                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS


In re L.T. and E.T.                                                                  FILED
                                                                                 January 17, 2020
No. 19-0445 (Marion County 17-JA-124 and 17-JA-125)                              EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA




                               MEMORANDUM DECISION



         Petitioner Mother A.L., by counsel Heidi M. Georgi Sturm, appeals the Circuit Court of
Marion County’s April 2, 2019, order terminating her parental rights to L.T. and E.T.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a
response in support of the circuit court’s order. The guardian ad litem, Frances Whiteman, 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 imposing a less-
restrictive dispositional alternative.


        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, petitioner’s counsel filed the appellate brief in accordance with Rule
10(c)(10)(b) (2016) of the West Virginia Rules of Appellate Procedure, which provides that

        [i]n extraordinary circumstances, if counsel is ethically compelled to disassociate
        from the contentions presented in the brief, counsel must preface the brief with a
        statement that the brief is filed pursuant to Rule 10(c)(10)(b). Counsel should not
        inject disclaimers or argue against the client’s interests. If counsel is ethically
        compelled to disassociate from any assignments of error that the client wishes to
        raise on appeal, counsel must file a motion requesting leave for the client to file a
        pro se supplemental brief raising those assignments of error that the client wishes
        to raise but that counsel does not have a good faith belief are reasonable and
        warranted.

Pursuant to this rule, petitioner’s counsel filed a motion requesting leave for petitioner to file a pro
se supplemental brief. This motion was granted, and petitioner was directed to file a supplemental
brief on or before June 28, 2019. Petitioner, however, did not file a supplemental brief.
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       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 2017, the DHHR filed a child abuse and neglect petition against petitioner
alleging that she abused and neglected L.T. and E.T. Specifically, referrals indicated that drugs
were being sold in petitioner’s home, drug addicts frequented the home, and one child indicated
she was afraid of people in the home. Further, the DHHR alleged that methamphetamine residue
and paraphernalia were found in the home, and petitioner admitted to abusing methamphetamine
the previous night with her boyfriend while the children were asleep. Petitioner also admitted to a
history of substance abuse, but claimed she had not “done Subutex in a couple of weeks.” She
further claimed that she did not sell drugs. However, a police officer discovered pills, two spoons
with cotton on them, and scales in the home. The DHHR concluded that petitioner was unwilling
or unable to perform her parental duties and responsibilities, was actively abusing drugs, and her
choices and drug abuse affected the safety of the children. On September 27, 2017, petitioner
waived her preliminary hearing.

        In October of 2017, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to using illegal drugs while caring for her children, which jeopardized their safety. The
circuit court accepted petitioner’s stipulation, adjudicated her as an abusing parent, and granted
her a post-adjudicatory improvement period. As part of the terms and conditions, petitioner was
required to submit to random drug screens, seek substance abuse treatment, participate in parenting
and adult life skills classes, and participate in supervised visitation with the children. At the close
of her post-adjudicatory improvement period, petitioner was granted an extension. Thereafter, a
multidisciplinary team (“MDT”) meeting was held in November and the team decided to suspend
petitioner’s supervised visits due to her noncompliance with drug screening. Additional MDT
meetings held in January and February of 2018, revealed that petitioner had consistently cancelled
appointments with her service providers, was sporadic in her attendance with adult life skills
sessions, and had failed to regularly drug screen. At the May MDT meeting, petitioner claimed
that she was living with her parents and seeking drug detoxification. However, petitioner failed to
attend the June MDT meeting and continued to test positive for drugs on the few occasions that
she screened.

         In July of 2018, the circuit court held a dispositional hearing. Petitioner requested and was
granted a post-dispositional improvement period after she proffered her recent completion of
substance abuse detoxification on July 22, 2018. Immediately thereafter, the DHHR learned that
petitioner tested positive for methamphetamine at the time of her alleged detoxification. Also soon
after, the DHHR lost regular contact with petitioner, and she failed to regularly call the children.
The few times that petitioner submitted to drug testing revealed that she was positive for
methamphetamine. Petitioner failed to remain compliant with her MDT meeting attendance and
recommendations. In response, the DHHR suspended petitioner’s visitations with the children and
filed a motion to revoke her post-dispositional improvement period.



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        In December of 2018, the circuit court held a hearing upon the DHHR’s motion to revoke,
wherein the DHHR and the guardian argued that petitioner had not successfully completed her
post-dispositional improvement period because she failed to regularly drug screen, regularly attend
MDT meetings, keep in contact with the DHHR, and follow through with the MDT’s
recommendation of in-patient rehabilitation. The circuit court revoked petitioner’s improvement
period and set the matter for disposition. Thereafter, petitioner’s noncompliance continued with
no improvement.

        In March of 2019, the circuit court held the final dispositional hearing. Specifically, the
circuit court found that “[d]espite [petitioner’s] initial participation in Adult Life Skills, she was
repeatedly informed by the MDT that she needed to attend in-patient treatment for her drug
addiction, in order to have visits with her children and achieve reunification.” Further, it found that
petitioner “continuously missed drug screens, and for the screens she did attend the drug screens
were positive for illegal drugs.” Lastly, it found that petitioner “never participated in any
meaningful drug treatment” as recommended by her service providers, failed to attend any drug
screenings after October of 2018, and had no reasonable explanation for not taking any action to
remedy her drug addiction. Ultimately, the circuit court concluded that there was no reasonable
likelihood that the conditions of abuse and neglect could be substantially corrected in the near
future and that it was in the best interest of the children to terminate petitioner’s parental rights.
Accordingly, her parental rights were terminated by order entered April 2, 2019. It is from this
dispositional order terminating petitioner’s parental rights that she appeals.2

       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).

