                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

In re A.S., B.V., and A.V.                                                           FILED
                                                                                  June 12, 2019
No. 19-0036 (Ohio County 18-CJA-36, 18-CJA-37, and 18-CJA-38)                   EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION



       Petitioner Mother J.O., by counsel John M. Jurco, appeals the Circuit Court of Ohio
County’s October 22, 2018, order terminating her parental rights to A.S., B.V., and A.V.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, Joseph J.
Moses, filed a response on behalf of the children in support of the circuit court’s order and a
supplemental appendix. On appeal, petitioner argues that the circuit court erred in terminating her
parental rights without 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 April of 2018, the DHHR filed an abuse and neglect petition that alleged the DHHR
received multiple referrals concerning petitioner’s drug use, her failure to properly supervise the
children, and issues of domestic violence in the home. More specifically, one referral alleged that
petitioner stabbed her boyfriend and “was waving a gun around, screaming that she was going to
kill everyone” while the children were present. The referrals also raised concerns about the
conditions in the home, including a lack of utilities. Shortly before the petition’s filing, the DHHR
received a final referral indicating that, following a domestic altercation in the home, petitioner
was shot with a hunting rifle. Petitioner’s boyfriend was arrested following the incident, and
petitioner was transferred to Ruby Memorial Hospital to undergo treatment for “serious injuries”


       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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to her arm. According to petitioner, the shooting was accidental and there were no issues of
domestic violence in the home. DHHR employees, however, spoke with the children, who
confirmed witnessing domestic violence between petitioner and her boyfriend in the home. The
children also indicated that they were physically abused. As to substance abuse, petitioner admitted
to abusing Adderall, while the children reportedly saw a “dope pipe” in petitioner’s purse. The
children also reported having “been unable to wake [petitioner] up to feed them,” which caused
the children to “go hungry or try to fix something themselves.” The DHHR also confirmed that
petitioner’s boyfriend’s brother died from an overdose on the porch of their home at a time he was
supposed to be caring for the children. Following a preliminary hearing, the circuit court found
that removal of the children from the home was appropriate given the imminent danger to their
welfare.

        At an adjudicatory hearing in June of 2018, petitioner stipulated to abusing the children by
virtue of her “issues with mental health” and drug addiction. The circuit court further found that
petitioner had not submitted to drug screening and “would need to do that for visits [with the
children] to be set up.” Additionally, petitioner sought a post-adjudicatory improvement period,
but no ruling was made in regard to that request during the hearing.

        In July of 2018, the parties appeared for a status hearing following a multidisciplinary team
(“MDT”) meeting to discuss the possibility of petitioner obtaining an improvement period.
According to the circuit court’s findings, during the MDT petitioner “denied almost everything,
stating the kids are lying.” Accordingly, the DHHR indicated that it would not agree to an
improvement period for petitioner because of her failure to acknowledge the issues that needed to
be addressed. The circuit court further found that, despite the various issues related to their
relationship, petitioner and her boyfriend “intend[ed] to remain together.”

       In August of 2018, the parties appeared for a hearing on petitioner’s motion for an
improvement period. According to the record, petitioner reported to a treatment facility,
Northwood, the day prior to the hearing “for mental health issues.” The DHHR “objected to any
postponement of the . . . hearing” because it alleged that petitioner “knew this hearing was set
before” she decided to report to Northwood. Ultimately, the circuit court denied petitioner’s
motion for a post-adjudicatory improvement period.

        In October of 2018, the circuit court held a dispositional hearing. According to petitioner’s
counsel, petitioner had no contact with him since August of 2018. The circuit court denied
counsel’s request for “more time to prepare for the hearing.” Following the presentation of
evidence, the circuit court found that petitioner attended only one MDT meeting during the case
and “denied ‘everything’” during that meeting. Further, the circuit court found that petitioner
“failed to cooperate with [the] DHHR[] and failed to fully acknowledge the abuse and neglect of
the children.” The circuit court also made findings concerning petitioner’s history of substance
abuse, as established by her own admission and extensive testimony from multiple witnesses.
Further, evidence established that petitioner’s substance abuse contributed to the domestic
violence in the home, including an incident in which petitioner stabbed her boyfriend in front of
the children while she “appeared impaired.” The circuit court further found that petitioner
“engage[d] in behavior that presents a danger to the children, especially given [her] drug abuse
issues.” In addition to the incident in which petitioner was shot, this also included the fact that

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“[t]here were loaded and unsecured weapons in the home.” Further, the circuit court recounted
evidence concerning petitioner’s failure to maintain an appropriate home for the children, given
that it lacked “heat, electric and water” at various points and was “in a deplorable condition.”
Testimony established that, “rather than paying . . . bills or buying food for the children,” petitioner
“us[ed her] money on drugs.” Additionally, because of her refusal to submit to drug screening,
maintain contact with the DHHR, and cooperate, generally, petitioner had “not seen the children
since their removal by the DHHR.”

