                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS

                                                                                     FILED
In re L.S. and S.C.
                                                                                November 21, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0707 (Clay County 17-JA-39 and 17-JA-40)                                  SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Mother C.C., by counsel Clinton Bischoff, appeals the Circuit Court of Clay
County’s July 5, 2018, order terminating her parental rights to L.S. and S.C.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Michael W.
Asbury, 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 less-restrictive
dispositional alternative 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 August of 2017, the DHHR filed a petition alleging that petitioner and the father
engaged in domestic violence and substance abuse in the presence of the children. According to
the DHHR, petitioner continued to reside with the father despite repeated acts of domestic
violence, including an incident in which the father struck petitioner and drove erratically while L.
S. was a passenger in the vehicle. The DHHR alleged that following that incident L. S. stated “I
want daddy to go to jail.” The DHHR further alleged that S.C. lived with her maternal
grandmother during most of her life. Petitioner waived her preliminary hearing. The circuit court
ordered the DHHR to provide petitioner with parenting and adult life skills classes, counseling,
and supervised visitation with the children.


                                                            
              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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        The circuit court held an adjudicatory hearing in August of 2018 and petitioner stipulated
to the allegations of domestic violence and substance abuse as contained in the petition. The
circuit court adjudicated petitioner as an abusing parent. Petitioner moved for a post-adjudicatory
improvement period and the circuit court granted that motion. As conditions of her improvement
period, the circuit court ordered petitioner to participate in adult life skills and parenting classes,
“in any and all needful and necessary services offered” by the DHHR, remain drug and alcohol
free, participate in random drug screens, participate in a psychological examination and follow
all recommendations, participate in supervised visitation, and maintain gainful employment.

         In February of 2018, the DHHR filed a motion to suspend petitioner’s supervised
visitation on the basis that petitioner refused to drug screen prior to a visit. The motion was
granted. In March of 2018, the circuit court held a dispositional hearing and the DHHR indicated
that petitioner tested positive for methamphetamine in February of 2018 against the circuit
court’s orders. Petitioner moved to extend her post-adjudicatory improvement period as she
intended to enroll in outpatient drug treatment to address her substance abuse issues. The circuit
court continued the dispositional hearing and ordered the parties to undergo drug screens during
the hearing. Petitioner tested positive for morphine and fentanyl. The circuit court reinstated
petitioner’s supervised visitations on the condition of two consecutive weeks of negative drug
screen results. In April of 2018, the circuit court held a second dispositional hearing, however the
parties agreed that a continuation was necessary as petitioner’s psychological evaluation had not
yet been returned and it was pertinent to disposition. The circuit court continued the hearing.

        The circuit court held the final dispositional hearing in May of 2018 and heard evidence
regarding petitioner’s compliance with the terms of her post-adjudicatory improvement period. A
DHHR worker testified that petitioner tested positive for controlled substances three times during
late February of 2018 and early March of 2018. Additionally, the DHHR worker explained that
she attempted to help petitioner find inpatient substance abuse treatment, but that petitioner
refused assistance and indicated she was entering a twenty-eight-day treatment facility. The
DHHR worker noted that petitioner never provided evidence of that treatment to the DHHR,
despite her requests for petitioner to sign a release for that information. Additionally, the DHHR
worker testified that petitioner cancelled her parenting and adult life skills classes and that she
was not aware if petitioner was employed.

       The psychologist who performed petitioner’s psychological evaluation testified that the
prognosis for improved parenting was “very poor.” The psychologist explained that petitioner
minimized the domestic violence and substance abuse in the home. Additionally, the
psychologist opined that petitioner suffered from maladaptive personality traits, which are “not
amenable to short-term change.” The psychologist also noted that she recommended petitioner
undergo inpatient substance abuse treatment if she tested positive for controlled substances
during these proceedings. On cross-examination, the psychologist testified that petitioner did
acknowledge the issues regarding the domestic violence and substance abuse.

