                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

In re M.K. and G.C.                                                                FILED
                                                                             September 13, 2019
No. 19-0323 (Harrison County 18-JA-43-3 and 18-JA-44-3)                         EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION



        Petitioner Mother M.W., by counsel Jenna L. Robey, appeals the Circuit Court of Harrison
County’s March 8, 2019, order terminating her parental and custodial rights to M.K. and G.C.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, Allison
S. McClure, filed a response on behalf of the children in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in denying her request for a post-dispositional
improvement period and in 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 May of 2018, the DHHR filed an abuse and neglect petition that alleged that in August
of 2017, petitioner, then three or four months pregnant with G.C., was selling and, in the presence
of M.K., abusing drugs. The petition further alleged that petitioner “bounces back and forth[]
between her mother’s and father’s home[s],” and that petitioner’s mother’s home was really just
“an out building with no modern conveniences.” The petition contained an additional allegation
that, in April of 2018, petitioner gave birth to G.C. and tested positive for Subutex and
benzodiazepines upon admission to the hospital. According to the DHHR, petitioner “reported an
extensive substance use/abuse history” that included “using heroin, methadone, and
purchasing/using Subutex off the street.” Further, petitioner provided two valid prescriptions for


       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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Subutex and Xanax, but, despite the fact that the prescriptions were for ninety pills and had been
filled three weeks prior, petitioner had no more pills remaining. The petition went on to allege that,
on May 18, 2018, law enforcement contacted the DHHR and informed them that they detained
petitioner and the father in a parking lot due to possession of drug paraphernalia. The children
were in the parents’ car at the time. When Child Protective Services (“CPS”) arrived, law
enforcement had removed “six . . . needles, lighters, a knife, and a tourniquet” from the vehicle.
According to the police, the tourniquet was found in the infant’s diaper bag. Law enforcement also
found a prescription bottle for buprenorphine, which petitioner was prescribed, but the bottle
additionally contained Xanax and alprazolam. According to the CPS worker, C.G. had two
cigarette burns on his head, sores and redness in his diaper area, and “stool . . . crusted to his skin.”
Because the child’s diaper was “soiled and full of urine,” the child’s clothes had to be thrown
away. As a result of this incident, petitioner was arrested for child neglect creating risk of injury.2
Based on these conditions, the DHHR alleged that petitioner abused and neglected the children.

        In July of 2018, petitioner stipulated to abusing and neglecting the children due to her
history of substance abuse and “subject[ing] the children to a drug endangered environment due
to her addiction” and association with the father. In the adjudicatory order, the circuit court
indicated that petitioner agreed to several terms and conditions, including the following: a
psychological evaluation; a drug and alcohol assessment; counseling, as recommended by the
evaluations; random drug screens; individual therapy; parenting classes; and obtaining and
maintaining employment and a suitable residence. Thereafter, the circuit court granted petitioner
a post-adjudicatory improvement period.

         In December of 2018, the circuit court held a hearing on the DHHR’s motion to revoke
petitioner’s improvement period. According to the order granting the motion, petitioner missed
four drug screens during her improvement period and only submitted to one screen. That lone
screen was positive for amphetamine and methamphetamine, in addition to the fact that the “urine
sample was also dilute[d].” Further, the circuit court previously ordered, as a result of her
noncompliance, that petitioner “drug screen every business day” beginning on October 4, 2018.
Subsequent to this order, petitioner was incarcerated on December 1, 2018.3 Between October 4,
2018, and December 1, 2018, petitioner only reported for five drug screens, all of which were
positive for a variety of drugs, including amphetamine, methamphetamine, buprenorphine,
lorazepam, and oxazepam. According to the circuit court, petitioner did not have a valid
prescription for any of the substances for which she tested positive. The circuit court further found
that petitioner was minimally compliant with her other services, having missed several supervised
visits with the children and other scheduled educational classes. Further, petitioner’s service
provider indicated that petitioner had no contact with her after October 17, 2018. The provider also
stated that, based upon the services she participated in, petitioner “did not progress well . . . because
of a negative and hostile disposition and inability to take responsibility for the actions that led to
the filing of the case.” In addition, the service provider testified that petitioner did not acknowledge


        2
        The petition also alleges that petitioner was charged with transferring/receiving stolen
property, but does not provide a factual basis for this charge.
        3
        Due to her failure to appear for a hearing in her related criminal matter, a capias warrant
was issued for petitioner and she was incarcerated on this date.
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her substance abuse problem and denied using methamphetamine, despite her positive drug screen
results. The circuit court also found that petitioner told another DHHR employee that she “was a
good mom” and “had done nothing wrong.” Due to petitioner’s noncompliance, her services were
terminated. Evidence further indicated that petitioner never appeared for her scheduled
psychological evaluation or drug and alcohol assessment. Based on this evidence, the circuit court
terminated petitioner’s improvement period and set the matter for disposition.

        In February of 2019, the circuit court held a dispositional hearing, prior to which petitioner
filed a motion for a post-dispositional improvement period. According to the circuit court’s order,
after petitioner was placed on home incarceration on December 6, 2018, she “cut off her bracelet
after approximately twenty . . . days” and “went and got high.” On January 3, 2019, petitioner
tested positive for amphetamine, methamphetamine, and morphine, among other drugs, before she
was again incarcerated the following day. After her release on January 11, 2019, petitioner
attended a short-term detoxification program but missed seven drug screens. She then enrolled in
an outpatient treatment program, although she failed to attend meetings to help with her substance
abuse as recommended. Petitioner additionally admitted to using methamphetamine shortly before
her enrollment in the outpatient program and admitted to using benzodiazepines during the
program. The circuit court also found that petitioner’s drug screen taken on the day of the
dispositional hearing “was positive . . . for benzodiazepines and buprenorphine” and also included
“a faint line for amphetamine and methamphetamine.” According to petitioner, she attempted to
enroll in long-term rehabilitation, but the circuit court found that she failed to provide any proof
of these attempts.

