                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS
                                                                                  FILED
In re S.K. III                                                                March 15, 2019
                                                                             EDYTHE NASH GAISER, CLERK
No. 18-0955 (Berkeley County 18-JA-10)                                       SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Mother B.P., by counsel Michael Santa Barbara, appeals the Circuit Court of
Berkeley County’s September 19, 2018, order terminating her parental rights to S.K. III.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”), Elizabeth Layne Diehl, filed a response on behalf of the child in support of the
circuit court’s order and a supplemental appendix. On appeal, petitioner argues that the circuit
court erred in denying her motion for a post-adjudicatory improvement period, finding that there
was no reasonable likelihood that the conditions of abuse and neglect could be corrected in the
foreseeable future, and terminating 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 January of 2018, the DHHR filed a petition alleging that petitioner abused her child by
exposing him to drug use. Specifically, the DHHR alleged that the child was present in a hotel
room where an individual died from an overdose and where drug paraphernalia was left within
the child’s reach. The DHHR further alleged that petitioner failed to provide the child with
proper care as a result of her substance abuse. Petitioner did not appear for her preliminary
hearing, but was represented by counsel.2 The circuit court continued the child in the care of the
DHHR.

       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).
       2
        At various times throughout the proceedings, petitioner was incarcerated on charges
unrelated to the removal of the child.



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        The circuit court held an adjudicatory hearing in March of 2018, but determined
petitioner was under the influence of a controlled substance. Petitioner tested positive for cocaine
and opiates. The circuit court continued the hearing. Later in March of 2018, petitioner appeared
for an adjudicatory hearing and stipulated to the allegations of abuse and neglect. The circuit
court adjudicated her as an abusing parent.

       In May of 2018, the circuit court held a hearing on petitioner’s motion for a post-
adjudicatory improvement period. Petitioner did not appear, but was represented by counsel. The
DHHR reported that petitioner was admitted to an inpatient substance abuse treatment facility,
but was discharged from that facility after admitting she was in possession of controlled
substances. The circuit court took a negative inference from petitioner’s failure to appear and
denied her motion for a post-adjudicatory improvement period.

         The circuit court held the final dispositional hearing in August of 2018. Petitioner orally
moved for a post-dispositional improvement period and the DHHR moved to terminate
petitioner’s parental rights. Petitioner, who appeared telephonically, testified that she had been
participating in an inpatient substance abuse treatment program for three weeks and was
compliant in that program. Petitioner explained that the program length was six months to one
year and that she was participating in order to receive a lighter sentence in her unrelated criminal
case. The case worker testified that, following the removal of the child, petitioner failed to
contact the DHHR until she was incarcerated in March of 2018. The worker explained that
petitioner was participating in a second inpatient substance abuse treatment program related to
her criminal proceedings, but had been unable to participate in services with the DHHR due to
her incarceration. The worker further explained that petitioner did not attempt to provide support
for, or to request visitation with, the child since the removal. Finally, the child’s current caretaker
confirmed that petitioner failed to provide any support for the child and only “briefly” inquired
regarding his well-being.

        Ultimately, the circuit court found petitioner failed to fully participate in the proceedings
with only “minimal if any compliance with terms of treatment and other services that the
[DHHR] has offered” and “[t]he last minute drug treatment by [petitioner] [did] not demonstrate
to this [c]ourt that [she] would fully participate in an improvement period.” Further, the circuit
court found “it is not in the infant’s best interest for permanency to be left in limbo when
[petitioner] has been unable to demonstrate to this [c]ourt that she could fully participate in an
improvement period” and it was unlikely that the conditions of abuse and neglect could be
remedied in the near future. Accordingly, the circuit court terminated petitioner’s parental rights
by its September 19, 2018, order. Petitioner now appeals that order.3

       The Court has previously established the following standard of review:



       The father’s parental rights were also terminated. According to the parties, the
       3

permanency plan for the child is adoption in his current relative foster placement.



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               “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, this Court
finds no error in the proceedings below.

