                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS

                                                                                     FILED
In re J.L. and B.F.                                                                April 9, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 17-1071 (Randolph County 2016-JA-73 and 74)                                  SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Mother A.W. by counsel G. Phillip Davis, appeals the Circuit Court of
Randolph County’s November 3, 2017, order terminating her parental rights to J.L. and B.F.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Brandolyn N. Felton-Ernest, filed a response in support of the circuit court’s order. The guardian
ad litem (“guardian”), Gregory R. Tingler, 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 terminating
her parental rights to the children when the issues of abuse and neglect were correctable.

        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.

        Subsequent to an original petition filed in the Circuit Court of Nicholas County and a
transfer, the DHHR filed an amended petition in the Circuit Court of Randolph County in
September of 2016 that alleged the parents abused the children by failing to provide them proper
supervision and shelter. Further, according to the amended petition, the children disclosed sexual
abuse by a juvenile relative who lived near the home. According to the petition, after the children
informed the parents of the abuse, the parents continued to allow the offending juvenile access to
the children. The amended petition also contained allegations of domestic violence and substance
abuse. Petitioner waived her preliminary hearing.

        Later that month, the circuit court held an adjudicatory hearing, during which petitioner
stipulated to the allegation that she failed to properly supervise the children and received a post-
adjudicatory improvement period. Pursuant to the terms and conditions of her improvement
period, petitioner was required to submit to random drug screens and provide negative screens in
                                                            
              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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order to exercise visitation with the children. Thereafter, the circuit court held a series of review
hearings. Despite some positive drug screens and other issues of noncompliance, the circuit court
nonetheless permitted the improvement period to continue and eventually granted petitioner
multiple extensions of the same.

        In August of 2017, the DHHR filed a motion to terminate petitioner’s parental rights
upon allegations that she failed to comply with the terms and conditions of her improvement
period or otherwise remedy the conditions of abuse and neglect. In September of 2017, the
circuit court held a hearing concerning petitioner’s improvement period, during which it found
that petitioner was not “wholly consistent in visitation with the children” and further that she
provided positive drug screens and failed to comply with random screening. Accordingly, the
circuit court found that petitioner had not satisfactorily complied with the terms of her
improvement period and terminated the same. The circuit court further ordered that petitioner
could continue to participate in supervised visitation under the terms previously set forth.

         In October of 2017, the circuit court held a dispositional hearing. A DHHR worker
testified to petitioner’s noncompliance and the fact that one service provider terminated
petitioner’s services due to the noncompliance. The DHHR employee also testified that
petitioner’s last visit with the child was in August of 2017. The circuit court also heard evidence
of a drug screen petitioner failed in September of 2017. During the hearing, petitioner moved for
a dispositional improvement period, which both the DHHR and the guardian opposed.
Ultimately, the circuit court found that it could not return the children to petitioner since she
“[chose] to use drugs over visiting with and regaining custody of” the children. This finding was
based, in part, upon the fact that petitioner failed to report for any drug screens after the prior
hearing in order to exercise visitation with the children. Accordingly, the circuit court found
there was no reasonable likelihood petitioner could substantially correct the conditions of abuse
and neglect and that termination of her parental rights was necessary for the children’s welfare.
By order entered on November 3, 2017, the circuit court terminated petitioner’s parental rights to
the children.2 It is from this 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

                                                            
              2
        Additionally, the fathers’ parental rights to the children were either terminated or
voluntarily relinquished below. The children remain in a foster home with a permanency plan of
adoption therein.
                                                               2

 
       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 proceedings below.

         On appeal, petitioner argues that the circuit court erred in terminating her parental rights
when the conditions of abuse and neglect were correctable. According to petitioner, because the
circuit court noted that she did “a few things sort of well,” it should have imposed a less-
restrictive dispositional alternative. We do not agree, as petitioner is incorrect in her assertion
that the conditions of abuse and neglect were correctable. On the contrary, citing petitioner’s
failure to comply with random drug screens, the positive screens she did provide on the
occasions she submitted, and her failure to visit with the children, the circuit court specifically
found that there was no reasonable likelihood the conditions of abuse and neglect could be
substantially corrected. 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 . . . designed to reduce
or prevent the abuse or neglect of the child[.]” As set forth above, petitioner failed to follow
through with the family case plan by virtue of her noncompliance with the terms and conditions
of her improvement period. The circuit court further found that termination of petitioner’s
parental rights was necessary for the children’s welfare. Pursuant to West Virginia Code § 49-4-
604(b)(6), circuit courts are directed to terminate parental rights upon these findings.

       We have also held as follows:

               “[C]ourts are not required to exhaust every speculative possibility of
       parental improvement . . . where it appears that the welfare of the child will be
       seriously threatened, and this is particularly applicable to children under the age
       of three years who are more susceptible to illness, need consistent close
       interaction with fully committed adults, and are likely to have their emotional and
       physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re
       R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 4, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Here, petitioner received
multiple continuances of her improvement period in an effort to afford her time to make
sufficient improvement. Despite the extended nature of her improvement period, the circuit court
ultimately found that petitioner chose “to use drugs over visiting with and regaining custody of”
the children. “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
In Interest of Tiffany Marie S., 196 W.Va. 223, 228 and 237, 470 S.E.2d 177, 182 and 191
(1996); State ex rel. Amy M. v. Kaufman, 196 W.Va. 251, 259, 470 S.E.2d 205, 213 (1996)).
Accordingly, based on the foregoing evidence, we find no error in the circuit court’s finding that

                                                 3

 
petitioner could not correct the conditions of abuse and neglect or its termination of petitioner’s
parental rights.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 3, 2017, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: April 9, 2018


CONCURRED IN BY:

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




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