                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                   FILED
In Re: T.M.                                                                       April 28, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
No. 13-1227 (Mercer County 12-JA-184 through 12-JA-187)                        OF WEST VIRGINIA




                                 MEMORANDUM DECISION

        Petitioner Mother, by counsel Natalie N. Hager, appeals the Circuit Court of Mercer
County’s December 2, 2013, order terminating her parental rights to T.M. The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel William P. Jones, filed its
response in support of the circuit court’s order. The guardian ad litem, Michael P. Cooke, filed a
response on behalf of the child supporting the circuit court’s order. On appeal, petitioner alleges
that the circuit court erred in terminating her parental rights without granting her a dispositional
improvement period.

        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 October of 2012, the DHHR filed its initial abuse and neglect petition alleging that the
parents allowed their child, T.M., to ingest prescription medication. The child presented at the
emergency room with bruising to his forehead, and the parents indicated that he ingested
Klonopin. The bruising was a result of the child falling because of the Klonopin’s effects. At the
hospital, the child tested positive for benzodiazepines. A Child Protective Services (“CPS”)
worker noticed “track marks” on petitioner’s arm and, upon submitting to a drug screen, she
tested positive for opiates. Petitioner then admitted to having intravenously injected a pill on
October 20, 2012. Additionally, a nurse advised CPS that petitioner also presented to the
emergency room on October 17, 2012, due to withdrawal.

        The circuit court held a preliminary hearing in November of 2012, during which
petitioner waived her right to the same. Later that month, the circuit court held an adjudicatory
hearing during which it found that petitioner neglected the child because of her existing
substance abuse problem and by leaving him with the biological father, who was also abusing
drugs. Petitioner was granted a post-adjudicatory improvement period. In May of 2013,
petitioner was granted an extension to her post-adjudicatory improvement period. However, in
August of 2013, the DHHR reported that petitioner was not complying with the terms of her
improvement period. During a review hearing, petitioner moved for a dispositional improvement
period and the circuit court set the matter for disposition. On October 25, 2013, the circuit court
held a dispositional hearing and found that petitioner failed to follow the terms and conditions of

                                                 1
the family case plan. The circuit court ultimately terminated petitioner’s parental rights. It is
from the dispositional 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
       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 either the circuit court’s denial of an improvement period or termination of
petitioner’s parental rights. West Virginia Code § 49-6-12(c) grants circuit courts discretion in
awarding dispositional improvement periods and, as a prerequisite, requires a parent to
demonstrate by clear and convincing evidence that he or she “is likely to fully participate in the
improvement period.” Based upon the record, it is clear petitioner could not satisfy this
requirement.

        At disposition, the circuit court found that petitioner failed to follow the terms and
conditions of the family case plan. Specifically, the circuit court found that petitioner did not
adequately and fully participate in visitation with her child or parenting classes, which were
terms of her post-adjudicatory improvement period. The circuit court also found that petitioner
failed to acknowledge her need for substance abuse treatment, actively avoided the substance
abuse screening process, and tested positive for drugs during the proceedings. In fact, the circuit
court found that petitioner appeared to be under the influence during the dispositional hearing.
As such, the circuit court found that petitioner made no progress with addressing her addiction.

        Based upon this evidence, the circuit court found that petitioner failed to respond to or
follow through with the reasonable family case plan or other rehabilitative efforts designed to
reduce or prevent the child’s neglect and that she habitually abused or was addicted to controlled
substances to the extent that her proper parenting skills were seriously impaired. Pursuant to
West Virginia Code §§ 49-6-5(b)(1) and (3), these constitute situations in which there is no
reasonable likelihood that the conditions of abuse or neglect can be substantially corrected in the
near future. Additionally, the circuit court found that termination of petitioner’s parental rights
was necessary for the child’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit
courts are directed to terminate parental rights upon such findings.



                                                2
       While petitioner argues that she should have been entitled to a dispositional improvement
period because she needed additional time to seek treatment, especially in light of the stress
caused by her mother’s illness and eventual death during her earlier improvement period, the
Court finds this argument unpersuasive. We have previously held that

       “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.”
       Syllabus point 1, In re R.J.M., 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). For the foregoing
reasons, the Court finds no error in the circuit court’s decision to terminate petitioner’s parental
rights without first granting her a dispositional improvement period.

     For the foregoing reasons, we find no error in the decision of the circuit court and its
December 2, 2013, order is hereby affirmed.


                                                                                         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




                                                 3