        On appeal, petitioner first argues that the circuit court erred in denying her motion for a
post-adjudicatory improvement period.4 Petitioner asserts that there was no compelling reason to
deny her motion for a post-adjudicatory improvement period because the only evidence
introduced was the circuit court’s negative inference based on her failure to appear. We find
petitioner is entitled to no relief as she ignores that she did not satisfy her burden of proof that
she would substantially comply with the terms of an improvement period. West Virginia Code §
49-4-610(2)(B) provides that a circuit court may grant a post-adjudicatory improvement period
when the parent “demonstrates, by clear and convincing evidence, that the [parent] is likely to
fully participate in the improvement period.” 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 . . . .”). Petitioner is correct that her absence was the
only evidence introduced in regard to her motion for a post-adjudicatory improvement period.
Clearly, this evidence did not demonstrate that she was likely to fully participate in an
improvement period. Petitioner’s failure to satisfy her burden of proof is a compelling reason to
deny her motion because the child’s permanency would be needlessly delayed if petitioner was
unlikely to participate in the improvement period. Accordingly, we find that the circuit court did
not err in denying petitioner’s motion for a post-adjudicatory improvement period.

        Petitioner also argues that the circuit court erred in finding that there was no reasonable
likelihood that the conditions of abuse and neglect could be substantially corrected in the near
future and in terminating her parental rights. Petitioner believes that the circuit court wrongfully
       4
        Although petitioner requested both post-adjudicatory and post-dispositional
improvement periods, her argument on appeal focuses only on the circuit court’s denial of her
motion for a post-adjudicatory improvement period.



                                                  3
dismissed evidence regarding her second inpatient substance abuse treatment. We disagree. 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. West Virginia Code § 49-4-604(c)(3) provides that a situation in which there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes
one in which the abusing parent “ha[s] 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.”

        The circuit court correctly found that there was no reasonable likelihood that the
conditions of abuse and neglect could be corrected in the near future because petitioner failed to
follow through with rehabilitative efforts designed to reduce the neglect of the child. Petitioner
admitted that she was removed from her first inpatient substance abuse treatment facility.
Further, although petitioner was participating in a second inpatient treatment, her participation
was a requirement for a more lenient criminal sentence. The evidence also showed that petitioner
never requested contact with the child and only thought to check on him once during the
proceeding below. “We have previously pointed out that the level of interest demonstrated by a
parent in visiting his or her children while they are out of the parent’s custody is a significant
factor in determining the parent’s potential to improve sufficiently and achieve minimum
standards to parent the child.” Katie S., 198 W. Va. at 90, n.14, 479 S.E.2d at 600, n.14 (citing
Tiffany Marie S., 196 W. Va. at 228 and 237, 470 S.E.2d at 182 and 191; State ex rel. Amy M. v.
Kaufman, 196 W. Va. 251, 259, 470 S.E.2d 205, 213 (1996)). Petitioner’s disinterest in the child
was also exemplified in the first two months of the proceedings during which petitioner was free
from incarceration, but did not contact the DHHR regarding her son.

               “[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).

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4. Given that petitioner attempted and
immediately failed her first inpatient substance abuse treatment, the circuit court was not bound
to speculate on whether she could complete her current treatment and risk delaying permanency
for the child. Accordingly, the circuit court properly found that there was no reasonable
likelihood that the conditions of abuse and neglect could be substantially corrected in the near
future.

        Similarly, we find that termination was necessary for the welfare of the child. Petitioner’s
tentative completion of treatment would result in a considerable delay in permanency for the
infant child and the outcome was uncertain. We have held as follows:




                                                 4
               “Termination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [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 [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). The circuit court did not err in
finding that there was no reasonable likelihood that the conditions of abuse and neglect could be
substantially corrected or in finding that termination was necessary for the welfare of the child.
Accordingly, we find no error in the circuit court’s termination of petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 19, 2018, order is hereby affirmed.

                                                                                         Affirmed.

ISSUED: March 15, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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