                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                    FILED
In Re: N.H.                                                                    September 21, 2015
                                                                               RORY L. PERRY II, CLERK
No. 15-0377 (Greenbrier County 13-JA-48)                                     SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Mother O.H., by counsel Kristopher Faerber, appeals the Circuit Court of
Greenbrier County’s March 30, 2015, order terminating her parental rights to N.H. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed
its response in support of the circuit court’s order. The guardian ad litem (“guardian”), Michael
R. Whitt, filed a response on behalf of the child in support of the circuit court’s order. On appeal,
petitioner alleges that the circuit court erred in terminating her parental rights instead of
imposing a less-restrictive dispositional alternative.1

        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 September of 2013, the DHHR received a referral that petitioner committed domestic
violence against her maternal grandmother, C.W., in the child’s presence. Officer Clendenin of
the Alderson Police Department investigated the matter and noted that the police “[are] at this
house at least once a week and for reports of domestic violence.” The DHHR further investigated
the matter and discovered a pending Child Protective Services (“CPS”) investigation against
petitioner based upon her drug and alcohol abuse. During the current investigation, petitioner
admitted to using drugs three weeks prior to this domestic altercation. Furthermore, petitioner
denied drinking alcohol prior to the altercation despite having a blood alcohol content of 0.118.
Petitioner declined to cooperate with the DHHR and refused to sign a temporary protection plan
for N.H. The following day, petitioner was arrested for battery on a police officer and obstruction
of justice. In October of 2013, the DHHR filed a petition for abuse and neglect based upon the
September referral.



       1
         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 November of 2013, the circuit court held an adjudicatory hearing. Petitioner stipulated
that the child was abused and neglected due to the history of domestic violence and her alcohol
and substance abuse. Ultimately, the circuit court granted petitioner a ninety-day post­
adjudicatory improvement period. The terms and conditions of the improvement period required
petitioner to obtain and maintain employment and proper housing; participate in parenting and
life skills classes; attend substance and alcohol assessments and treatment; and submit to random
drug and alcohol screens. The circuit court also granted petitioner supervised visitation with N.H.

        The circuit court held its first of several review hearings in February of 2014, to
determine petitioner’s compliance with the terms and conditions of her improvement period. The
DHHR presented the circuit court with evidence that petitioner tested positive for cannabonoid,
benzodiazepine, and oxycodone on three separate occasions and missed six supervised visitations
and six parenting and adult life skills classes. In light of this evidence, the circuit court granted
petitioner a ninety-day extension of her improvement period finding that petitioner entered into a
residential treatment center and “ha[d] made progress in achieving the goals” of her
improvement period. Subsequently, the circuit court held review hearings in July and September
of 2014. Following each of these review hearings, the circuit court found that “[petitioner] has
made progress towards remedying the conditions that led to the filing of the petition” and
granted her two ninety-day extensions of her improvement period, respectively.

         In March of 2015, the circuit court held a dispositional hearing. The DHHR presented
evidence that petitioner missed two parenting classes in September of 2014 and failed to
regularly attend therapy sessions since completing her residential substance abuse treatment.
Importantly, petitioner testified that she relapsed three times since completing residential
treatment. Petitioner also testified that she plans to move to Parkersburg, West Virginia, for
twelve to eighteen months to receive additional substance abuse treatment and that her plans “do
not include” N.H. Furthermore, petitioner concedes that she failed to comply with the terms and
conditions of her improvement periods because she failed to adequately address her issues
regarding domestic violence and failed to obtain employment and appropriate housing.
Accordingly, the circuit court found that petitioner failed to follow through with her
improvement period and terminated her parental rights to N.H. by order entered March 30, 2015.
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

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       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 order terminating petitioner’s parental rights.

       Petitioner argues that the circuit court erred in terminating her parental rights without
employing a less-restrictive dispositional alternative, pursuant to West Virginia Code § 49-6-5(a)
and our holding in syllabus point one of In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).2
Contrary to petitioner’s argument that a less-restrictive dispositional alternative existed, namely
leaving the child in a legal guardianship with C.W., the circuit court had no option but to
terminate petitioner’s parental rights. Petitioner’s argument fails to consider our directions
regarding termination upon findings that there is no reasonable likelihood that the conditions of
abuse and neglect can be substantially corrected. This Court has held that
               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W.Va. Code [§]
       49-6-5 [1977] 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) [1977] that conditions of neglect or abuse can be substantially
       corrected.” Syl. pt. 2, In Re: R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 2, In re Dejah P., 216 W.Va. 514, 607 S.E.2d 843 (2004).

       Pursuant to West Virginia Code § 49-6-5(b)(3), a situation in which there is no
reasonable likelihood that the conditions of abuse or 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.


       2
           This Court previously has held that

               [a]s a general rule the least restrictive alternative regarding parental rights
       to custody of a child under W.Va. Code [§] 49-6-5 (1977) will be employed;
       however, courts are not required to exhaust every speculative possibility of
       parental improvement before terminating parental rights 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 re R.J.M., 164 W.Va. at 496, 266 S.E.2d at 114 (1980).
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        The circuit court was presented with overwhelming evidence that petitioner failed to
substantially correct the conditions that led to the abuse and neglect, including a post­
adjudicatory improvement period and multiple extensions. The record reflects that petitioner
relapsed three times after completing a residential substance abuse treatment program and failed
to attend therapy sessions after substance abuse treatment. Furthermore, petitioner concedes that
she failed to comply with the terms and conditions of her improvement periods because she
failed to adequately address her issues regarding domestic violence and failed to obtain
employment and appropriate housing. Finally, petitioner conceded that her plans for up to the
next eighteen months do not include N.H. For these reasons, termination of petitioner’s parental
rights was not error.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
March 30, 2015, order is hereby affirmed.

                                                                                       Affirmed.


ISSUED: September 21, 2015

CONCURRED IN BY:

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




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