                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: J.D. and J.H. Jr.                                                         FILED
                                                                                March 31, 2014
                                                                            RORY L. PERRY II, CLERK
No. 13-1072 (Mercer County 11-JA-191 & 11-JA-192)                         SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA




                                MEMORANDUM DECISION

        Petitioner Mother, by counsel David B. Kelley, appeals the Circuit Court of Mercer
County’s September 23, 2013, order terminating her parental rights to her children, J.D., age 5,
and J.H. Jr., age 3. The West Virginia Department of Health and Human Resources (“DHHR”),
by Angela Alexander Walters, its attorney, filed its response. The children’s guardian ad litem,
Catherine Bond Wallace, filed a response on behalf of the children in support of the circuit
court’s order. On appeal, petitioner argues that the circuit court should have granted her an
additional improvement period and should not have terminated 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 September of 2011, the DHHR filed an abuse and neglect petition against petitioner.
The petition related to unexplained bruising on J.D., but was later amended to include allegations
that petitioner exposed the children to domestic violence and substance abuse. Petitioner was
granted an improvement period and ordered to participate in substance abuse treatment. In
October of 2012, she was charged with non-aggravated robbery but was able to continue
participating in substance abuse treatment. The robbery case was later dismissed. In June of
2013, petitioner was removed from one of her treatment facilities because she used a credit card
without permission; however, the facility continued to provide her with outpatient services.

        In September of 2013, the circuit court held a dispositional hearing wherein it heard
evidence that petitioner tested positive on various occasions for cocaine, marijuana, and
hydromorphone. A DHHR employee testified that petitioner cooperated at the beginning of the
case, but that her cooperation had diminished, that petitioner stopped cooperating with drug
testing, and that petitioner missed visitation with her children because the worker could not
contact her. Testimony also showed that petitioner failed to complete inpatient drug treatment
ordered as part of her improvement period and allegedly engaged in criminal activity during the
improvement period through fraudulent use of a credit card and robbery. By order dated
September 23, 2013, the circuit court terminated petitioner’s parental rights, finding that while


                                                1

petitioner had made great strides in her recovery, it was not in the children’s best interest to delay
permanency any longer. It is from this order that petitioner appeals.

         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
         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 argues that she was entitled to an improvement period and that her parental
rights should not have been terminated. Specifically, she argues that because the court found she
had improved during her improvement period and was on her way to recovery, there would have
been no harm in permitting her to continue her improvement period a while longer. She argues
that under West Virginia Code § 49-6-5(c), the circuit court had the authority to grant an
improvement period as an alternative to disposition and that the circuit court failed to do so.
While we agree that West Virginia Code § 49-6-5(c)1 authorizes a circuit court to grant a
dispositional improvement period, it does not mandate an improvement period. Moreover:

         “As 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.” Syllabus point 1, In re R.J.M.,

1
    West Virginia Code § 49-6-5(c) reads in its entirety as follows:
         The court may, as an alternative disposition, allow the parents or custodians an
         improvement period not to exceed six months. During this period the court shall
         require the parent to rectify the conditions upon which the determination was
         based. The court may order the child to be placed with the parents, or any person
         found to be a fit and proper person, for the temporary care of the child during the
         period. At the end of the period, the court shall hold a hearing to determine
         whether the conditions have been adequately improved and at the conclusion of
         the hearing shall make a further dispositional order in accordance with this
         section.
                                                  2

       164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 4, in part, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Here, as the circuit
court noted, the children have not been in their parents’ care and, therefore, have been without
permanency for most of their lives. The record shows that while Petitioner Mother has shown
progress throughout the two years of the proceedings, she has also regressed at times, including
allegedly committing criminal acts and having positive drug screens. We hold that the circuit
court was not clearly erroneous in finding that reunification was not in the children’s best
interest, that there is no reasonable likelihood the conditions of neglect or abuse can be
substantially corrected in the near future, and that it is necessary for the children’s welfare to
terminate petitioner’s parental rights. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit
courts are directed to terminate parental rights upon such findings.

       For the foregoing reasons, we find no error in the circuit court’s decision and the
termination of parental rights is hereby affirmed.

                                                                                       Affirmed.


ISSUED: March 31, 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




                                                3