       Finally, petitioner testified that she was employed through the Clay Development
Corporation to care for her grandmother. Petitioner also testified that she no longer had a drug
problem and that any type of drug rehabilitation would be pointless. Petitioner further explained
that she completed an intake appointment at one facility and went to a different facility four

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times. Petitioner admitted that she purchased methamphetamine and heroin from an individual
she had previously known and met in Mink Shoals, West Virginia. Petitioner also admitted that
she failed to call a treatment facility that the DHHR believed had an available space. Rather,
petitioner testified that she called different facilities instead. Petitioner explained that the reason
she used the substances was because she felt hopeless regarding the proceedings. Petitioner
reiterated that she did not believe she needed substance abuse treatment because she had been
clean without treatment since March of 2018.

        Ultimately, the circuit court found that petitioner abused controlled substances during her
improvement period. Additionally, the circuit court found that petitioner was aware that she
needed to attend inpatient substance abuse treatment and failed to do so. The circuit court
explained that petitioner failed to acknowledge that she had a serious substance abuse problem,
that she could not properly parent the children until she acknowledged that problem, and that she
failed to obtain the proper treatment. Accordingly, the circuit court found that the allegations that
led to the filing of the petition could not be corrected in the near future and that reunification
with petitioner was not in the children’s best interest. The circuit court terminated petitioner’s
parental rights in its July 5, 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).

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
because the conditions which led to the filing of the petition were correctable. According to
petitioner, she substantially complied with the terms of her post-adjudicatory improvement
                                                            
              2
         S.C.’s unknown father’s parental rights were also terminated. L.S.’s father participated
in an improvement period, regained custody of the child, and had the petition against him
dismissed. Permanency has been achieved for L.S. According to the parties, the permanency plan
for S.C. is adoption in current relative foster placement.



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period and could have been successful if given more time to participate. We disagree. West
Virginia Code § 49-4-604(b)(6) provides that a circuit court may 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
children. West Virginia Code § 49-4-604(c)(1) provides that there is no reasonable likelihood
that the conditions of abuse and neglect can be substantially corrected when “[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 . . . [has] not
responded to or followed through the recommended and appropriate treatment[.]”

        The record supports a finding that there was no reasonable likelihood that petitioner
could substantially correct the conditions of abuse and neglect in the near future. Significantly,
petitioner did not recognize the danger her abuse of controlled substances presented despite six
months of services provided by the DHHR. Petitioner testified that when her situation felt
hopeless during the proceedings, she turned to controlled substances for solace. Despite her
dependence on these substances during this difficult period in her life, petitioner did not
recognize that she was addicted to controlled substances and that she needed additional treatment
to control her addiction. This Court has previously held that

       [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)). On appeal, petitioner admits that she failed to
enroll in any treatment programs “partly due to her lack of effort, and partly due to her lack of
insight and acceptance in that she suffered from a drug addiction[.]” Although petitioner
complied with many of the terms of her improvement period, she reverted to substance abuse and
refused to follow through with the recommended and appropriate treatment. Clearly, the
children’s best interests would not be served in petitioner’s custody if she continued to abuse
controlled substances. Accordingly, we find no error in the circuit court’s termination of
petitioner’s parental rights.

        Additionally, to the extent that petitioner argues the circuit court should have ordered a
less-restrictive dispositional alternative, we have held as follows:

               “Termination 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).

                                                 4        
 
Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). The record supports the circuit
court’s findings that there was no reasonable likelihood petitioner could have remedied the
conditions of abuse and neglect in the near future and that termination of her parental rights was
in the best interest of the children. Further, as petitioner takes specific issue with the circuit
court’s denial of her motion for a post-dispositional improvement period, it is necessary to call
attention to petitioner’s lack of a substantial change in circumstances. West Virginia Code § 49-
4-610(3)(D) governs post-dispositional improvement periods and provides that, if a respondent
was previously granted an improvement period, the respondent must “demonstrate[] that since
the initial improvement period, the respondent has experienced a substantial change in
circumstances” and that “due to that change in circumstances, the respondent is likely to fully
participate in the improvement period[.]” The record is devoid of any indication that petitioner
experienced any change in her circumstances and petitioner does not argue any change occurred.
Instead, petitioner’s situation was essentially unchanged compared to the beginning of the
proceedings even after the DHHR’s provision of services. Therefore, the record does not support
granting petitioner a second improvement period. Accordingly, we find no error with the circuit
court’s termination of petitioner’s parental rights rather than the imposition of a less-restrictive
dispositional alternative.

        For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 5, 2018, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: November 21, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment



 




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