary housing provided by a family member and

       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). Additionally, as two children share the same initials, we refer to
them as H.H.-1 and H.H.-2, respectively, throughout this memorandum decision. Finally, we note
that the circuit court entered an order terminating petitioner’s parental rights to J.H. on November
6, 2019, and, for the purposes of appeal, re-entered its August 7, 2019, order terminating
petitioner’s parental rights to N.H., H.H.-1, H.H.-2, and J.B. on the same day. Petitioner’s appeal
makes no distinction between these orders and assigns error to the termination of her parental
rights to all five children.
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failed to return to take custody of the children the following day as planned. The DHHR alleged
that petitioner abandoned the children and took emergency custody of them.

         At an adjudicatory hearing in July of 2017, the circuit court found that petitioner’s
untreated mental health issues affected her ability to parent and adjudicated her as an abusing
parent. Thereafter, petitioner was granted a post-adjudicatory improvement period, which required
that she participate in parenting and adult life skills classes and acquire and maintain mental health
treatment. Additionally, petitioner was required to obtain suitable housing, a secure source of
income, and reliable transportation. In October of 2018, after several months of services, the parties
agreed that petitioner would relinquish her guardianship rights to the children and exercise
visitation while the children were in a relative foster placement. The circuit court accepted
petitioner’s relinquishment of her guardianship rights. However, in December of 2018, the
guardian moved to modify the final dispositional order because the children were removed from
the relative placement and issues arose with petitioner’s visitations. The circuit court limited
petitioner’s visitation and set a hearing on the guardian’s motion.

         In July of 2019, the DHHR filed an amended petition alleging that petitioner gave birth to
J.H. at thirty-five weeks of gestation and the child suffered some complications at birth. Petitioner
did not disclose her ongoing abuse and neglect proceeding to hospital staff and was discharged
from the hospital with the child. The DHHR alleged that the conditions existing at the filing of the
initial petition persisted due to petitioner’s failure to comply with the family case plan and J.H.
was at risk of abuse and neglect in petitioner’s care.

        The circuit court held a dispositional hearing regarding petitioner’s four older children and
an adjudication hearing for J.H. in August of 2019. Following the presentation of evidence, the
circuit court found that J.H. “was born with drugs in his system” and that petitioner “misled
hospital staff about the status of her [rights with respect to her other] children.” Further, the court
found that the “conditions that led to the filing of the initial petition in this case still exist and [J.H.]
would be exposed to those conditions for as long as he [was] in [petitioner’s] care.” The circuit
court noted multiple issues that prevented petitioner’s reunification with the children: “supervised
visits show that [petitioner] cannot control all four children;” petitioner “never completed a
parenting class or adult life skills class;” and “[t]he transportation needs for the children [were]
very high and [petitioner] [had] no ability to provide them with transportation.” The circuit court
also considered the “filthy conditions of the home and children after extended visits” as evidence
that petitioner could not care for the children. The court reasoned, “[o]ver the [past] 27 months
[petitioner] has demonstrated that she [was] not capable of car[ing] for these children and she has
not been able to learn the skills needed [to care] for them.” Further, the court found that “[t]he
[DHHR] has extended the request for . . . services five times to try to assist [petitioner] to establish
herself so that the children can be returned to her,” which “more than met its [burden to make]
reasonable efforts [to reunify the family] . . . in this case, as well as any expectations that would
be added for a person with a mental health diagnosis under the Americans with Disabilities Act.”
Based upon these findings, the circuit court adjudicated J.H. as a neglected child and petitioner as
an abusing parent. Further, the circuit court concluded that there was no reasonable likelihood that
the conditions of abuse and neglect could be substantially corrected in the near future and that
termination of petitioner’s parental rights was necessary for the welfare of the children. The circuit
court terminated petitioner’s parental rights to N.H., H.H.-1, H.H.-2, and J.B. by order entered

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November 6, 2019. Also in November of 2019, the circuit court held a dispositional hearing for
J.H. and, based upon the foregoing findings, terminated petitioner’s parental rights to this child by
a separate order also dated November 6, 2019. Petitioner now appeals the circuit court’s orders
terminating her parental rights to the children. 2

       The Court has previously held:

               “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, this Court finds no
error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred in terminating her parental rights
because she substantially complied with the terms of her family case plan and corrected the
conditions of neglect. 3 Petitioner avers that she was granted Social Security income benefits, which
constituted a stable income, and that she obtained stable housing. Further, petitioner asserts that
she learned to utilize public transportation and, therefore, fulfilled her transportation requirement.
Upon our review of the record, we find petitioner is entitled to no relief on appeal.




