                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

In re A.L.                                                                        FILED
                                                                               April 19, 2019
No. 18-1052 (Kanawha County 18-JA-72)                                        EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA




                              MEMORANDUM DECISION



         Petitioner Mother J.L., by counsel Sandra K. Bullman, appeals the Circuit Court of
Kanawha County’s October 23, 2018, order terminating her parental rights to A.L.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”), Bryan B. Escue, 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 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 2018, the DHHR filed a petition alleging that petitioner physically abused
newborn A.L.’s father and that she suffered from untreated mental health issues, including
schizophrenia. According to the DHHR, petitioner and the father arrived in Charleston, West
Virginia, by bus and she immediately went into labor. The DHHR alleged that the family was
transient with no known address. Petitioner was found to be “somewhat” verbally aggressive and
spoke to people in the room “who were not physically there.” Finally, the DHHR alleged that
petitioner’s parental rights to her older children were terminated in Georgia.


       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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        Later in February of 2018, the circuit court held a preliminary hearing. The DHHR
presented testimony consistent with the allegations in the petition. The father testified and
confirmed that petitioner spoke to individuals who were not physically present and that she
assaulted him twice during their relationship. Petitioner did not testify. The circuit court found
that the child was in imminent danger at the time of the removal.

        The circuit court held an adjudicatory hearing in April of 2018. The circuit court
incorporated the evidence presented at the preliminary hearing and heard testimony from
petitioner. The circuit court found that petitioner exposed the child to domestic violence and that,
due to being homeless and transient, she had very sporadic prenatal care. Accordingly, the circuit
court adjudicated petitioner as an abusing parent.

        In July of 2018, the circuit court held the final dispositional hearing and petitioner did not
appear, but was represented by counsel. The DHHR moved to terminate petitioner’s parental
rights and presented evidence that petitioner failed to participate in services provided to her.
Petitioner’s counsel argued that petitioner moved to Florida to be closer to the child, who was
placed with her aunt, and desired that the proceedings and services be transferred to Florida.

        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
“made no effort to rectify the circumstances that led to the filing of [the] [p]etition” and failed to
follow through with a reasonable family case plan to prevent or reduce the abuse and neglect of
the child. Further, the circuit court found that the child’s best interests required the termination of
petitioner’s parental rights. Accordingly, the circuit court terminated petitioner’s parental rights
by its October 23, 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).


       The father’s parental rights were also terminated. According to the parties, the
       2

permanency plan for the child is adoption in her current relative foster placement.



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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 rights
instead of imposing a less-restrictive dispositional alternative. Petitioner asserts that she moved
to Florida in order to help take care of the child and that the circuit court should have imposed a
temporary guardianship until she could care for the child. We find no merit to petitioner’s
argument.

       We have held as follows:

               “Termination 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
       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). 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 record supports the circuit court’s findings that there was no reasonable likelihood
that the conditions of abuse or neglect could be substantially corrected in the near future and that
termination was necessary for the child’s welfare. The evidence showed that petitioner did not
follow through with a reasonable family case plan as she failed to participate in any services.
Petitioner also did not present any evidence that she attempted to remedy the conditions on her
own. Ultimately, the circumstances that caused the abuse or neglect were essentially untreated.
The child would be at risk of continued abuse or neglect if returned to petitioner’s custody and,
therefore, termination was necessary for the welfare of the child.

        Although petitioner asserts that she returned to Florida in order to help care for the child,
the record shows that petitioner continually called the DHHR to ask where the child was and
expressed confusion over the child’s placement. Petitioner’s inability to show any substantial
change during the course of these proceedings further supports the circuit court’s findings. The
circuit court’s conclusion that there was no reasonable likelihood that the conditions of neglect or
abuse could be substantially corrected in the near future and its conclusion that termination was
necessary for the welfare of the child are not clearly erroneous in light of the record provided.



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Therefore, we find the circuit court did not err in terminating petitioner’s parental rights instead
of imposing a less-restrictive dispositional alternative.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 23, 2018, order is hereby affirmed.

                                                                                         Affirmed.

ISSUED: April 19, 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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