                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

In Re: M.M.                                                                       FILED
                                                                                  April 28, 2014
                                                                             RORY L. PERRY II, CLERK
No. 14-0027 (Raleigh County 11-JA-237)                                     SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Mother filed this appeal by her counsel, Jennifer D. Crane, from an order
entered on December 11, 2013, in the Circuit Court of Raleigh County, which terminated her
parental rights to two-year-old M.M. The guardian ad litem for the child, Matthew A. Victor,
filed a response in support of the circuit court’s order. The Department of Health and Human
Resources (“DHHR”), by its attorney, Michael L. Jackson, also filed a response in support of the
circuit court’s order. Petitioner argues that the circuit court erred by terminating her parental
rights when she remedied the conditions of abuse and neglect.

        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 2011, the DHHR filed a petition for abuse and neglect against M.M.’s
parents. Petitioner, who was then thirty-six years old, admitted to “shooting up oxycontin” since
she was twenty-two years old and while she was pregnant with M.M. At the adjudicatory hearing
in January of 2012, petitioner stipulated that this behavior placed her child at risk for being an
abused and/or neglected child. The circuit court accepted petitioner’s stipulations and granted her
a six-month post-adjudicatory improvement period. After a hearing in January of 2013, the
circuit court found that petitioner was progressing and that the child was “being transitioned back
to her but [the transition] is not complete and the [DHHR] and the parties agree to continue the
case as to [petitioner] for complete reunification . . .[and] [a]n improvement period review
hearing on [petitioner] . . . will be held . . . on Friday, March 8, 2013.” A few days after the
March 8, 2013, hearing, petitioner was involuntarily discharged from her inpatient rehabilitation
center. She lost contact with the DHHR shortly thereafter and did not appear at the dispositional
hearing held in October of 2013. At this hearing, the circuit court accepted a proffer from the
family’s service provider that petitioner failed to visit with her child and that a bond was not
established between petitioner and her child. Hearing no rebuttal from petitioner’s counsel, the
circuit court terminated petitioner’s parental rights to M.M. Petitioner now files this appeal.

       This 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

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       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).

        Petitioner’s sole argument on appeal is that the circuit court erred by terminating her
parental rights when she remedied the conditions of abuse and neglect. Petitioner asserts that the
circuit court previously entered orders in October of 2012 and January of 2013 that directed the
process of reunification between petitioner and her child.

        Upon our review of the parties’ briefs and record on appeal, we find no error by the
circuit court. We bear in mind the following:

       “[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).

Syl. Pt. 4, 228 W.Va. 89, 717 S.E.2d 873 (2011).“‘Although parents have substantial rights that
must be protected, the primary goal in cases involving abuse and neglect, as in all family law
matters, must be the health and welfare of the children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79,
479 S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013).
Under West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights
when there is no reasonable likelihood that conditions of neglect or abuse can be substantially
corrected. West Virginia Code § 49-6-5(b)(3) explains that circumstances in which a parent fails
to respond to rehabilitative efforts or a reasonable family case plan are considered circumstances
in which there is no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected.

        Our review of the record reveals that in March of 2013, petitioner was discharged from
her inpatient rehabilitation center because she made an unauthorized purchase on another
resident’s debit card. Following this discharge, petitioner made arrangements to live with her
sister in Indiana with the understanding that she would continue her treatment by completing
drug screens, obtaining and maintaining employment and housing, attending Alcoholics


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Anonymous and Narcotics Anonymous meetings, and calling her service provider in West
Virginia at least once a week. In August of 2013, however, the DHHR’s summary report
indicated that petitioner had not produced any of her required drug screens, had not remained in
contact with her service provider, and had not been to any alcohol or drug education classes. The
DHHR also noted that petitioner’s current location was unknown, but that the internet and other
sources indicated that petitioner previously stayed in Texas and had potential plans to move to
North Carolina. Petitioner also lost contact with her child, making the planned reunification
impossible. This evidence was sufficient to support the circuit court’s findings and conclusions
that there was no reasonable likelihood that conditions of abuse and neglect could be
substantially corrected in the near future, and that termination was necessary for the child’s
welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), and in conjunction with West Virginia
Code § 49-6-5(b)(3), circuit courts are directed to terminate parental rights upon such findings.

       For the foregoing reasons, we affirm.

                                                                                       Affirmed.

ISSUED: April 28, 2014

CONCURRED IN BY:

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




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