                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS
                                                                                    FILED
In re J.B.                                                                      January 14, 2019
                                                                                EDYTHE NASH GAISER, CLERK
No. 18-0774 (Harrison County 2017-JA-045)                                       SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Mother M.C., by counsel Allison S. McClure, appeals the Circuit Court of
Harrison County’s August 3, 2018, order terminating her parental and custodial rights to J.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”), Jenna L. Robey, filed a response on behalf of the child in support of the circuit
court’s order. On appeal, petitioner argues that the circuit court erred in terminating her parental
and custodial rights rather than imposing a less-restrictive dispositional alternative.

        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 March of 2017, the DHHR filed a petition alleging that petitioner exposed the child to
an unsafe environment by leaving drugs and drug paraphernalia in reach of the child.
Additionally, the DHHR alleged that the child “had not been in school for months.” The DHHR
alleged that petitioner was charged criminally with one count of child neglect creating risk of
injury and one count of petit larceny, and incarcerated as a result of those charges. Petitioner
waived her preliminary hearing.

       The circuit court held an adjudicatory hearing in June of 2017, and petitioner stipulated
that she had a substance abuse problem which caused her to exercise inappropriate parental
judgment. Petitioner admitted that her substance abuse contributed to the unsafe conditions to
which the child was exposed and his educational neglect. In August of 2017, petitioner moved
                                                            
              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).




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for a post-adjudicatory improvement period and agreed to participate in random drug screening,
individual and family counseling, parenting and adult life skills classes, a psychological and
substance abuse evaluation, and to remain free from drugs and alcohol. The circuit court granted
petitioner’s motion.

        Petitioner remained incarcerated for the majority of her improvement period and was
unable to participate in services provided by the DHHR. Petitioner was released to home
incarceration in March of 2018, and petitioner filed a motion for a post-dispositional
improvement period. The circuit court held a dispositional hearing and heard testimony that
petitioner participated in services during her home incarceration. However, petitioner tested
positive for Suboxone and methamphetamine on two separate tests and was incarcerated for ten
days as a result. Petitioner’s home incarceration supervisor indicated that he was petitioning to
revoke petitioner’s home incarceration, but that the motion had not yet come before the criminal
court. Further evidence was introduced that petitioner failed to appear for drug screens while she
was not incarcerated in August of 2017 and also missed drug screens in March of 2018.
Additionally, a DHHR worker testified that petitioner had not completed the services required by
her improvement period and had not visited with the child since August of 2017. Ultimately, the
circuit court held petitioner’s motion in abeyance until the resolution of the motion to revoke
petitioner’s home incarceration.

        The circuit court held a second dispositional hearing in April of 2018. Petitioner
presented testimony that she was released to home incarceration and providing negative drug
screens for two weeks since her release. The circuit court granted petitioner a three-month post-
dispositional improvement period and ordered that she complete the list of services from her
previous improvement period. In May of 2018, the DHHR filed a motion to revoke petitioner’s
post-dispositional improvement period on the basis that petitioner violated the home
incarceration requirements and was reincarcerated.

         In June of 2018, the circuit court held the final dispositional hearing, and the DHHR
presented evidence that petitioner tested positive twice for methamphetamine during her post-
dispositional improvement period. Following petitioner’s positive drug screens, her home
incarceration was revoked. Additionally, a DHHR worker testified that petitioner only
participated in one parenting and adult life skills class before she was incarcerated. Petitioner
testified and stated that she used substances in response to learning that the child was sexually
abused by another foster child while in foster care. Petitioner agreed that she needed drug
treatment and indicated her willingness to participate in treatment.

        Ultimately, the circuit court found that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected in the near future as petitioner
continued to abuse controlled substances and failed to fully participate in services to remedy the
conditions of abuse and neglect. Further, the circuit court noted that the child had been in foster
care in excess of fifteen months and that it was necessary for the welfare of the child to terminate




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petitioner’s parental rights. Accordingly, the circuit court terminated petitioner’s parental and
custodial rights in its August 3, 2018, order. Petitioner now appeals that order.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). Upon our review, this Court
finds no error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred in terminating her parental and
custodial rights rather than imposing a less-restrictive dispositional alternative. Petitioner asserts
that termination of her parental and custodial rights was not necessary for the welfare of the child
because the circuit court could have appointed a guardian pursuant to West Virginia Code § 49-
4-604(b)(5) until she was able to properly care for the child. We find no merit to petitioner’s
argument. 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 did not
follow through with the terms of her improvement period. Petitioner continued to abuse
controlled substances throughout her improvement period. Further, petitioner’s willful substance
abuse resulted in her repeated incarceration and limited her ability to participate in the services
                                                            
              2
       The father’s parental and custodial rights were also terminated during these proceedings.
According to the parties, the permanency plan for the child is adoption in his current foster
placement.



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provided by the DHHR or visit with the child. Although petitioner argues that she was compliant
with services despite her substance abuse, the record shows that there were services petitioner
did not attempt to complete, such as a drug and alcohol assessment or a psychological
examination. Moreover, the child deserved permanency after an excess of fifteen months in
foster care. Petitioner admitted that her substance abuse negatively affected her decision making
as a parent and led her to neglect the child. As petitioner had not remedied this substance abuse,
she could not provide a stable home for J.B. Therefore, termination was necessary for the welfare
of the child to provide him permanency and stability.

       We have also held as follows:

               “Termination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49-6-5 [now 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 W. Va.Code [§] 49-6-5(b) [now 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, the use of a less-restrictive dispositional alternative was not necessary. 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
August 3, 2018, order is hereby affirmed.

                                                                                          Affirmed.

ISSUED: January 14, 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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