       On appeal, petitioner’s overarching argument is that the circuit court erred in terminating
her parental rights without imposing a less-restrictive dispositional alternative pursuant to West



       The father’s parental rights were also terminated during the proceedings below. The
       2

permanency plan for the children is adoption by their paternal aunt.


                                                  3
Virginia Code § 49-4-604(b)(5) (2019).3 In support, she first argues that she was unable to address
her substance abuse issues within the prescribed timeframes. Specifically, she argues, “knowing
that it takes multiple attempts to [become and remain] drug-free, it was impossible for [her] to
accomplish this goal in a timely fashion.” Petitioner requests the Court review the timelines and
expectations of child abuse and neglect proceedings in light of the overwhelming number of
parental terminations based upon drug addiction.

       We begin by reiterating our holding 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] 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).

        Moreover, 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 children’s welfare. According to West Virginia Code § 49-4-604(c)(3), a
situation in which there is “[n]o reasonable likelihood that conditions of neglect or abuse can be
substantially corrected” includes one in which the parent has

       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, as
       evidenced by the continuation or insubstantial diminution of conditions which
       threatened the health, welfare or life of the child.

         According to the record, not only was petitioner granted a post-adjudicatory improvement
period, she was also granted an extension of that improvement period despite her positive drug
screens and sporadic attendance at MDT meetings and adult life skills classes. Additionally,
petitioner was granted a post-dispositional improvement period despite her positive drug screens
taken during the time of her alleged detoxification. The record further establishes that petitioner
initially complied with services but eventually ceased regular drug screening and regular contact


       3
           Pursuant to West Virginia Code § 49-4-604(b)(5),

       [u]pon a finding that the abusing parent or battered parent or parents are presently
       unwilling or unable to provide adequately for the child’s needs, [a circuit court
       may] commit the child temporarily to the care, custody, and control of the state
       department, a licensed private child welfare agency, or a suitable person who may
       be appointed guardian by the court.
                                                  4
with the DHHR. Her compliance with services was sporadic, at best, and she failed to successfully
complete any aspect of her improvement periods. She failed to respond to or follow through with
rehabilitative efforts designed to reduce or prevent the abuse and neglect of her children. Petitioner
failed to comply with supervised visitation and calls with the children and failed to comply with
any of the MDT’s recommendations, including failing to comply with any sort of meaningful
substance abuse treatment such as in-patient rehabilitation. Additionally, petitioner tested positive
for methamphetamines throughout the proceedings and failed to adequately acknowledge her
issues with substance abuse. Given the evidence of petitioner’s lack of meaningful participation in
the underlying proceedings, we agree with the circuit court’s findings that there was no reasonable
likelihood that she could correct the conditions of abuse or neglect in the near future and that
termination of her parental rights was necessary for the children’s welfare.

        We further note that a “parent’s rights are necessarily limited . . . [as to improvement
periods] because the pre-eminent concern in abuse and neglect proceedings is the best interest of
the child subject thereto.” In re J. G., 240 W. Va. 194, 204, 809 S.E.2d 453, 463 (2018) (quoting
In re Emily, 208 W. Va. 325, 336, 540 S.E.2d 542, 553 (2000)). And,

       the statutory limits on improvement periods (as well as our case law limiting the
       right to improvement periods) dictate that there comes a time for decision, because
       a child deserves resolution and permanency in his or her life, and because part of
       that permanency must include at minimum a right to rely on his or her caretakers
       to be there to provide the basic nurturance of life.

State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 260, 470 S.E.2d 205, 214 (1996). Further, this
Court has noted that “[i]mprovement periods are . . . regulated, both in their allowance and in their
duration, by the West Virginia Legislature, which has assumed the responsibility of implementing
guidelines for child abuse and neglect proceedings generally.” In re Emily, 208 W. Va. at 334, 540
S.E.2d at 551. While petitioner argues that parents addicted to drugs need more time than the
length of time prescribed by statute as designated by the West Virginia Legislature, our case law
makes it abundantly clear that a parent’s opportunity to continue to participate in an improvement
period is not upheld to the detriment of the children. Accordingly, we decline to find, as petitioner
urges, that these statutory timelines are inherently insufficient.

        Next, petitioner claims that her children’s ages of eleven and seventeen warranted
imposition of a less-restrictive dispositional alternative. We disagree, especially considering that
petitioner cites no authority or other evidence that, due to the children’s ages, termination of her
parental rights would not have been in their best interests. Accordingly, we find that petitioner is
entitled to no relief in this regard.

         Lastly, petitioner argues that the circuit court should have considered the children’s wishes
when determining disposition, and, therefore, should have granted her a less-restrictive
dispositional alternative. We find petitioner’s argument wholly without merit as she concedes on
appeal that both of the children indicated to the guardian that they desired the termination of her
parental rights. Petitioner contends that her children’s wishes were based upon their anger at her
failure to address her drug addiction and “not based upon their true wishes.” However, regardless
of the children’s motivations, any consideration of their wishes by the circuit court was appropriate

                                                  5
pursuant to West Virginia Code § 49-4-604(b)(6)(C) which provides, in relevant part, that “the
court shall give consideration to the wishes of a child 14 years of age or older or otherwise of an
age of discretion as determined by the court regarding the permanent termination of parental
rights.” Accordingly, we find that petitioner is entitled to no relief in this regard.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its April
2, 2019, order is hereby affirmed.

                                                                                           Affirmed.

ISSUED: January 17, 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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