                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


                                                                                  FILED
In re: J.H.-1, T.O., and B.H.
                                                                              January 8, 2018
                                                                             EDYTHE NASH GAISER, CLERK
No. 17-0781 (Hardy County 17-JA-5, 17-JA-6, & 17-JA-7)                       SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Mother J.H.-2, by counsel Lauren M. Wilson, appeals the Circuit Court of
Hardy County’s August 3, 2017, order terminating her parental rights to J.H.-1, T.O., and B.H.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel William
P. Jones, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Marla Zelene Harman, 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 by denying her an
improvement period and terminating her parental rights when less-restrictive alternatives existed.

        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 March of 2017, the DHHR filed an abuse and neglect petition against petitioner.
Specifically, the DHHR alleged that petitioner exposed the children to her habitual drug usage.
The DHHR noted that petitioner had recently given birth to B.H. in January of 2017. Petitioner
tested positive for oxycodone upon her admission to the hospital and B.H.’s meconium tested
positive for oxycodone, noroxycodone, and noroxymorphine. The DHHR alleged that when
questioned about B.H.’s positive test, petitioner stated that she was prescribed medication by her
dentist. Notably, this was the same excuse she gave in prior abuse and neglect proceedings
initiated after T.O. was born addicted to opiates in 2014. Petitioner delayed prenatal care while
pregnant with T.O. and B.H., which the DHHR alleged was a strong indicator of her drug abuse.
Finally, the DHHR alleged that petitioner was not cooperative with the DHHR’s attempts to


       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, because a child and petitioner share the same
initials, we will refer to them as J.H.-1 and J.H.-2, respectively, throughout this memorandum
decision.


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verify whether she had a valid prescription for oxycodone, that she had not signed a safety plan,
and was not responding to the DHHR’s attempts to contact her.

        In April of 2017, the circuit court held an adjudicatory pre-hearing conference. The
circuit court placed J.H.-1 and T.O. with their non-abusing fathers and B.H. in the care of her
maternal grandparents. Later in April, another adjudicatory pre-hearing conference was held. At
the outset, petitioner tested positive for methadone, oxycodone, and suboxone. Petitioner
informed the circuit court that she was seeking outpatient rehabilitative services which were
scheduled to begin in May.

         The circuit court held an adjudicatory hearing in May of 2017. Petitioner was not present
but was represented by counsel. The circuit court was informed that petitioner had not been
attending her therapy sessions. The circuit court continued the matter after hearing the testimony
of two maternity care nurses from the hospital where B.H. was born. Because petitioner missed
the adjudicatory hearing, she was ordered to provide three negative drug screens prior to
reinitiating her visitation.

        The circuit court held a second adjudicatory hearing in June of 2017. Once again,
petitioner failed to attend but was represented by counsel. Petitioner’s counsel informed the
circuit court that petitioner was scheduled to enter a rehabilitation program in Winchester,
Virginia. During the hearing, petitioner’s counsel called the facility and was informed that
petitioner was scheduled to arrive by 5:00 p.m. that day. The circuit court proceeded with the
hearing and heard the testimony of two DHHR workers. Based upon the evidence introduced
over the course of the two adjudicatory hearings, the circuit court adjudicated petitioner as an
abusing parent because she failed to protect the children and neglected them by exhibiting the
same pattern of behavior as in her previous abuse and neglect case. Specifically, petitioner
abused controlled substances during her pregnancy with B.H. and exposed all three children to
her pervasive drug use.

        In July of 2017, the circuit court held a dispositional hearing. The DHHR presented the
testimony of a Child Protective Services (“CPS”) worker, who testified that petitioner was
previously involved in an abuse and neglect proceeding when she gave birth to drug-affected
T.O. During those proceedings, petitioner was given an improvement period, which she
successfully completed, and the children were returned to her care. The CPS worker noted that,
although petitioner completed the prior improvement period, the instant case was initiated
against her for similar circumstances. The CPS worker noted that petitioner tested positive for
methamphetamine and amphetamine at a multidisciplinary team (“MDT”) meeting and
subsequently failed to attend two hearings. Regarding petitioner’s rehabilitation attempts in the
instant proceeding, the CPS worker stated that she completed a thirty-day program. However,
petitioner requested that the DHHR arrange housing for her upon her release from the program,
yet she failed to contact the DHHR upon her release. Petitioner then testified that she attempted
to correct the conditions of abuse and neglect in the home.

       Ultimately, the circuit court found that petitioner had a chronic drug abuse problem that
had spanned the course of six years and was not likely to improve soon. While the circuit court
commended petitioner for completing a rehabilitation program and beginning her recovery, it


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noted that she had only recently begun to participate in the proceedings. The circuit court found
that petitioner failed to demonstrate that she could provide a permanent and safe home for the
children, noting that two of her children were born drug affected, one of whom was born after
extensive services were provided during prior proceedings. These services included parenting
and adult life skills classes, psychological evaluations, and supervised visitation. As such, the
circuit court found that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and/or neglect and that termination was necessary for the children’s welfare.
It is from this August 3, 2017, dispositional order terminating her parental rights that petitioner
appeals.2

       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).

