                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


In re C.W.-1 and A.S.                                                               FILED
                                                                                 June 24, 2020
No. 19-0923 (Randolph County 18-JA-159 and 18-JA-160)                           EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION


        Petitioner Mother C.W.-2, by counsel Timothy H. Prentice, appeals the Circuit Court of
Randolph County’s September 11, 2019, order terminating her parental rights to C.W.-1 and A.S. 1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Melissa T. Roman, filed a response on behalf of the children also in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating her
parental rights without first granting her an improvement period or employing a less-restrictive
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 2018, the DHHR filed a child abuse and neglect petition against the mother
and her boyfriend, alleging that they abused drugs in the home. Specifically, the DHHR alleged
that it received a referral wherein the reporter claimed that petitioner abused drugs, slurred her
words, stumbled, rambled, and made no sense when she spoke. A Child Protective Services
(“CPS”) worker interviewed A.S., who disclosed that petitioner “sleeps a lot” and “take[s] pills.”
A.S. also disclosed observing C.W.-1’s father “hit her [petitioner], yell in her face, and say bad
words to her.” After speaking with A.S., the CPS worker proceeded to petitioner’s home. The

       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 one of the children and petitioner share the
same initials, we will refer to them as C.W.-1 and C.W.-2, respectively, throughout this
memorandum decision.
                                                  1
worker believed petitioner to be under the influence of drugs as she was very nervous, shaking,
stumbling around the home, slurring her words, and struggling to form complete sentences. Law
enforcement officers aided the CPS worker in removing the children from the home. One officer
observed “marijuana wax” in the home and, after performing a search, found methamphetamine
and Klonopin. The boyfriend admitted trading Suboxone for methamphetamine and other drugs.
When asked whether she was aware of drug trafficking going on in the home, petitioner stated,
“I’m not sure.” Thereafter, the DHHR instructed petitioner to submit to a drug screen, but she
failed to do so. In sum, the DHHR alleged that petitioner was unable to protect the children due to
her pervasive drug use, which rendered her unable to adequately supervise the children and ensure
that their needs were met.

       In February of 2019, the DHHR filed an amended petition after the children made
additional disclosures of petitioner’s drug abuse during a forensic interview. A.S. reported
observing petitioner “put stuff up [her] nose with a red straw.” A.S. stated that the “stuff” was
white and that petitioner chopped up the substance with a credit card. Also, ten-year-old A.S.
reported that she had to take care of C.W.-1 and do things such as prepare food, clean the house,
and do laundry.

        At an adjudicatory hearing held in March of 2019, petitioner stipulated to abusing drugs
and engaging in domestic violence. The circuit court accepted petitioner’s stipulation and
adjudicated her as an abusing parent. In May of 2019, the circuit court held a dispositional hearing
wherein it was advised that supervised visitation between petitioner and the children had been
suspended after petitioner produced several diluted drug screens. Petitioner requested a
continuance of the dispositional hearing on the basis that she recently entered and completed a
seven-day detoxification program at a facility in Clarksburg, West Virginia. The circuit court
granted a continuance in order to provide petitioner the opportunity to obtain documentation that
she had, in fact, completed the detoxification program. The circuit court also ordered petitioner to
submit to a drug screen following the hearing. The results were positive for buprenorphine, a
controlled substance for which petitioner did not have a prescription.

       The dispositional hearing was continued once more at petitioner’s request, as she had to
attend a medical appointment regarding an upcoming surgery. The circuit court granted the
continuance and instructed petitioner to provide documentation of her medical appointment. In
July of 2019, the guardian filed a report indicating that petitioner continued to test positive for
drugs throughout the proceedings and ceased submitting to screens entirely in May of 2019. The
guardian opined that despite petitioner’s severe drug addiction, she had done nothing to address
the same. The guardian recommended termination of petitioner’s parental rights.

        In August of 2019, the circuit court held a dispositional hearing. The DHHR presented the
testimony of a Community Corrections worker who testified that petitioner tested positive for a
myriad of substances throughout the proceedings, including methamphetamine, benzodiazepine,
and oxycodone. According to a service provider, petitioner was not consistent in participating in
parenting and adult life skills classes and missed or attempted to reschedule several sessions. The
service provider also testified that supervised visits were suspended based upon petitioner’s failure
to submit negative drug screens or provide proof of prescriptions. A DHHR worker testified that
the facility at which petitioner claimed to have attended a detoxification program did not, in fact,

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provide such services. The DHHR worker also testified that petitioner missed three drug screens
in February of 2019, five screens in March of 2019, three screens in April of 2019, five screens in
May of 2019, and five screens in June of 2019.

       Petitioner testified in support of her motion for an improvement period, stating that she
“did the call ins every day. I checked in every day for months.” Petitioner claimed that she
complied with what was required of her and “then out of no where [sic] . . . I wasn’t allowed to
see my kids anymore.” Petitioner also claimed that she had a substance abuse problem “up until a
few months ago,” but no longer had issues after attending counseling and obtaining Vivitrol shots. 2
She conceded that she did not submit to drug screens after prior hearings as directed by the circuit
court. Nevertheless, petitioner maintained that she would fully comply with the terms and
conditions of an improvement period.

