                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: L.T. and C.B.
                                                                                FILED
                                                                           November 14, 2016
No. 16-0524 (Barbour County 14-JA-22 & 14-JA-23)                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Mother A.J., by counsel Thomas B. Hoxie, appeals the Circuit Court of
Barbour County’s May 6, 2016, order terminating her parental rights to thirteen-year-old L.T.
and ten-year-old C.B.1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Lee Niezgoda, filed its response in support of the circuit court’s order.
The guardian ad litem (“guardian”), Karen Hill Johnson, 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 (1) terminating her parental rights without imposing a less-restrictive dispositional
alternative; and (2) denying her post-termination visitation with the children.2

        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 2014, the DHHR filed an abuse and neglect petition against petitioner for the
abuse and neglect of L.T. and C.B. In that petition, the DHHR alleged that petitioner exposed the
children to illegal drug use and committed educational neglect by allowing them to be truant



       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).
       2
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective on May 20, 2015. In this memorandum decision, we apply the statutes as they
existed during the pendency of the proceedings below. It is important to note, however, that the
abuse and neglect statutes underwent minor stylistic revisions and the applicable changes have
no impact on the Court’s decision herein.
                                                 1


from school.3 At the adjudicatory hearing held in September of 2014, petitioner admitted to the
allegations in the petition. Petitioner further admitted at that hearing that she continued to take
Suboxone, but she argued that she had a valid prescription for that substance. Based on
petitioner’s admissions, the circuit court found her to be an abusing parent.

         Thereafter, petitioner moved for a six-month, post-adjudicatory improvement period. In
December of 2014, the circuit court held a review hearing at which time it granted petitioner’s
motion. Under the terms and conditions of her improvement period, petitioner was required to,
inter alia, complete psychological, substance abuse, and parental-fitness evaluations and comply
with the recommendations thereof; attend parenting and adult life skills classes; obtain suitable
housing and employment; submit to drug screening; wean off of Suboxone; attend all court
proceedings; and attend supervised visitation with the children.

        In June, September, and December of 2015, respectively, the circuit court held three
review hearings. At the first review hearing, despite evidence that petitioner had not fully
complied with her services, the circuit court permitted petitioner to continue under the terms of
her improvement period at that time. At the second review hearing, the circuit court granted
petitioner’s motion for a dispositional improvement period of three additional months. At the
third review hearing in December of 2015, the circuit court found that petitioner had not
progressed in her improvement period, and the matter was scheduled for final disposition.

        In February of 2016, the circuit court held the final dispositional hearing. By that time,
the guardian had filed her report recommending that petitioner’s parental rights be terminated. In
that report, the guardian noted, among other concerns, petitioner’s failure to complete the
psychological evaluation; failure to submit to drug screens as directed; failure to obtain
employment; and failure to wean off of Suboxone as directed. At the final dispositional hearing,
the circuit court heard testimony from several DHHR contractors/employees that petitioner
continued to use Suboxone; spoke negatively of L.T.’s father and his then-wife during visits with
the children; focused so extensively on the conduct of L.T.’s father that she could not complete
lessons in her parenting and adult life skills classes; and was substantially non-compliant with
drug screening. The circuit court also heard evidence that petitioner shared a noticeable bond
with the children.

        At the conclusion of the hearing, the circuit court found that petitioner failed to correct
the conditions of abuse and neglect during her lengthy improvement period. The circuit court
further found that, while petitioner had a bond with her children, it was not in the children’s best
interests to have unsupervised visits and that petitioner had no further right to visit with the
children. However, the circuit court directed the multidisciplinary team (“MDT”) to decide
whether the children had the right to supervised, post-termination visitation and should be given



