                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS
In re: R.B. and C.B.                                                                FILED
                                                                                 June 16, 2017
No. 16-0880 (Hancock County 15-JA-42 & 15-JA-43)                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
                              MEMORANDUM DECISION
        Petitioner Mother M.R., by counsel Ann Marie Morelli, appeals the Circuit Court of
Hancock County’s August 18, 2016, order terminating her parental rights to then two-year-old
R.B. and one-year-old C.B.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”), Cathryn A. Nogay, filed a response on behalf of the children in
support of the circuit court’s order.2 On appeal, petitioner argues that the circuit court erred in
terminating her parental rights to the children when a less-restrictive dispositional alternative
existed.

        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 2015, the DHHR filed an abuse and neglect petition against the
children’s parents. In the petition, the DHHR claimed that the parents were involved in a
domestic incident that left the children (both under the age of three) alone in the home without
supervision and that the parents abused heroin. Thereafter, petitioner waived her right to a
preliminary hearing.

       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). We further note that petitioner’s brief fails to include a
section setting forth the current status of the children and parents and the permanency plans for
the children. See W.Va. R. App. P. 11(i).
       2
         The guardian attached an exhibit (“Exhibit 1”) to her response brief. We note that the
West Virginia Rules of Appellate Procedure to not provide for “exhibits” as attachments to
briefs, and the guardian did not file a motion to supplement the appendix record with that exhibit.
See W.Va. R. App. P. 7(g) (providing that “[a] party may file a motion for leave to file a
supplemental appendix”). As it was not properly made a part of the appendix record in this
appeal, we decline to consider the guardian’s exhibit.

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        In February of 2016, the circuit court held a hearing at which petitioner agreed to enter
inpatient drug treatment. The circuit court ordered petitioner to enter inpatient drug treatment,
and it stated that if she failed to do so, the matter would proceed to adjudication. Thereafter, it
was reported that petitioner failed to enter a treatment program and that she tested positive for
controlled substances on more than one occasion.

        In March of 2016, the circuit court held an adjudicatory hearing. Petitioner did not appear
in person, but was represented by counsel. Based on petitioner’s continued substance abuse and
failure to participate in the proceedings, the circuit court found that petitioner was an abusing
parent.3 The matter was scheduled for disposition.

       In April of 2016, the circuit court held a dispositional hearing. Petitioner again did not
appear in person at this hearing, but was represented by counsel. Reportedly, petitioner was
admitted into a detoxification program prior to the hearing. For that reason, the circuit court
continued the dispositional hearing to May of 2016. The dispositional hearing was again
continued due to reports that petitioner was arrested on drug-related charges.

       In June of 2016, the circuit court held a final dispositional hearing. Despite having been
released from incarceration approximately five days prior to the hearing, petitioner failed to
appear in person, but was represented by counsel. At the hearing, it was noted that petitioner was
admitted into a detoxification program in April of 2016, but she had left the program the same
day. Given petitioner’s failure to correct her substance abuse issues, by order entered on August
18, 2016, the circuit court terminated petitioner’s parental rights to the children.4 This appeal
followed.

       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
       3
         While petitioner was referred to below as “an abusive and neglectful parent,” we note
that the phrase “neglectful parent” does not appear in the statutory framework for abuse and
neglect proceedings in this State. Instead, West Virginia Code § 49-1-201 defines “abusing
parent” as “a parent . . . whose conduct has been adjudicated by the court to constitute child
abuse or neglect as alleged in the petition charging child abuse or neglect.” (Emphasis added.)
As such, the Court will refer to petitioner as an “abusing parent” in this memorandum decision,
as that phrase encompasses parents who have been adjudicated of abuse and/or neglect.
       4
        The parental rights of both parents were terminated below. According to the guardian,
the children are currently placed with their maternal grandmother and step-grandfather, where
they have been since the beginning of these proceedings in 2015. The permanency plan for the
children is adoption into that home.


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       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).

         On appeal, petitioner argues that the circuit court erred in terminating her parental rights
to the children without employing a less-restrictive dispositional alternative. Petitioner asserts
that law favors the least-restrictive alternative and that the circuit court could have granted the
children’s grandparents legal guardianship, which would have prevented the need for the
termination of petitioner’s parental rights. Petitioner acknowledges that “[t]ermination [of
parental rights] . . . may be employed without the use of intervening[,] less[-]restrictive
alternatives when it is found that there is no reasonable likelihood . . . that conditions of neglect
or abuse can be substantially corrected.” In re Katie S., 198 W.Va. at 82, 479 S.E.2d at 592, syl.
pt. 7, in part. West Virginia Code § 49-4-604(c)(3) provides that “no reasonable likelihood that
the conditions of abuse or neglect can be substantially corrected” exists when “[t]he abusing
parent . . . ha[s] not responded to or followed through with a reasonable family case plan or other
rehabilitative efforts[.]”

        Contrary to petitioner’s claim that she could have substantially corrected her substance
abuse issues in the near future if granted more time to do so, the evidence showed that petitioner
had failed to respond or follow through with rehabilitative efforts in this case. Based on
petitioner’s repeated failures to comply with rehabilitative efforts and her continued drug abuse,
we find no error in the circuit court’s termination of petitioner’s parental rights without
employing a less-restrictive dispositional alternative.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 18, 2016, order is hereby affirmed.

                                                                                          Affirmed.

ISSUED: June 16, 2017


CONCURRED IN BY:

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

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