        The circuit court verified that petitioner failed to provide documentation to support her
claims that she attended a detoxification program, received the Vivitrol shot as part of her
detoxification program, or was absent from the previous hearing due to treatment for a medical
problem. Further, the circuit court ordered petitioner to submit a drug screen, which revealed that
she tested positive for methamphetamine. Ultimately, the circuit court denied petitioner’s motion
for a post-adjudicatory improvement period. The circuit court found that petitioner “had nine
months to demonstrate that [she] will participate in an improvement period and [she] can’t even
comply with [the] court’s order to walk across the street after hearings and screen.” The circuit
court also found that the DHHR provided petitioner with several opportunities, but she rejected
those opportunities and blamed the DHHR for her failures. The circuit court found that petitioner
was presently unwilling or unable to adequately provide for the children’s needs. Further, the
circuit court determined that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and neglect in the near future and that termination of her parental rights was
necessary for the children’s welfare. Petitioner appeals the circuit court’s September 11, 2019,
dispositional order terminating her parental rights. 3

       The Court has previously established the following standard of review in cases such as this:

               “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

       2
         Vivitrol “is a nonaddictive, once-monthly treatment for opioid and alcohol dependence. It is
an antagonist medication that blocks opioid receptors in the brain for one month at a time, helping
patients to prevent relapse to opioid dependence, following detox, and fight alcohol dependence while
they      focus     on     counseling.”     Vivitrol,     Help      Reinforce     Your     Recovery,
https://www.vivitrol.com/content/pdfs/integrated-patient-brochure.pdf.
       3
         The respective fathers’ parental rights were also terminated below. The permanency plan
for the children is adoption by A.S.’s paternal grandfather.
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       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 argues that the circuit court erred in terminating her parental rights without first
granting her a post-adjudicatory improvement period. 4 Petitioner contends that her testimony
demonstrates she was likely to fully participate in an improvement period. Moreover, petitioner
contends that, despite the fact that the children “have expressed a desire not to return to live with
[her], they remain bonded.” 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) (“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] 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).

        Having reviewed the record, we find that the circuit court did not err in denying petitioner’s
request for an improvement period. The overwhelming evidence set forth below demonstrates that
petitioner failed to comply with the requirement that she consistently submit to drug screens.
Testimony at the dispositional hearing indicated that she missed numerous screens. In fact,
petitioner missed twenty-one drug screens between February of 2019 and June of 2019. Petitioner
also tested positive for controlled substances and illicit drugs nearly thirty times between January
of 2019 and the dispositional hearing held in August of 2019. Incredibly, petitioner testified that
she no longer had a substance abuse issue despite testing positive for methamphetamine during the
dispositional hearing. Moreover, petitioner blamed the DHHR for her lack of participation and
stated she did not understand why her supervised visits with the children were terminated. We
have previously held that failure to acknowledge the issues of abuse and neglect render an


       4
         Petitioner briefly states that the circuit court failed to consider guardianship with some of
her relatives who were fit, able, and willing to take the children and that the DHHR’s staffing
issues precluded her from obtaining an improvement period. However, petitioner fails to cite to
any portion of the record demonstrating that she has relatives who desired placement of the
children, that the circuit court refused to consider them, or that the DHHR was experiencing
staffing issues that prevented her from participating in services. “‘Our general rule is that
nonjurisdictional questions . . . raised for the first time on appeal, will not be considered.’ Shaffer
v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n.20, 524 S.E.2d 688, 704 n.20 (1999).” Noble
v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009). Accordingly,
we decline to address these issues on appeal.
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improvement period an “exercise in futility.” In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352,
363 (2013) (citation omitted). Based on petitioner’s continued substance abuse and failure to
accept responsibility for her actions, we find no error in the circuit court’s denial of her motion for
an improvement period.

        The evidence as set forth above also demonstrates that the circuit court did not err in
terminating petitioner’s parental rights. West Virginia Code § 49-4-604(b)(6) (2019) 5 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 children’s welfare. West Virginia Code § 49-4-604(c)
(2019) provides that a situation in which there is “[n]o reasonable likelihood that [the] conditions
of neglect or abuse can be substantially corrected” includes when the abusing parent has
“demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own or
with help.”

         Here, the evidence demonstrates that there was no reasonable likelihood that petitioner
could correct the conditions of neglect in the near future. As shown above, petitioner failed to
participate in court-ordered drug screens, tested positive for a myriad of controlled substances and
illicit drugs during the proceedings, and blamed the DHHR for her failure to participate. Further,
petitioner failed to participate in supervised visitation with the children, as well as parenting and
adult life skills classes. Additionally, petitioner lied about her participation in a detoxification
program and failed to produce documentation to support several claims she made throughout the
proceedings. While petitioner claims she should have been granted a less-restrictive alternative to
the termination of her parental rights, we have previously 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).

Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Based on the foregoing, it is
clear 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. We find that the
circuit court’s findings are fully supported by the record below and, therefore, find no error in the
termination of petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 11, 2019, order is hereby affirmed.




       5
        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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                                  Affirmed.

ISSUED: June 24, 2020


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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