        The circuit court went on to find that petitioner “demonstrated an inadequate capacity to
solve the problems of abuse and neglect on [her] own or with help.” Despite assistance from the
DHHR, the circuit court found that petitioner could not remedy the issues “relating to domestic
violence, abuse of the children, exposure of the children to dangerous situations and dangerous
people, and neglect of the children, when she does not acknowledge these problems.” Further, the
circuit court found that petitioner was addicted to controlled substances such that it seriously
impacted her parenting skills. Although she sought treatment, the circuit court noted that petitioner
“failed to pursue after care treatment that was recommended.” Due to petitioner’s failure to follow
through with the case plan, the circuit court found that there was no reasonable likelihood she
could substantially correct the conditions of abuse and neglect. The circuit court also found that
termination of petitioner’s parental rights was in the children’s best interests. Ultimately, the circuit
court terminated petitioner’s parental rights. 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
        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 review, the Court finds no
error in the proceedings below.

       On appeal, petitioner alleges that the circuit court erred in terminating her parental rights
instead of imposing a less-restrictive dispositional alternative. In support of this assignment of


        2
         The children’s fathers’ parental rights have either been terminated or voluntarily
relinquished. According to the DHHR, the permanency plan for the children is adoption by the
maternal grandparents.
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error, petitioner highlights several factors that she believes mitigate against termination of her
parental rights, including the following: (1) the fact she was not adjudicated upon issues of
domestic violence; (2) conflicting evidence in regard to several of the domestic violence incidents;
(3) her admissions at disposition relating to substance abuse and other issues; (4) the complications
from her gunshot wound that hampered her compliance; (5) improvement in her treatment through
Northwood resulting in a “guarded” prognosis; (6) the possibility that the DHHR’s permanency
plan could have provided for disposition under West Virginia Code § 49-4-604(b)(5); and (7) the
fact that she did not refuse to testify pursuant to the Fifth Amendment. According to petitioner,
these facts support a finding that there was a reasonable likelihood she could substantially correct
the conditions of abuse and neglect in the near future. Petitioner’s arguments, however, are not
compelling and ignore the overwhelming evidence that supported the disposition imposed below.

        While petitioner cites her “admissions” in the case, she fails to acknowledge that the
admissions in question were made at the dispositional hearing. By that time, petitioner had failed
to participate in services to remedy the conditions of abuse and neglect. Specifically, petitioner
attended only one MDT meeting earlier in the proceedings, during which she accused the children
of lying about the extensive abuse and neglect they suffered in her home and ultimately denied
“everything” alleged in the petition. This MDT meeting occurred after petitioner stipulated to
certain allegations at adjudication. As such, it is clear that petitioner never meaningfully
acknowledged the issues of abuse and neglect in this case. As this Court has held,

       [i]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
       of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator
       of said abuse and neglect, results in making the problem untreatable and in making
       an improvement period an exercise in futility at the child’s expense.

In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215
W. Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Accordingly, it is clear that petitioner was incapable
of remedying the conditions of abuse and neglect in this matter because of her refusal to
acknowledge them.

        While petitioner argues that the circuit court erred in relying on the issues of domestic
violence in the home in deciding which dispositional alternative to impose, the findings above
demonstrate that there was ample evidence absent the domestic violence issues to support
termination. As outlined above, with the exception of treatment which she did not complete,
petitioner took no steps to address any of the issues in the home, including her substance abuse
and mental health issues. Further, while it is true that petitioner was not adjudicated on the basis
of domestic violence, it is clear that this issue was inextricably related to her substance abuse. The
record shows that during the altercation in which petitioner stabbed her boyfriend in the children’s
presence, she appeared to be under the influence of drugs. Accordingly, it is clear that petitioner’s
issues with domestic violence were directly related to her drug addiction. As such, we find no error
in the circuit court’s consideration of evidence regarding the ongoing domestic violence in the
home in reaching its dispositional decision.




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        We also note that, in reaching its final decision, the circuit court found that petitioner had
not seen her children since their removal because of her failure to submit to drug screening. “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.” In re Katie
S., 198 W. Va. 79, 90, n.14, 479 S.E.2d 589, 600 n.14 (1996) (citing Tiffany Marie S., 196 W. Va.
at 228 and 237, 470 S.E.2d at 182 and 191; State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 259,
470 S.E.2d 205, 213 (1996)). Again, this evidence overwhelmingly supports the circuit court’s
finding that petitioner was unable to correct the conditions of abuse and neglect.

       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, as evidenced by the continuation or insubstantial diminution
       of conditions which threatened the health, welfare or life of the child.

Additionally, under West Virginia Code § 49-4-604(c)(1), 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] habitually abused or [is] addicted to alcohol,
       controlled substances or drugs, to the extent that proper parenting skills have been
       seriously impaired and the person or persons have not responded to or followed
       through the recommended and appropriate treatment which could have improved
       the capacity for adequate parental functioning.

With these parameters in mind, it is clear that the record supports the circuit court’s finding that
there was no reasonable likelihood petitioner could substantially correct the conditions of neglect,
given her noncompliance during the proceedings, as more fully set forth above. While it is true
that petitioner underwent some treatment in this matter, the circuit court specifically found that
petitioner failed to follow through with the aftercare recommended during that treatment. As such,
it is clear that petitioner was both addicted to drugs such that her proper parenting skills were
seriously impaired and she failed to follow through with the reasonable family case plan.

        West Virginia Code § 49-4-604(b)(6) permits a circuit court 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 welfare of the
child. The circuit court made both findings in this matter upon substantial evidence. Further, 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-

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       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). Given that petitioner failed to
comply with services below, it is clear that she was not entitled to a less-restrictive dispositional
alternative.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 22, 2018, order is hereby affirmed.


                                                                                          Affirmed.

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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