                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


                                                                                  FILED
In re: B.R.-2
                                                                               June 19, 2017
                                                                               RORY L. PERRY II, CLERK
No. 16-1230 (Webster County 15-JA-63)                                        SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

                                 MEMORANDUM DECISION
        Petitioner Mother J.R., by counsel Dennis J. Willett, appeals the Circuit Court of Webster
County’s November 23, 2016, order terminating her parental rights to B.R.-2.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a
response in support of the circuit court’s order and a supplemental appendix. The guardian ad
litem (“guardian”), Mary Elizabeth Snead, filed a response on behalf of the child also in support
of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in
adjudicating her as an abusing parent based on a finding that she failed to correct conditions of
abuse and neglect that led to a prior involuntary termination of her parental rights to older
children.2

        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 a prior circuit court proceeding in June of 2006, the DHHR filed an abuse and neglect
petition alleging that petitioner operated a methamphetamine laboratory in the presence of T.R.
and B.R.-1.3 Petitioner was subsequently criminally charged with the operation of a
methamphetamine laboratory. Ultimately, petitioner’s parental rights to T.R. and B.R.-1 were

       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). Because two of the children referenced in this matter share
the same initials, we will refer to them as B.R.-1 and B.R.-2 throughout this memorandum
decision.
       2
         On appeal, petitioner does not raise a specific assignment of error regarding the circuit
court’s termination of parental rights.
       3
           T.R. and B.R.-1 are not at issue in the current appeal.



                                                    1


involuntarily terminated by order entered on December 7, 2009. According to the dispositional
order, petitioner was ordered to remain drug and alcohol free and to submit to random drug and
alcohol screening.

        Thereafter, petitioner gave birth to B.R.-2 in October of 2015. The hospital reported the
birth pursuant to West Virginia Code § 49-4-605(a)(3).4 Petitioner and the child both tested
positive for Xanax and hydrocodone at the hospital. The DHHR filed an abuse and neglect
petition based on B.R.-2’s birth, petitioner’s positive drug screens, and her prior termination. The
petition noted that, upon information and belief, a physician prescribed both medications to
petitioner during her pregnancy.

        In December of 2015, the circuit court held a preliminary hearing. Following the
presentation of evidence, the circuit court found that the abuse and neglect petition was a “proper
mandatory filing based on [petitioner’s] prior termination of parental rights and the birth of a
new child, as well as the presence of drugs in both [petitioner’s] and [B.R.-2’s] system at the
time of birth.”

         In January of 2016, the circuit court held an adjudicatory hearing wherein petitioner
moved the circuit court for a pre-adjudicatory improvement period. Petitioner’s obstetrician
testified the he prescribed the hydrocodone in April of 2015 for chronic back pain. He also
testified, however, that he did not recall prescribing the Xanax. He further testified that he
believed that B.R.-2 had been “habituated to medication” that petitioner was taking and he
expected the child to suffer from withdrawals. Following the physician’s testimony, the circuit
court denied petitioner’s motion for a pre-adjudicatory improvement period. Petitioner then
testified that she did not recall the circuit court’s prior abuse and neglect order that she remain
drug and alcohol free or that she could not consume any controlled substances. She also testified
that she was currently being randomly drug screened at the probation department and notified
probation about her prescriptions. She further testified that she had previously been prescribed
Flexeril, Visatril, and Xanax and she “did not know that change would be a violation” of the
circuit court’s previous order. Petitioner’s probation officer testified that she began supervising
petitioner in 2011, and compiled a list of petitioner’s medications. She also testified that
petitioner tested positive for controlled substances that were not on the list of her prescribed
medications. Following the evidence presented, the circuit court found that petitioner continued
to ingest controlled substances and failed to correct the conditions that led to the prior abuse and
neglect petition’s filing. The circuit court adjudicated petitioner an abusing parent by order
entered on March 7, 2016.

        In November of 2016, the circuit court held a dispositional hearing wherein it terminated
petitioner’s parental rights to B.R.-2, by order entered on November 23, 2016. According to the
circuit court’s order, petitioner admitted to abusing methamphetamines and collecting her older
       4
         Pursuant to West Virginia Code 49-4-605(a)(3), “the [DHHR] shall file or join in a
petition or otherwise seek a ruling in any pending proceeding to terminate parental rights . . .
[when] the parental rights of the parent to another child have been terminated involuntarily.”




