                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS

                                                                                      FILED
In re D.B.-1, D.B.-2, and I.G.                                                   February 23, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 17-0919 (Mingo County 17-JA-25, 26, and 27)                                  SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
        Petitioner Mother K.B., by counsel Susan J. Van Zant, appeals the Circuit Court of
Mingo County’s September 12, 2017, order terminating her parental rights to D.B.-1, D.B.-2,
and I.G.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. The guardian ad litem
(“guardian”), Diana Carter Wiedel, filed a response on behalf of the children also in support of
the circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating
her parental rights and denying her post-termination visitation.

        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 February of 2017, the DHHR filed an abuse and neglect petition against petitioner. The
DHHR alleged that D.B.-2’s teacher contacted Child Protective Services (“CPS”) after the child
informed her that I.G. was not at school because he could not awaken his mother that morning.
West Virginia State Troopers responded to petitioner’s home and attempted to gain access for
approximately fifteen minutes by knocking on the doors and windows of the residence. Upon
gaining entry, the troopers found a plate with residue, a straw, and prescription bottles that
appeared to be used to crush pills. Petitioner’s residence was reported to be filthy and roach-
infested, with live and dead cockroaches inside the refrigerator. The DHHR noted that petitioner
explained that the plate and straw belonged to I.G.’s father, C.G., despite having previously
reported to CPS that she made him leave the residence after filing an emergency protective order
the month prior. The DHHR also alleged that both D.B.-1 and D.B.-2 reported to the CPS worker
that they observed petitioner and C.G. engage in verbal arguments and domestic violence. D.B.-2
                                                            
              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). Additionally, because the children share the same initials, we
will refer to them as D.B.-1 and D.B.-2 throughout this memorandum decision.


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reported that “everyone” in the house takes medicines and described watching C.G. take
medicine by putting a straw in his nose while petitioner was in the same room. Finally, the
DHHR alleged that petitioner had prior CPS involvement when her children were removed from
her custody in February of 2010. The petition indicated that petitioner minimally complied with
the services provided and regained custody of her children in July of 2011. A CPS case was then
opened in April of 2016 and petitioner received individualized parenting and adult life skills
classes in her home, a psychological evaluation, and services through Logan-Mingo Area Mental
Health. CPS was in the process of closing out those services when it received the February of
2017 referral. A preliminary hearing was held and the CPS worker testified as to the conditions
of abuse at the time the petition was filed. The circuit court found that there was probable cause
to file the petition and scheduled the adjudicatory hearing.

        The circuit court held an adjudicatory hearing in March of 2017 and took judicial notice
of the testimony presented at the preliminary hearing. No other witnesses were called. Based
upon the evidence previously presented, the circuit court adjudicated petitioner as an abusing
parent and held her motion for a post-adjudicatory improvement period in abeyance until she
checked into an inpatient treatment program.

        In May of 2017, the circuit court held a dispositional hearing during which petitioner
requested a post-adjudicatory improvement period. The guardian expressed concerns over
petitioner’s new boyfriend, as he had caused her to be evicted from her last apartment and
admitted to smoking marijuana. However, petitioner had recently completed a short-term
inpatient treatment program and was participating in services. As such, the circuit court granted
petitioner a post-adjudicatory improvement period and continued the dispositional hearing.

        The circuit court held a review hearing in July of 2017, during which the guardian
advised that she filed a motion to terminate petitioner’s improvement period due to her recent
failure to comply with the conditions. The guardian represented that petitioner failed to enter into
a long-term inpatient treatment program and that visitation with the children was terminated
because she appeared intoxicated during the last visit. Petitioner denied that she was intoxicated
but a drug screen conducted that day was positive for methamphetamine. The circuit court
terminated petitioner’s post-adjudicatory improvement period and scheduled the dispositional
hearing.

         In August of 2017, the circuit court held a dispositional hearing during which two
witnesses testified as to petitioner’s failure to correct the conditions of abuse. A CPS worker
testified that petitioner’s supervised visitation was terminated after she appeared intoxicated
during a visit, which occurred after she had completed a twenty-eight-day inpatient program. The
CPS worker stated that petitioner attended individualized parenting and adult life skills classes
but failed to implement any techniques taught as she continued to test positive for drugs, despite
services having been provided in prior abuse and neglect proceedings and throughout the year
leading to the filing of the instant petition. The service provider then testified that petitioner had
a habit of showing more interest in her boyfriends than in her children. The service provider
opined that petitioner could do well on her own but her choice in men was poor and led her to
make bad decisions. The service provider testified that petitioner’s housing situation had been
unstable and that she had lived in four different locations since April. The service provider noted


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that petitioner had been receiving services for a long time and that she had not progressed to an
acceptable level by that point.