        Further evidence established that petitioner still had not submitted to either her
psychological evaluation or her drug and alcohol assessment, and that the DHHR was “not sure if
[she] ha[d] a residence.” The circuit court also found that petitioner continued to deny
responsibility for the conditions of abuse and neglect, as evidenced by her testimony that there
were “apparently” needles in the car on the night of her arrest, when, “[i]n actuality[,] there were
needles, tourniquets, and a cap with residue.” Because petitioner “repeatedly failed to follow
through with services and treatment,” in addition to the fact that she tested positive on a drug
screen on the day of the hearing, the circuit court found that there was no reasonable likelihood
petitioner could substantially remedy the conditions of abuse and neglect and that termination of
her parental and custodial rights was necessary for the children’s welfare. Accordingly, the circuit
court denied petitioner’s request for a post-dispositional improvement period and terminated her
parental and custodial rights.4 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


       4
         G.C.’s father’s parental rights were also terminated below, while M.K.’s father is
deceased. According to respondents, the permanency plan is for the children to be adopted in their
current foster home.
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       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, we find no error in the
proceedings below.

        First, petitioner argues that she was entitled to a post-dispositional improvement period
because she enrolled in outpatient substance abuse treatment. According to petitioner, her
acknowledgement of her substance abuse problem and her submission to treatment constituted a
change in circumstances such that she was likely to comply with a post-dispositional improvement
period. We do not agree.

         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 . .
. .”). Here, petitioner did not meet the statutory requirements to be granted a post-dispositional
improvement period. West Virginia Code § 49-4-610(3)(D) provides that a circuit court may only
grant an additional improvement period following the expiration of the initial unsuccessful period
if “the [parent] has experienced a substantial change in circumstances. Further, the [parent] shall
demonstrate that due to that change in circumstances, the [parent] is likely to fully participate in
the improvement period.” While it is true that petitioner enrolled in a substance abuse treatment
program, the record shows that this does not constitute a substantial change in circumstances,
especially given petitioner’s continued substance abuse. As noted above, petitioner admitted that
she used methamphetamine one or two days prior to enrolling in the program and continued to
abuse substances during her participation in that program. Moreover, petitioner’s drug screen taken
on the day of the dispositional hearing was positive for several substances. As such, petitioner
failed to establish a substantial change in circumstances.

        Further, petitioner failed to establish that she was likely to fully participate in a post-
dispositional improvement period. See In re: Charity H., 215 W. Va. 208, 215, 599 S.E.2d 631,
638 (2004) (A parent’s “entitlement to an improvement period is conditioned upon the ability of
the parent/respondent to demonstrate ‘by clear and convincing evidence, that the respondent is
likely to fully participate in the improvement period’”). Petitioner had approximately six months
to enroll in substance abuse treatment, yet waited until the week of the dispositional hearing to
enroll in an outpatient program. Moreover, substance abuse treatment was only one of several
terms and conditions imposed as part of her post-adjudicatory improvement period, and the record
shows that petitioner failed to comply with most, if not all, of those terms and conditions. As noted
above, petitioner failed to submit to either a psychological evaluation or a drug and alcohol

                                                  4
assessment, despite both of those being scheduled for her on multiple occasions. Further,
petitioner’s extended noncompliance with her services resulted in the provider terminating them.
Additionally, the record also shows that, at the time of the dispositional hearing, petitioner was
unemployed and had not obtained suitable housing for the children. Given petitioner’s overall
failure to comply with her post-adjudicatory improvement period, it is clear that petitioner’s late
enrollment in substance abuse treatment was insufficient to establish that she was likely to fully
participate in a post-dispositional improvement period.

        Finally, petitioner argues that the circuit court erred in terminating her parental and
custodial rights, as opposed to imposing a less-restrictive dispositional alternative. Specifically,
petitioner calls into question the appropriateness of the circuit court’s findings that there was no
reasonable likelihood the conditions of abuse and neglect could be substantially corrected and that
termination was necessary for the children’s welfare. Upon our review, however, we find that these
findings were based on substantial evidence and were not in error.

        Many of the same facts the circuit court relied upon in denying petitioner’s motion for a
post-dispositional improvement period also support the findings at issue in this assignment of
error. Specifically, petitioner’s failure to fully comply with the terms and conditions of her post-
adjudicatory improvement period show that there was no reasonable likelihood she could
substantially correct the conditions of abuse and neglect. Pursuant to West Virginia Code § 49-4-
604(c)(3), “no reasonable likelihood that conditions of neglect or abuse can be substantially
corrected” exists when 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.

        As set forth above, petitioner failed to comply with the terms and conditions of her post-
adjudicatory improvement period such that services were terminated. Aside from her enrollment
in outpatient substance abuse treatment, during which she continued to test positive for drugs,
petitioner’s compliance remained unchanged from the termination of her post-adjudicatory
improvement through disposition. Simply put, petitioner failed to follow through with the
rehabilitative efforts designed to remedy the abuse and neglect issues that necessitated the
petition’s filing. In addition, the circuit court also found that petitioner’s ongoing substance abuse
and inability to properly parent the child necessitated the termination of her parental and custodial
rights, especially in light of the fact that “the children are children of tender years.” According to
West Virginia Code § 49-4-604(b)(6), circuit courts may terminate parental rights upon these
findings. Moreover, this Court has previously held 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

                                                  5
       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). Accordingly, we find no error
in the termination of petitioner’s parental and custodial rights.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its March
8, 2019, order is hereby affirmed.


                                                                                           Affirmed.

ISSUED: September 13, 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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