       2
         As mentioned above, petitioner appeals two separate orders both entered on November 6,
2019, which, in totality, terminate her parental rights to all five children at issue in this appeal.
According to the parties, the parental rights of the children’s respective fathers were terminated
below, except for H.H.-2’s father, who failed to complete an improvement period and is awaiting
disposition. N.H. and H.H.-1 were placed in a foster home together, and their permanency plan is
adoption in that home. J.B. and J.H. were placed in a foster home together, and their permanency
plan is adoption therein. The permanency plan for H.H.-2 is reunification with her father or the
concurrent plan of placement with and adoption in the foster home of her siblings J.B. and J.H.
       3
        Both of petitioner’s assignments of error on appeal challenge the circuit court’s
termination of her parental rights and will be addressed simultaneously.


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        West Virginia Code § 49-4-604(b)(6) (2019) 4 provides that a circuit court may terminate a
parent’s parental rights upon findings that “there is no reasonable likelihood that the conditions of
neglect or abuse can be substantially corrected in the near future” and that termination is necessary
for the welfare of the children. West Virginia Code § 49-4-604(c)(3) (2019) provides that there is
no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected when

       [t]he abusing parent . . . ha[s] 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.

Here, petitioner failed to fully comply with the conditions of her family case plan. As found by the
circuit court, petitioner failed to complete services required by the case plan, such as adult life
skills and parenting classes. Although petitioner argues that she obtained suitable housing and
could utilize public transportation to transport the children, the record contains no support for these
statements on appeal. Rather, the circuit court found that petitioner’s home and the children were
“filthy” following their extended visitations and that petitioner could not meet the children’s “very
high” transportation requirements. Moreover, the circuit court noted that petitioner could not
control the children during visitations. We have held that “[i]n making the final disposition in a
child abuse and neglect proceeding, the level of a parent’s compliance with the terms and
conditions of an improvement period is just one factor to be considered. The controlling standard
that governs any dispositional decision remains the best interests of the child.” Syl. Pt. 4, In re
B.H., 233 W. Va. 57, 754 S.E.2d 743 (2014). Petitioner’s inability to care for the children or to
learn strategies to care for them after twenty-seven months of services fully supports the circuit
court’s finding that there was no reasonable likelihood that the conditions of neglect or abuse could
be substantially corrected in the near future. The DHHR provided petitioner ample opportunity for
improvement in this case, but the conditions of abuse and neglect persisted despite these efforts.
The children would continue to be endangered in petitioner’s care, and, therefore, it was necessary
for their welfare to terminate petitioner’s parental rights.

       Finally, we have held that

                “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [West Virginia
       Code § 49-4-604 (2019)] . . . 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) (2019)] . . . 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).




       4
        Although the Legislature amended West Virginia Code § 49-4-604 effective June 5, 2020,
including renumbering the provisions, the amendments do not impact this case.
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Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). As the circuit court’s findings
are supported by the record, we find no error in the circuit court’s orders that terminated
petitioner’s parental rights to the above-named children.

       Lastly, we recognize that proceedings against H.H.-2’s father in the circuit court are still
ongoing. As such, this Court reminds the circuit court of its duty to establish permanency for the
children. Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires:

       At least once every three months until permanent placement is achieved as defined
       in Rule 6, the court shall conduct a permanent placement review conference,
       requiring the multidisciplinary treatment team to attend and report as to progress
       and development in the case, for the purpose of reviewing the progress in the
       permanent placement of the child.

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the children
within twelve months of the date of the disposition order. As this Court has stated,

                [t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules
       of Procedure[] for Child Abuse and Neglect Proceedings for permanent placement
       of an abused and neglected child following the final dispositional order must be
       strictly followed except in the most extraordinary circumstances which are fully
       substantiated in the record.

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 6. Moreover, this Court has stated that

               [i]n determining the appropriate permanent out-of-home placement of a
       child under [West Virginia Code § 49-4-604(b)(6) (2019)], the circuit court shall
       give priority to securing a suitable adoptive home for the child and shall consider
       other placement alternatives, including permanent foster care, only where the court
       finds that adoption would not provide custody, care, commitment, nurturing and
       discipline consistent with the child’s best interests or where a suitable adoptive
       home can not be found.

Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the child
is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400
(1991).

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 6, 2019, orders are hereby affirmed.

                                                                                          Affirmed.

ISSUED: June 24, 2020



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CONCURRED IN BY:

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




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