       3
         An amended petition was later filed regarding petitioner’s third child, eleven-year-old
S.P. During the course of the underlying proceedings, petitioner voluntarily relinquished her
parental rights to S.P., and petitioner raises no assignments of error regarding that
relinquishment. Therefore, this memorandum decision relates only to petitioner’s involuntary
termination of parental rights to L.T. and C.B.
                                                 2


the same.4 In a detailed, sixty-seven page order entered on May 6, 2016, the circuit court
terminated petitioner’s parental rights to the children. 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
       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). Further, our case law is clear that
“in the context of abuse and neglect proceedings, the circuit court is the entity charged with
weighing the credibility of witnesses and rendering findings of fact.” In re Emily, 208 W.Va.
325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478,
525 S.E.2d 669 (1999)); see also Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d
531, 538 (1997) (stating that “[a] reviewing court cannot assess witness credibility through a
record. The trier of fact is uniquely situated to make such determinations and this Court is not in
a position to, and will not, second guess such determinations.”).
        On appeal, petitioner first argues that the circuit court erred in terminating her parental
rights without imposing a less-restrictive dispositional alternative. West Virginia Code § 49-4­
604(a)(6) provides that circuit courts are directed to terminate parental rights upon finding 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. 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[.]” We have also held that “[t]ermination . . . 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.” Syl. Pt. 7, in part, In re Katie
S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

       In this case, petitioner argues that two less-restrictive dispositional alternatives to
termination of her parental rights existed at the time of disposition: (1) termination of her
custodial rights to the children and not her parental rights, due to her bond with the children; or

       4
         The record on appeal does not reveal what, if anything, the MDT decided regarding
petitioner’s post-termination visitation.
                                                  3


(2) guardianship in the children’s caregivers, which would negate the need to terminate any of
petitioner’s rights to the children. Based on our review, we find that the evidence required
termination of petitioner’s parental rights as the least-restrictive dispositional alternative.

        The record reveals that petitioner was granted two improvement periods and spent more
than one year in DHHR’s services during these proceedings. In that time, she failed to
substantially correct the underlying conditions of abuse and neglect and failed to improve her
parenting such that she could reunify with her children. During the same time period, her
children had to be cared for by others and had to live with the constant uncertainty that they may
or may not be returned to petitioner’s care, custody, and control. Based on those facts, it is clear
that there was no reasonable likelihood that petitioner could have substantially corrected the
conditions of neglect or abuse in the near future and, at the time of the final dispositional
hearing, the children’s best interests were served by achieving permanent placement. Because
courts are directed to terminate parental rights based upon those two findings, we find no error in
the circuit court’s termination of petitioner’s parental rights without imposing a less-restrictive
dispositional alternative.

         Petitioner’s second assignment of error is that the circuit court erred in denying her post-
termination visitation with the children. Post-termination visitation is a discretionary action and
not compulsory upon the circuit court. We have previously held that, in deciding whether post-
termination visitation is appropriate, a circuit court should consider three factors: (1) whether
there is a close emotional bond between parent and children; (2) the children’s wishes, if the
children are of the appropriate maturity to make such a request; and (3) whether continued
visitation would be detrimental to the children’s best interests. Syl. Pt. 5, In re Christina L., 194
W.Va. 446, 460 S.E.2d 692 (1995); Syl., In re Alyssa W., 217 W.Va. 707, 708, 619 S.E.2d 220,
221 (2005). Petitioner argues that she was entitled to post-termination visitation because she
shared a bond with her children. While there is limited evidence in the record on appeal as to
whether petitioner shared a close, emotional bond with her children, the circuit court found that a
bond existed between them. However, the analysis of this issue does not end with the finding that
there is a bond between parent and children. Here, in addition to evidence of such a bond, the
circuit court also heard significant evidence of petitioner’s history of drug use; her repeated
failures during her two improvement periods, including her failure to comply with drug
screening as directed; and her negative remarks about L.T.’s father and his then-wife during
visits with the children. Under the circumstances of this case, we find no abuse of discretion in
the circuit court’s ruling that petitioner had no right to post-termination visitation with the
children. As such, petitioner’s second assignment of error is without merit.

       For the foregoing reasons, we hereby affirm the circuit court’s May 6, 2016, order.

                                                                                          Affirmed.


ISSUED: November 14, 2016




                                                 4


CONCURRED IN BY:

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




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