                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                     FILED
In re I.A. and S.P.
                                                                                  June 12, 2019
                                                                                EDYTHE NASH GAISER, CLERK
No. 19-0152 (Harrison County 18-JA-61-1 and 18-JA-62-1)                         SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION



       Petitioner Mother C.A., by counsel Julie N. Garvin, appeals the Circuit Court of Harrison
County’s January 3, 2019, order terminating her parental rights to I.A. and S.P.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. The guardian ad litem, Allison S. McClure, filed a
response on behalf of the children in support of the circuit court’s order. On appeal, petitioner
argues that the circuit court erred in denying her motion for a post-adjudicatory improvement
period 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 June of 2018, the DHHR filed a petition that alleged the father, who was on parole,
tested positive for methamphetamine, Suboxone, and marijuana. The petition further alleged that
marijuana and drug paraphernalia, including syringes, were found in the father’s home. As a result,
the father was arrested for violating the terms of his parole. In regard to petitioner, the petition
alleged that she could not assume custody of the children because she was incarcerated at the time
the petition was filed. Further, the DHHR alleged that the children were unbathed and suffered
from head lice, and that infant S.P. had an untreated fever. Based on these facts, the DHHR alleged
that petitioner subjected the children to unsafe conditions and suffered from substance abuse issues



       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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that negatively impacted her parenting abilities. Petitioner thereafter waived her preliminary
hearing.

        In September of 2018, petitioner, who by this point had been released from incarceration,
stipulated to her inability to protect the children and subjecting them to unsafe conditions.
Petitioner further stipulated to a history of substance abuse and neglecting the children due to her
poor decision making. As part of her stipulation, petitioner agreed to undergo rehabilitation for her
substance abuse and acknowledged that services would be necessary to resolve other issues. In
October of 2018, petitioner filed a motion for a post-adjudicatory improvement period. The circuit
court scheduled a hearing to address both the motion and disposition that same month. Petitioner
failed to appear, although she was represented by counsel. During the hearing, the circuit court
ordered that, in order to exercise supervised visitation with the children, petitioner was required to
comply with drug screens as directed.

        In December of 2018, the circuit court reconvened the hearing. Petitioner was again absent,
although she was represented by counsel. The DHHR presented evidence of petitioner’s
noncompliance with services, which resulted in those services being closed one month prior to the
hearing. Evidence further established that petitioner, who submitted to only two screens, tested
positive for multiple substances, including amphetamine, methamphetamine, and morphine.
Further, petitioner missed twenty-one scheduled screens between September and December of
2018. Due to her failure to consistently undergo drug screens, petitioner had only one visit with
the children. Further, although the DHHR scheduled a psychological evaluation for petitioner and
secured her transportation, petitioner failed to appear for her appointment. Based on this evidence,
the circuit court found that there was no reasonable likelihood petitioner could substantially correct
the conditions of abuse and neglect because of her failure to follow through with services.
Moreover, due to the children’s young ages and petitioner’s inability to correct the conditions of
abuse and neglect, the circuit court found that termination of petitioner’s parental rights was in the
children’s best interests. As such, the circuit court denied petitioner’s motion for an improvement
period and terminated her parental rights to the children. It is from the dispositional order that
petitioner 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


       All parents’ parental rights were terminated below. According to respondents, the
       2

permanency plan is adoption in the current foster home.
                                                  2
       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, we find no error in the
proceedings below.

       Petitioner first argues that the circuit court erred in denying her motion for a post-
adjudicatory improvement period. According to petitioner, in both her stipulation at adjudication
and her motion for an improvement period, she acknowledged the need for services to assist her
in remedying the underlying conditions necessitating the petition’s filing. Further, petitioner
argues that her motion asserted that she would comply with the terms and conditions of an
improvement period. This argument is not compelling, however, given that the totality of the
evidence below shows that petitioner failed to satisfy the burden necessary to obtain an
improvement period due to her overwhelming noncompliance with services.

        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 . .
. .”). We have also held that a parent’s “entitlement to an improvement period is conditioned upon
the ability of the parent/respondent to demonstrate ‘by clear and convincing evidence, that the
respondent 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).

        While petitioner cites to her acknowledgement that services were necessary and her express
desire to participate in these services, petitioner fails to recognize that the circuit court found that
her overwhelming noncompliance throughout the proceedings established that she was unlikely to
fully participate in an improvement period. According to the record, petitioner’s services were
terminated because of her failure to comply. The record further shows that, because of her failure
to comply with drug screens, petitioner saw the children only once during the proceedings. “We
have previously pointed out that the level of interest demonstrated by a parent in visiting his or her
children while they are out of the parent’s custody is a significant factor in determining the parent’s
potential to improve sufficiently and achieve minimum standards to parent the child.” Katie S.,
198 W. Va. at 90 n.14, 479 S.E.2d at 600 n.14 (citations omitted). As such, it is clear that the circuit
court did not err in denying petitioner’s motion for a post-adjudicatory improvement period.

        Finally, we find no error in the termination of petitioner’s parental rights. According to
petitioner, a less-restrictive disposition under West Virginia Code § 49-4-604(b)(5) was
appropriate because such disposition “provides the same protection to the children as termination.”
We do not agree. Pursuant to West Virginia Code § 49-4-604(b)(5),

       [u]pon a finding that the abusing parent . . . [is] presently unwilling or unable to
       provide adequately for the child’s needs, [a circuit court may] commit the child
       temporarily to the care, custody, and control of the state department, a licensed



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       private child welfare agency, or a suitable person who may be appointed guardian
       by the court.


(Emphasis added). What petitioner fails to recognize is that this dispositional alternative provides
only for a temporary placement for the child, while termination of parental rights under West
Virginia Code § 49-4-604(b)(6) allows for a permanent placement. As this Court has long held,
the paramount goal of these proceedings is to facilitate “safe, stable, secure permanent homes for
abused and/or neglected children.” In re Emily, 208 W. Va. 325, 337, 540 S.E.2d 542, 554 (2000)
(quoting W. Va. R. Proc. for Child Abuse and Neglect Proc. 2). As such, it is clear that petitioner’s
assertion that this less-restrictive dispositional alternative would provide the child with the same
stability as termination of her parental rights is without merit.

        Moreover, the circuit court was presented with sufficient evidence to terminate petitioner’s
parental rights. As set forth above, the DHHR presented evidence that established petitioner was
almost entirely noncompliant with the services provided and continued to abuse controlled
substances through the proceedings. Pursuant 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 . . . [has] 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.” Petitioner’s participation in services was so minimal that her services were terminated a
month prior to the dispositional hearing and she was able to visit the children only once during the
proceedings. Accordingly, it is clear that the circuit court did not err in finding that there was no
reasonable likelihood petitioner could substantially correct the conditions in the near future.
Further, the circuit court’s finding that the children, then of very tender ages, required stability and
permanency supports its finding that termination of petitioner’s parental rights was in their best
interest. According to West Virginia Code § 49-4-604(b)(6), circuit courts may terminate parental
rights upon these findings. Additionally, this Court has held that

               “[t]ermination 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). As such, termination of
petitioner’s parental rights was not in error.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 3, 2019, order is hereby affirmed.


                                                                                             Affirmed.

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ISSUED: June 12, 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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