                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: E.W.                                                                        FILED
                                                                                May 18, 2015
                                                                             RORY L. PERRY II, CLERK
No. 14-1183 (Mercer County 14-JA-22)                                       SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Mother, by counsel Gerald R. Linkous, appeals the Circuit Court of Mercer
County’s October 28, 2014, order terminating her parental rights to E.W. The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel William P. Jones, filed its
response in support of the circuit court’s order. The guardian ad litem (“guardian”), William O.
Huffman, filed a response on behalf of the child supporting the circuit court’s order. On appeal,
petitioner alleges that the circuit court erred in terminating her parental rights instead of
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 February of 2014, the DHHR filed an abuse and neglect petition alleging that the
parents abused one-year-old E.W. According to the petition, petitioner abused various drugs,
engaged in criminal activity, and did not properly provide for the child, including a failure to
properly care for the child’s needs. The abuse and neglect proceeding was initiated after
petitioner yielded positive drug screens provided pursuant to a family court proceeding involving
the same parties. Petitioner tested positive for benzodiazepines and opiates. The family court
granted temporary legal guardianship of E.W. to the child’s paternal grandmother and transferred
the matter to circuit court in January of 2014.

         In April of 2014, the circuit court held an adjudicatory hearing, during which petitioner
stipulated to neglect based upon her drug abuse. The circuit court noted that since the petition’s
filing, petitioner tested positive for drugs during multiple screens and also refused other screens.
As such, the circuit court found petitioner in contempt for her failure to comply with its drug
screening requirement. However, the circuit court granted petitioner a post-adjudicatory
improvement period that required, among other things, she complete an inpatient substance
abuse treatment program, obtain her GED and a driver’s license, and address her outstanding
medical issues.

       In October of 2014, the circuit court held a dispositional hearing, during which both the
guardian and the DHHR moved to terminate petitioner’s parental rights. During the hearing, a

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DHHR worker testified that petitioner failed to obtain housing or employment, and was not
compliant with drug screening. In fact, testimony established that petitioner attempted to falsify a
urine sample for screening. Further, petitioner missed multiple visitations with the child and
others were described as “tumultuous,” with petitioner appearing under the influence at one
visitation. According to the DHHR worker, petitioner had not made any recent efforts to comply
with the terms or conditions of the family case plan. A Mercer Day Report Center employee
testified that of petitioner’s twenty-two drug screens, only three did not test positive for drugs.
Petitioner tested positive for multiple drugs, including Valium, Ativan, cocaine, morphine,
Suboxine, Klonopin, Hydrocodone, and Oxycodone. During her testimony, petitioner admitted to
recent drug use and voluntarily missing visitations with the child. She further testified that she
failed to address her outstanding medical issues, to enroll in inpatient drug treatment, and to
obtain her GED. Ultimately, the circuit court terminated petitioner’s parental rights. Petitioner
appeals from the dispositional order.

       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, the Court finds
no error in the circuit court terminating petitioner’s parental rights. Petitioner’s sole argument on
this issue is that because the child remained in a legal guardianship established in family court,
the circuit court erred in failing to impose a dispositional alternative less restrictive than
termination of her parental rights. The Court, however, does not agree.

        The Court finds that the circuit court properly terminated petitioner’s parental rights upon
a finding that she could not substantially correct the conditions of abuse and neglect. Pursuant to
West Virginia Code § 49-6-5(b)(1), a situation in which there is no reasonable likelihood that the
conditions of abuse or neglect can be substantially corrected includes one in which

       [t]he abusing parent . . . [has] habitually abused or [is] addicted to alcohol,
       controlled substances or drugs, to the extent that proper parenting skills have been
       seriously impaired and such person . . . [has] not responded to or followed
       through the recommended and appropriate treatment which could have improved
       the capacity for adequate parental functioning.

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The circuit court specifically made this finding in regard to petitioner, based upon the evidence
above related to her non-compliance with the terms of her improvement period and her failure to
correct the conditions of abuse and neglect as evidenced by her ongoing drug abuse.

       Contrary to petitioner’s argument that a less restrictive dispositional alternative existed,
namely leaving the child in a legal guardianship with the paternal grandmother, the circuit court
had no option but to terminate petitioner’s parental rights. Pursuant to West Virginia Code § 49­
6-5(a)(6), circuit courts are directed to terminate parental rights upon findings that there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected and
when necessary for the child’s welfare. Further, we have 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 . . . 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) . . . 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). While petitioner argues that
she placed the child into the legal guardianship, the Court finds that this argument is
disingenuous. The record clearly shows the family court proceeding that resulted in the legal
guardianship was initiated upon petitioner’s attempt to regain custody of the child from the
paternal grandmother. However, due to petitioner’s positive drug screens, the family court
granted temporary legal guardianship to the grandmother and transferred the matter to the circuit
court to initiate the abuse and neglect proceedings. As such, it is clear that termination of
petitioner’s parental rights was necessary to ensure the child’s best interests of security, stability,
and permanence. Because the circuit court properly found that there was no reasonable
likelihood that petitioner could substantially correct the conditions of abuse and neglect,
termination of her parental rights was not error.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
October 28, 2014, order is hereby affirmed.

                                                                                            Affirmed.

ISSUED: May 18, 2015

CONCURRED IN BY:

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


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