                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


                                                                                  FILED
In Re: T.S. & J.P.                                                                April 28, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
No. 13-1271 (Wood County 13-JA-16 & 13-JA-17)                                  OF WEST VIRGINIA




                                MEMORANDUM DECISION

       Petitioner Mother, by counsel Eric K. Powell, appeals the Circuit Court of Wood
County’s November 19, 2013, order terminating her parental rights to T.S. and J.P. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Katherine M.
Bond, filed its response in support of the circuit court’s order. The guardian ad litem, Michael D.
Farnsworth Jr., filed a response on behalf of the children supporting the circuit court’s order. On
appeal, petitioner alleges that the circuit court erred in terminating her parental rights because
there was insufficient evidence to conclude she could not correct the conditions of neglect and
termination was not necessary to protect the children’s welfare.

        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.

        Beginning in 2000, the DHHR had involvement with petitioner, providing her with
services, including safety services and drug and alcohol detoxification. On January 3, 2013,
police filed a report indicating that there was a methamphetamine lab, substance abuse, and
domestic violence in petitioner’s home. That same month, T.S.’s biological father, R.S., obtained
custody of both children through family court. R.S. is not J.P.’s biological father, but he agreed
to take custody of both children to maintain their bond. In February of 2013, the DHHR filed its
initial abuse and neglect petition alleging that petitioner abused and neglected the children
through her substance abuse, failure to protect the children, and allowing them to be exposed to
dangerous and harmful substances and unsafe living conditions. The DHHR requested that the
children remain in the custody of T.S.’s biological father.

        The circuit court held an adjudicatory hearing in April of 2013, and petitioner stipulated
to abuse and neglect due to domestic violence between her and J.L.P., J.P.’s biological father,
and because her addiction to alcohol and controlled substances affected her ability to properly
care for the children. Thereafter, the circuit court granted petitioner a post-adjudicatory
improvement period, and the DHHR assisted petitioner in getting admitted to the Westbrook
Crisis Stabilization Unit for detoxification. On August 30, 2013, the circuit court held a review
hearing to assess petitioner’s progress in the improvement period and ultimately terminated the
same. In November of 2013, the circuit court held a dispositional hearing and found that

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petitioner either tested positive or did not appear for the majority of her urine screens. Petitioner
also testified that she consumed alcohol within twenty-four hours of the dispositional hearing.
Ultimately, the circuit court terminated petitioner’s parental rights. 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
       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 circuit court terminating petitioner’s parental rights. Petitioner argues that she was
substantially compliant with the terms of her improvement period and argues that the circuit
court placed too much emphasis on her failed urine screens and the ethyl glucuronide (“EtG”)
test utilized to detect alcohol. According to petitioner, this testing method is unreliable and has
never been approved by this Court. However, we find no merit to this argument because even
absent petitioner’s positive screens for alcohol consumption, it is clear the circuit court had
sufficient evidence upon which to find that petitioner could not remedy the conditions of neglect.

        The circuit court found that she “failed to comply with the terms and conditions of her
improvement period.” This finding was based upon substantial evidence, including the fact that
petitioner either tested positive for or failed to attend the “vast majority” of drug screens, her
failure to secure a home, and her failure to attend services such as parenting classes, substance
abuse treatment, and individual therapy. In regard to substance abuse treatment, the record
contains ample evidence of petitioner’s failure to comply with these services.

        By August of 2013, the only service in which petitioner was participating to address her
substance abuse was urine screens. In September of 2013, petitioner began attending some
treatment appointments at Westbrook and she completed Motivational Recovery Counseling on
September 24, 2013. She then began the next step of outpatient treatment, the Women’s
Intensive Recovery Program, but her participation did not last long and she stopped attending by
October of 2013. After October 16, 2013, petitioner did not attend individual therapy and she
never completed the program.




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        Also, contrary to petitioner’s assertion in her appellate brief that she was not consuming
alcohol and that the unreliable nature of the tests produced positive results, petitioner admitted at
the dispositional hearing that she had consumed alcohol within the past twenty-four hours and
she previously admitted that she continued to abuse alcohol after her improvement period began
when she asked the DHHR for assistance with rehabilitation. As such, the circuit court was
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correct in finding that petitioner failed to address the root problem of her neglect, alcohol abuse,
among many other factors contributing to the abusive conditions in the home. Accordingly, the
circuit court’s finding was supported by substantial evidence beyond petitioner’satfailed urine
                                                                                 released 3:00 p.m.
screens related to alcohol consumption.

        Pursuant to West Virginia Code §§ 49-6-5(b)(1) and (3), petitioner’s continued alcohol
abuse and failure to follow through with the reasonable family case plan constitute situations in
which there is no reasonable likelihood that the conditions of neglect could be corrected in the
near future. Further, the circuit court found that, based on petitioner’s failure to address her
substance abuse, termination was necessary for the children’s welfare. The record clearly
demonstrates that the circuit court was presented with sufficient evidence upon which to make
these findings, and pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to
terminate parental rights upon these findings.

     For the foregoing reasons, we find no error in the decision of the circuit court and its
November 19, 2013, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: April 28, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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