                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


In re H.W.-1 and H.W.-2                                                              FILED
                                                                                   May 14, 2018
No. 17-1136 (Webster County 17-JA-55 and 56)                                     EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 


                                                          MEMORANDUM DECISION
        Petitioner Mother, F.W., by counsel Christopher G. Moffatt, appeals the Circuit Court of
Webster County’s October 5, 2017, order terminating her parental rights to H.W.-1 and H.W.-2.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy
M. Parsley, filed a response in support of the circuit court’s order and a supplemental appendix.
The guardian ad litem (“guardian”), Howard J. Blyler, 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 based upon insufficient evidence and without granting her
an improvement period.

        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 2017, the DHHR filed an abuse and neglect petition against petitioner.
According to the DHHR, petitioner gave birth to H.W.-1, who exhibited symptoms of
withdrawal from controlled substances. Petitioner tested positive for oxycodone and opiates at
the time of H.W.-1’s birth and tested positive for OxyContin two days after the birth. The DHHR
alleged that petitioner’s mother lived in the home and smoked cigarettes while using oxygen.
Petitioner and her boyfriend also smoked cigarettes inside the home, leaving an “overwhelming
odor of cigarette smoke.” The home was noted to be extremely cluttered with boxes and trash
stacked throughout the home, including in H.W.-2’s bed. Finally, four-year-old H.W.-2’s teeth
were black and deteriorated, and it was reported that she had never been to a dentist.

                                                            
              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, because two of the children share the same
initials, we will refer to them as H.W.-1 and H.W.-2, respectively, throughout this memorandum
decision.


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        The circuit court held an adjudicatory hearing in July of 2017, during which it found that
petitioner threatened the health and safety of the children, failed to provide a safe and suitable
home, and failed to provide adequate care for the children based on the condition of H.W.-2’s
teeth. Accordingly, the circuit court adjudicated petitioner as an abusing parent.

        In September of 2017, the circuit court held a dispositional hearing. Petitioner failed to
attend but was represented by counsel. A Child Protective Services (“CPS”) worker testified that
petitioner tested positive for amphetamines, hydromorphone, methamphetamines, and
oxymorphone in August of 2017. Subsequently, petitioner failed to participate in random drug
screens on seven occasions throughout August of 2017 and September of 2017. The CPS worker
also testified that petitioner missed a counseling session. After hearing evidence, the circuit court
found that, while petitioner had been compliant with some services, she missed several drug and
alcohol screens, failed to appear for the hearing, and had not presented any evidence that she
would comply with the terms of an improvement period. Finding that there was no reasonable
likelihood that petitioner could correct the conditions of abuse and neglect and that termination
was necessary for the children’s welfare, the circuit court terminated petitioner’s parental rights
in its October 5, 2017, dispositional order. It is from this order 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 argues that the circuit court erred in terminating her parental rights
when she participated in parenting classes, attended outpatient drug counseling, and substantially
complied with her random drug screening, only missing screens “when she was not at the
location the [DHHR] workers dropped in on when the [DHHR] workers appeared without
notice.” As such, petitioner argues the circuit court erred in terminating her parental rights
without first granting her an improvement period, as she alleges she demonstrated that she was
likely to participate in the same. Petitioner also argues that the circuit court erred in terminating

                                                            
              2
        The parents’ parental rights were terminated below. The permanency plan for the
children is to be adopted by their current foster family.
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her parental rights based upon insufficient evidence when the DHHR only presented the
testimony of one witness, who recommended that petitioner be granted an improvement period.
We find petitioner’s argument to be without merit.

        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) (“[i]t is within
the court’s discretion to grant an improvement period within the applicable statutory
requirements”). We have also held that a parent’s “entitlement to an improvement period is
conditioned upon the ability of the [parent] to demonstrate ‘by clear and convincing evidence,
that the [parent] is likely to fully participate in the improvement period . . . .’” In re: Charity H.,
215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004). Here, the evidence established that petitioner
tested positive for several controlled substances in August of 2017 and thereafter failed to
participate in random drug screens on seven different occasions. While petitioner argues that her
missed drug screens were due to DHHR workers arriving at her home unannounced, we note that
random drug screens are purposefully not regularly scheduled and petitioner was aware that a
missed screen would count as a positive screen in the eyes of the circuit court. Further, petitioner
also missed a counseling session and failed to attend the dispositional hearing. Accordingly,
because petitioner did not demonstrate that she was likely to fully participate in an improvement
period, we find no error in the circuit court’s decision to deny petitioner the same.

        Moreover, we find no error in the circuit court’s decision to terminate petitioner’s
parental rights. 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 no reasonable likelihood the conditions of abuse and neglect can be substantially
corrected includes one in which

       [t]he abusing parent or parents have 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[.]

        Here, petitioner did not follow through with rehabilitative efforts designed to reduce or
prevent the abuse and neglect of the children. As mentioned above, petitioner tested positive for
drugs throughout the proceedings, missed several drug screens and a counseling session, and
failed to attend her dispositional hearing. While petitioner argues that she complied with most
services, we have previously held that “[i]n making the final disposition in a child abuse and
neglect proceeding, the level of a parent’s compliance with the terms and conditions of an
improvement period is just one factor to be considered. The controlling standard that governs
any dispositional decision remains the best interests of the child.” Syl. Pt. 4, In re B.H., 233
W.Va. 57, 754 S.E.2d 743 (2014). After reviewing the evidence, the circuit court found that there


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was no reasonable likelihood that the conditions of abuse and neglect could be corrected and that
termination was in the children’s best interests. Further, while petitioner argues that less-
restrictive alternatives to termination were available, we have previously held

               “[t]ermination 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). Based on the evidence, 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
October 5, 2017, order is hereby affirmed.


                                                                                       Affirmed.

ISSUED: May 14, 2018


CONCURRED IN BY:

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




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