                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                      FILED
In re D.E.
                                                                                 February 23, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 17-0784 (Kanawha County 16-JA-618)                                           SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Mother B.W., by counsel Sandra K. Bullman, appeals the Circuit Court of
Kanawha County’s August 1, 2017, order terminating her parental rights to D.E.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Matthew
Smith, 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 adjudicating her as an abusing parent and
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 December of 2016, the DHHR filed an abuse and neglect petition alleging petitioner
abused and neglected the child. The petition alleged that the then six month old child remained
unbathed for an extended period of time; that the child’s clothes were moldy; that it was apparent
petitioner had been smoking marijuana because the odor could be smelled on the child; that
petitioner hit her boyfriend in the face and then her boyfriend hit her while she was holding the
child; and that petitioner was unemployed and had a history of drug use. According to the
DHHR, petitioner’s aunt and brother observed sores on her arms and legs, allegedly from
bedbugs and “shooting up.” The DHHR also alleged that petitioner had a history of bipolar
disorder and cystic fibrosis. Petitioner waived her preliminary hearing. According to the record,
petitioner tested positive for marijuana and methamphetamines and missed several drug screens
in January of 2017. The circuit court was concerned by the possibility that the child may also
have cystic fibrosis, especially due to petitioner’s smoking habits.

                                                            
              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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        In March of 2017, the circuit court held an adjudicatory hearing. Petitioner denied that
she used drugs, but admitted that she smoked marijuana outside of her house. When asked about
her recent positive drug screen for methamphetamine, she testified that she does not use
methamphetamines, and that someone must have “laced her blunt.” Petitioner further testified
that since the filing of the petition, she was homeless and unemployed. Petitioner stated that she
was not aware that visitation with her child had been suspended due to her failure to comply with
drug screens as ordered by the circuit court. The DHHR presented testimony that when a Child
Protective Services (“CPS”) worker visited petitioner’s home prior to filing the petition, she
noticed an “overwhelming smell of marijuana.” Petitioner’s relatives informed the CPS worker
of petitioner’s drug habits and history of domestic violence as well as separate incidents when
petitioner became aggressive with the child by jerking him out of a chair and shaking him
violently in a stroller. The relatives also informed the CPS worker that they had seen bruises on
petitioner’s face on multiple occasions. The circuit court found that petitioner did not have a
home for the child, that petitioner had not worked for three months, and that she failed to make
efforts to comply with services. The circuit court was also concerned for the child’s health. The
circuit court adjudicated petitioner as an abusing parent and ordered that she participate in
services and have the child tested for cystic fibrosis.

        In May of 2017, the circuit court held a dispositional hearing. Petitioner was not present
for the beginning of the hearing, but was represented by counsel. The DHHR presented
testimony that petitioner had not complied with any services and recommended termination of
her parental rights. Petitioner arrived late to the hearing, testified on her own behalf, and
requested that the disposition be held in abeyance or, alternatively, that she receive a post-
dispositional improvement period. Petitioner testified that she had been complying with services
for approximately two weeks prior to the dispositional hearing. She further testified that she did
not have a home and was not employed, other than doing odd jobs for her ex-boyfriend. The
circuit court found that petitioner’s substance abuse issues prevented her from being an
appropriate parent, she was unemployed and unable to provide for the child, was homeless and
could not provide a safe and stable home for the child, and failed to comply with services until
two weeks prior to the dispositional hearing. The circuit court was particularly concerned that
petitioner continued to associate with her ex-boyfriend who physically abused her. The circuit
court found no reasonable likelihood that the conditions of abuse and neglect could be corrected
in the near future and that termination was in the child’s best interests. Ultimately, the circuit
court terminated petitioner’s parental rights in its August 1, 2017, order.2 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
                                                            
              2
        In addition to the termination of petitioner’s parental rights, the abuse and neglect
proceedings involving the father are still pending. According to the guardian and the DHHR,
both are recommending termination of the father’s parental rights and the child is currently
placed with a family member with a permanency plan of adoption in that home.

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       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 proceedings below.

        First, petitioner argues that the circuit court erred in adjudicating her as an abusing
parent. She argues that there was no clear and convincing evidence that the child was abused at
the time of the filing of the petition. We have described the “clear and convincing” standard as
follows:

       the evidence in an abuse and neglect case does not have to satisfy the stringent
       standard of beyond a reasonable doubt; the evidence must establish abuse by clear
       and convincing evidence. This Court has explained that “‘clear and convincing’ is
       the measure or degree of proof that will produce in the mind of the factfinder a
       firm belief or conviction as to the allegations sought to be established.” Brown v.
       Gobble, 196 W.Va. 559, 564, 474 S.E.2d 489, 494 (1996).

In re F.S. and Z.S., 233 W.Va. 538, 546, 759 S.E.2d 769, 777 (2014). Further, we have held 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.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497
S.E.2d 531, 538 (1997). Here, the petition alleged that there was an apparent odor of marijuana
on the child. At the adjudicatory hearing, petitioner admitted to using marijuana, and although
she denied using methamphetamines, her drug screens were positive for such. The circuit court
also considered a CPS worker’s testimony regarding petitioner’s history of domestic violence
with her ex-boyfriend and instances of petitioner’s aggression towards the child. Based upon this
evidence, we find the circuit court did not err in adjudicating petitioner as an abusing parent.

        Petitioner also argues that the circuit court erred in terminating her parental rights when a
less-restrictive alternative was available. 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. 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[.]”



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        Petitioner has a history of drug abuse, admitted to her marijuana use at the adjudicatory
hearing, and had positive drug screens throughout the proceedings. Petitioner was offered
services, which she failed to comply with until two weeks before the dispositional hearing. The
circuit court found that petitioner’s drug use prevented her from being an appropriate parent and
that she was unable to provide a stable and safe home for the child due to her unemployment and
homelessness. The circuit court was also concerned by petitioner’s continued contact with a
physically abusive ex-boyfriend. Based on this evidence, the circuit court found no reasonable
likelihood that petitioner could substantially correct the conditions of abuse and neglect in the
near future and that the best interests of the child required termination of petitioner’s parental
rights. As previously stated, pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are
to terminate parental rights upon these findings. Further, we have previously held that

               “[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). Accordingly, we find no error
in the circuit court’s termination of petitioner’s parental rights.

        Lastly, this Court reminds the circuit court of its duty to establish permanency for the
child. Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires:

       At least once every three months until permanent placement is achieved as defined
       in Rule 6, the court shall conduct a permanent placement review conference,
       requiring the multidisciplinary treatment team to attend and report as to progress
       and development in the case, for the purpose of reviewing the progress in the
       permanent placement of the child.

       Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child
within twelve months of the date of the disposition order. As this Court has stated,

               [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
       placement of an abused and neglected child following the final dispositional order
       must be strictly followed except in the most extraordinary circumstances which
       are fully substantiated in the record.

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that

              [i]n determining the appropriate permanent out-of-home placement of a
       child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4-


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       604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
       home for the child and shall consider other placement alternatives, including
       permanent foster care, only where the court finds that adoption would not provide
       custody, care, commitment, nurturing and discipline consistent with the child’s
       best interests or where a suitable adoptive home can not be found.

Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 1, 2017, order is hereby affirmed.


                                                                                     Affirmed.

ISSUED: February 23, 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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