        On appeal, petitioner argues that the circuit court erred in denying her an improvement
period. According to petitioner, her testimony established that she did contact the DHHR upon
her successful completion of and release from the rehabilitation program, continued with the
aftercare program, and learned how to live without drugs. We disagree. 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) (holding that “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) (holding that “[i]t 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] to demonstrate ‘by clear and convincing evidence, that the [parent] 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).

       2
         The respective fathers of J.H.-1 and T.O. are non-abusing parents. The permanency plan
for these children is to remain in the homes of their non-abusing fathers. The father of B.H. is
currently participating in abuse and neglect proceedings. Reunification remains the goal;
however, the concurrent permanency plan for B.H. is adoption by her maternal grandparents.
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        Petitioner argues that she acknowledged her substance abuse issues and completed a
rehabilitation program, demonstrating her ability to successfully complete an improvement
period. However, petitioner’s efforts as a whole in the underlying proceedings suggest otherwise.
This is petitioner’s second time participating in abuse and neglect proceedings. Petitioner
participated in an improvement period in 2014, following the birth of drug-affected T.O. The
DHHR provided petitioner several services and the circuit court eventually granted her an
extension of her improvement period. After regaining custody of her children, petitioner
continued to abuse drugs such that the instant petition was filed against her after another child
was born testing positive for controlled substances. Further, the CPS worker testified that,
despite the DHHR’s providing services to petitioner in the past, she continued in the same
abusive behavior in the underlying proceedings. We have previously held that it is possible for a
person to show “compliance with specific aspects of the case plan” while failing “to improve . . .
[the] overall attitude and approach to parenting.” W.Va. Dep’t of Human Servs. v. Peggy F., 184
W. Va. 60, 64, 399 S.E.2d 460, 464 (1990). Fully participating in an improvement period
necessarily requires implementing the parenting skills that are being taught through services. In
re M.M., 236 W. Va. at 115, 778 S.E.2d at 345. The record demonstrates that petitioner received
extensive services prior to this abuse and neglect proceeding and yet failed to implement any
techniques taught, as evidenced by her giving birth to a second child affected by drugs.
Additionally, petitioner tested positive for drugs throughout the proceedings below, failed to
attend the two adjudicatory hearings, and only sought treatment for her drug abuse after the
second adjudicatory hearing. Petitioner failed to demonstrate by clear and convincing evidence
that she was likely to participate in an improvement period if granted. As such, we find no error
in the circuit court’s decision denying petitioner an improvement period.

         Petitioner next argues that the circuit court erred in terminating her parental rights when
less-restrictive alternatives were available. Specifically, petitioner states that two of her children
remained with their non-abusing fathers and as such, they would not have been harmed had the
circuit court implemented an alternative disposition. However, we have previously held that
West Virginia Code § 49-4-604 “permits the termination of one parent’s parental rights while
leaving the rights of the non[-]abusing parent completely intact, if the circumstances so warrant.”
In re Emily, 208 W.Va. 325, 344, 540 S.E.2d 542, 561 (2000). Further, “simply because one
parent has been found to be a fit and proper caretaker for [the] child does not automatically
entitle the child’s other parent to retain his/her parental rights if his/her conduct has endangered
the child and such conditions of abuse and/or neglect are not expected to improve.” Id.
Therefore, petitioner is not entitled to a dispositional alternative to termination of her parental
rights simply because her children are with their non-abusing fathers.

        Further, we find no error in the termination of petitioner’s parental rights. West Virginia
Code § 49-4-604(b)(6) provides that circuit courts are to terminate 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 child’s welfare. According
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




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       [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[.]

        The record establishes that there was no reasonable likelihood that petitioner could
correct the conditions of abuse and neglect. As mentioned, this is petitioner’s second time
participating in abuse and neglect proceedings. Petitioner knew that her drug abuse could lead to
the termination of her parental rights and, despite this knowledge, continued abusing drugs after
the prior proceedings were dismissed, eventually giving birth to a second infant with controlled
substances in her system. Further, petitioner failed to attend both of her adjudicatory hearings
and only sought treatment after the second adjudicatory hearing. While petitioner argues that
less-restrictive alternatives to termination were available, we have previously 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 [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). Petitioner chronically abused
controlled substances over the course of six years. She was provided extensive services
throughout her prior case and yet returned to abusing controlled substances. While petitioner did
complete a thirty-day rehabilitation program, the record indicates that she previously
successfully completed other services in order to appease the circuit court only to fall back into
her abusive behavior. Therefore, we find that the circuit court did not err in terminating
petitioner’s parental rights as there was no reasonable likelihood that petitioner could correct the
conditions of abuse and/or neglect and termination was necessary for the children’s welfare.

        Lastly, because the proceedings in circuit court regarding B.H.’s father are still ongoing,
this Court reminds the circuit court of its duty to establish permanency for the child. 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 children
within twelve months of the date of the disposition order. As this Court has stated,


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               [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedures 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 W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4­
       604(b)(6)], 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
August 3, 2017, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: January 8, 2018


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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