                                                 2


child’s urine to defeat future random drug screens.5 It is from the dispositional order that
petitioner appeals.6

       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’s adjudication of petitioner as an abusing parent.

        On appeal, petitioner argues that the circuit court’s findings of abuse were not supported
by clear and convincing evidence. Petitioner asserts that the evidence presented at the
adjudicatory hearing was insufficient to support the findings of abuse. West Virginia Code § 49­
1-201 defines an “abused child” as “a child whose health or welfare is being harmed or
threatened by [a] parent, guardian or custodian who knowingly or intentionally inflicts, attempts
to inflict or knowingly allows another person to inflict, physical injury or mental or emotional
injury, upon the child or another child in the home.” Further, this Court has described the “clear
and convincing” standard as one in which

       the evidence in an abuse and neglect case does not have to satisfy the stringent
       standard of beyond a reasonable doubt; the evidence must establish abuse by clear
       and convincing evidence. This Court has explained that “‘clear and convincing’ is
       the measure or degree of proof that will produce in the mind of the factfinder a


       5
        Petitioner’s parental rights to B.R.-2 were terminated below. Further, petitioner’s
parental rights to T.R. and B.R-1 were terminated in a previous abuse and neglect proceeding.
The guardian states that B.R.-2 was returned to R.R., her biological father, after he completed an
improvement period, and the permanency plan is for her to remain in the father’s home.
       6
       A transcript of petitioner’s dispositional hearing is not included in either petitioner’s
appendix or in the DHHR’s supplemental appendix.




                                                3


       firm belief or conviction as to the allegations sought to be established.” Brown v.
       Gobble, 196 W.Va. 559, 564, 474 S.E.2d 489, 494 (1996)

In re F.S. and Z.S., 233 W.Va. 538, 546, 759 S.E.2d 769, 777 (2014). Further, we have explained
that

               [w]here there has been a prior involuntary termination of parental rights to
       a sibling, the issue of whether the parent has remedied the problems which led to
       the prior involuntary termination sufficient to parent a subsequently-born child
       must, at minimum, be reviewed by a court, and such review should be initiated on
       a petition pursuant to the provisions governing the procedure in cases of child
       neglect or abuse set forth in West Virginia Code §§ [49-4-601 to 610 (2015)].
       Although the requirement that such a petition be filed does not mandate
       termination in all circumstances, the legislature has reduced the minimum
       threshold of evidence necessary for termination where one of the factors outlined
       in West Virginia Code § [49-4-605 (2015)] is present.

Syl. Pt. 2, in part, In re George Glen B. Jr., 205 W.Va. 435, 437, 518 S.E.2d 865, (1999).
Additionally, we have also explained that when an abuse and neglect petition is based

       upon a previous involuntary termination of parental rights . . . prior to the lower
       court’s making any disposition regarding the petition, it must allow the
       development of evidence surrounding the prior involuntary termination(s) and
       what actions, if any, the parent(s) have taken to remedy the circumstances which
       led to the prior termination(s).

Id. at 437, 518 S.E.2d at 865, Syl. Pt. 4.

        In this case, as to the January of 2016 adjudication, the DHHR alleged that petitioner
gave birth to B.R.-2 and she and the child both tested positive for Xanax and hydrocodone at the
hospital. The DHHR filed an abuse and neglect petition based on B.R.-2’s birth and positive drug
screens. At the adjudicatory hearing, petitioner’s obstetrician testified the he prescribed the
hydrocodone for chronic back pain but did not prescribe the Xanax. He further testified that he
believed that B.R.-2 was “habituated to medication” and would suffer from withdrawals.
Petitioner testified that she did not recall that she was previously ordered to remain drug and
alcohol free or that she could not consume any controlled substances. She also admitted that she
abused controlled substances in violation of the circuit court’s order.

        Moreover, the circuit court found that, based upon petitioner’s continued use of
controlled substances, like Xanax, she failed to correct the conditions that led to her previous
involuntary termination. Given the clear and convincing evidence of abuse and petitioner’s
failure to correct the conditions that led to the filing of the prior abuse and neglect petition, we
find no error in the circuit court’s adjudication.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 23, 2016, order is hereby affirmed.

                                                 4


                                          Affirmed.

ISSUED: June 19, 2017


CONCURRED IN BY:

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




                                    5


