                               STATE OF WEST VIRGINIA
                             SUPREME COURT OF APPEALS


In re A.S.                                                                           FILED
                                                                               September 13, 2019
No. 19-0198 (Logan County 18-JA-44)                                              EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA




                                 MEMORANDUM DECISION



         Petitioner Mother E.S., by counsel Susan Hill, appeals the Circuit Court of Logan County’s
January 16, 2019, order terminating her parental rights to her two-year-old son, A.S.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. Respondent C.S.-2, co-petitioner below, by
counsel Donna Pratt, filed a response. The guardian ad litem, Rebecca Ellen Mick, 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 denying her motion for an improvement period.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 2018, the DHHR filed a child abuse and neglect petition alleging that petitioner
used controlled substances with her step-daughter, C.S.-1.3 According to the DHHR, seventeen-
year-old C.S. disclosed that, while she was staying with petitioner and the father, she was
impregnated by her twenty-one-year-old boyfriend. C.S.-1 indicated that petitioner and the father
allowed her boyfriend to visit her at their home. C.S.-1 further disclosed that she smoked marijuana

       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, as a child and respondent share the same initials,
we refer to them as C.S.-1 and C.S.-2, respectively, throughout this memorandum decision.
       2
           Petitioner does not allege error regarding the termination of her parental rights.
       3
           C.S.-1 is not a subject of these abuse and neglect proceedings.
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with petitioner and her father until she confirmed that she was pregnant. Finally, C.S.-1 disclosed
that she observed petitioner and the father under the influence of controlled substances while living
at their home. The DHHR alleged that an in-home safety plan was attempted, but that petitioner
and the father refused to participate in the plan. Petitioner waived her preliminary hearing. The
circuit court ordered the parties to participate in random drug screening and supervised visitation
pending negative drug screen results. The DHHR amended its petition in June of 2018 to allege
petitioner failed to submit to drug screens as ordered by the circuit court.

        In August of 2018, the circuit court held an adjudicatory hearing. The DHHR presented
testimony consistent with the petition as amended. Additionally, the DHHR presented testimony
that petitioner participated in one drug screen in July of 2018, which was positive for
methamphetamine and Suboxone. Further, the evidence indicated petitioner was noncompliant
with other services and failed to exercise supervised visitations. Petitioner presented no evidence.
The circuit court found that A.S. was an abused child and adjudicated petitioner as an abusing
parent. Petitioner orally moved for a post-adjudicatory improvement period, which the circuit court
denied due to a lack of evidence that she would fully participate in an improvement period.
Thereafter, the DHHR filed a motion to terminate petitioner’s parental rights.

         The circuit court held a dispositional hearing in December of 2018. The DHHR presented
evidence that petitioner was inconsistently participating in drug screening, but when she did
participate, she consistently tested positive for controlled substances with only one negative result
in December of 2018. The DHHR also presented evidence that petitioner failed to seek any
substance abuse treatment until one week prior to the dispositional hearing. Petitioner did not
testify. Ultimately, the court found that petitioner failed to acknowledge the conditions of abuse
and neglect. The circuit court further found that petitioner failed to remain in contact with the
DHHR and comply with services throughout the proceedings. Accordingly, the court found that
there was no reasonable likelihood that the conditions of neglect or abuse could be substantially
corrected in the near future and that termination of petitioner’s parental rights was in the best
interests of the child. The circuit court terminated petitioner’s parental rights and memorialized its
findings in its January 16, 2019, order. Petitioner now appeals that order.4

       The Court has previously held that:

               “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


       4
         The father’s parental rights were also terminated during the proceedings below. According
to the parties, the permanency plan for the child is adoption in his current foster placement.


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       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, this Court finds
no error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred in denying her motion for a post-
adjudicatory improvement period. Petitioner asserts that she demonstrated by clear and convincing
evidence that she was likely to fully participate in an improvement period because she participated
in random drug screening, supervised visitations, and sought substance abuse treatment. Based on
our review of the record, we find no merit to petitioner’s argument.

       Petitioner fails to acknowledge that West Virginia Code § 49-4-610(2) provides that “a
court may grant a [parent] an improvement period” when the parent “files a written motion
requesting the improvement period.” Here, petitioner failed to file a motion requesting an
improvement period at any time during the proceedings.5

        Furthermore, West Virginia Code § 49-4-610(2)(B) provides that a circuit court may grant
a post-adjudicatory improvement period when the parent “demonstrates, by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period.” 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) (“It is within the court’s discretion to grant
an improvement period within the applicable statutory requirements . . . .”). In this case, petitioner
did not fully participate in the services that were provided by the DHHR. Petitioner inconsistently
complied with drug screens and did not seek treatment for her substance abuse problem until a
week before the final dispositional hearing. In fact, the record provides that the dispositional
hearing was continued from November of 2018 to provide petitioner additional time to enter into
substance abuse treatment and she failed to do so. Petitioner exerted little effort to comply with
the majority of the DHHR’s rehabilitative efforts. West Virginia Code §49-4-610 mandates that it
was petitioner’s burden to prove that she would participate in an improvement period. Yet, here,
petitioner presented no evidence to contradict testimony of her noncompliance with services.
Accordingly, we find no error in the circuit court’s denial of petitioner’s oral motion for an
improvement period due to her noncompliance.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 16, 2019, order is hereby affirmed.

                                                                                            Affirmed.


       5
        Petitioner argues that the circuit court “did not respond to [her counsel’s] request to file a
written answer and motion” during the dispositional hearing. Yet, petitioner cites no authority
requiring the circuit court to respond to such a request or permit her to file a written motion
following the circuit court’s ruling.
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ISSUED: September 13, 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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