        After hearing evidence, the circuit court found that petitioner was presently unwilling and
unable to provide adequately for the children’s needs; that this was petitioner’s third time
receiving services to improve her parenting; and that she continued to test positive for controlled
substances. The circuit court further noted that petitioner minimally participated in services,
continued to show a pattern of bad relationships, and had not provided a stable home for the
children. Finding that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and that termination was in the children’s best interests, the circuit court
terminated her parental rights in its dispositional order dated September 12, 2017.2 It is from this
order that petitioner appeals.

              The Court has previously established the following standard of review in cases such as
this:

                      “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).

        On appeal, petitioner argues that the circuit court erred in terminating her parental rights.
Specifically, petitioner argues that the circuit court erred in finding sufficient evidence to
terminate her parental rights when she made significant improvements to her life and benefitted
from services. We disagree. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are
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 child’s welfare. Pursuant to West Virginia Code § 49-4-
604(c)(3), a situation in which there is no reasonable likelihood that the conditions of abuse or
neglect can be substantially corrected includes one in which “[t]he abusing parent . . . ha[s] not

                                                            
              2
        The circuit court also terminated I.G.’s father’s parental rights in the proceedings below.
The father of D.B.-1 and D.B.-2 is deceased. D.B.-1 is currently placed with a foster family and
the permanency plan is for adoption in that home. D.B.-2 and I.G. are placed with a relative and
the permanency plan is for adoption in that home.
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responded to or followed through with a reasonable family case plan or other rehabilitative
efforts[.]”

        Here, the circuit court was presented with ample evidence that there was no reasonable
likelihood that petitioner could correct the conditions of abuse and neglect. Petitioner has
received substantial services provided to her over the course of several years and yet continues to
behave in the same abusive manner. Petitioner’s children were removed from her custody in
2010 and she received services for over one year until she regained custody in 2011. A CPS case
was opened in 2016 and petitioner received services throughout that year. Despite being given
significant time and resources to correct her parenting skills, a petition was filed against
petitioner again in 2017 for nearly identical reasons, indicating that she failed to implement the
techniques taught to her through services provided by the DHHR.

        Nevertheless, the circuit court granted petitioner a post-adjudicatory improvement period
in an effort to help her regain custody of her children. Having participated in such extensive
services, petitioner was well aware that her parental rights were at risk and yet continued to test
positive for controlled substances in the underlying proceedings, which led to the revocation of
her supervised visitation. Further, petitioner failed to maintain suitable, stable housing; exhibited
behavior suggesting she cared more about her boyfriends than her own children; and failed to
enter a long-term inpatient treatment program as per the circuit court’s order. Contrary to
petitioner’s argument that she made significant improvements in her life, we fail to see that she
made any improvements or benefitted from the services provided. While petitioner argues that
the circuit court should not have terminated her parental rights, 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).

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). As mentioned above, petitioner
participated in extensive services on three separate occasions and yet continued to test positive
for drugs and failed to maintain suitable housing. The circuit court properly found that petitioner
was not likely to correct the conditions of abuse in the near future and that termination of her
parental rights was in the best interests of her children. Accordingly, we find no error.

        Petitioner also argues on appeal that the circuit court erred in denying her post-
termination visitation. In support, petitioner argues that visitation is in the children’s best interest
and that she has a strong bond with them. Petitioner additionally argues that the DHHR failed to
present evidence that she was actually intoxicated at her last supervised visit. However, this
Court finds that petitioner’s arguments are without merit. There is no evidence in the record that
petitioner filed a written motion for post-termination visitation, nor did she orally request it
during the dispositional hearing. We have previously held that “[o]ur general rule is that
nonjurisdictional questions . . . raised for the first time on appeal, will not be considered.” Noble


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v. W.Va. Dep’t of Motor Vehicles, 223 W.Va. 818, 821, 679 S.E.2d 650, 653 (2009) (quoting
Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20
(1999)). As such, we decline to consider this argument on appeal.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 12, 2017, order is hereby affirmed.


                                                                                     Affirmed.

ISSUED: February 23, 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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