                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS

                                                                                     FILED
In re B.H.                                                                        June 11, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0127 (Randolph County 2017-JA-025)                                        SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Mother M.H., by counsel David C. Fuellhart, appeals the Circuit Court of
Randolph County’s January 19, 2018, order terminating her parental rights to B.H.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”), G. Phillip Davis, filed a response on behalf of the child in support of the circuit
court’s order. On appeal, petitioner argues that the circuit court erred in denying her motion for a
post-dispositional improvement period and terminating her parental rights when less-restrictive
dispositional alternatives were available.

        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.

        On May 2, 2017, the DHHR filed an abuse and neglect petition against petitioner and the
father alleging that petitioner tested positive for buprenorphine, commonly referred to as
Suboxone, upon the delivery of B.H. The DHHR alleged that B.H. suffered severe withdrawal
symptoms including seizures, myoclonic jerks, loose stools, and sleeping less than two hours
after feeding. He was transferred to Ruby Memorial Hospital for further treatment. The petition
further alleged that, although petitioner had a prescription for Suboxone, she had a history of
substance abuse. The petition alleged that the child’s father was incarcerated on federal charges
related to manufacturing methamphetamine.

       The petition also alleged that abuse and neglect proceedings involving petitioner’s three
older children were initiated in 2012. During these proceedings, one of petitioner’s children was
born addicted to cocaine and Suboxone, she was addicted to multiple substances, and abused
                                                            
              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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substances in front of the children. Her parental rights to the three children were involuntarily
terminated. In the instant petition, the DHHR alleged that it did not appear that the circumstances
of abuse and neglect had changed since the filing of the petition in 2012. Petitioner waived the
preliminary hearing.

       On September 25, 2017, the circuit court held an adjudicatory hearing at which the father
was adjudicated as an abusing parent. Petitioner requested a continuance, which the circuit court
granted. Thereafter, on November 28, 2017, petitioner stipulated to the allegations of abuse and
neglect and was adjudicated as an abusing parent.

        On January 4, 2018, the circuit court held a dispositional hearing at which petitioner
moved for a post-dispositional improvement period, which the circuit court ultimately denied.
Both the guardian and the DHHR objected to petitioner’s motion and moved for termination of
petitioner’s parental rights. A nurse from Davis Medical Center testified that petitioner and the
child both tested positive for buprenorphine at the child’s birth and that the child suffered from
extreme withdrawal symptoms, including seizures. Next, the DHHR presented evidence that in
June of 2017 and July 2017, petitioner repeatedly tested positive for buprenorphine, but failed to
bring her prescription for Suboxone multiple times. The director also testified that, in addition to
testing positive for buprenorphine, petitioner also tested positive for methamphetamine in August
of 2017. According to the director, petitioner admitted to snorting methamphetamine three days
prior to that drug screen. Petitioner continued to test positive for buprenorphine through
December of 2017, but again, many times she did not present her prescription.

        Next, a caseworker testified regarding the parents’ visits with the child. She testified that
petitioner consistently visited the child in June of 2017 and the first part of July of 2017 and that
petitioner arrived on time for visits when the father was in substance abuse treatment and
transportation was arranged by the caseworker. However, according to the caseworker, after the
father was released from incarceration, and when he was not in treatment, he and petitioner
would often arrive late to visits or miss them altogether. The caseworker also explained that
when the father attended visits with petitioner, she was more focused on him than she was on the
child. The DHHR further presented testimony regarding petitioner’s prior abuse and neglect case
wherein she abused substances and gave birth to one child who was born addicted to substances.
Petitioner was also using Suboxone throughout the prior proceedings. According to the DHHR,
petitioner failed to successfully complete an improvement period and her parental rights to her
three children were involuntarily terminated.

         Petitioner testified regarding her addiction to substances and explained that she traveled
to Maryland to see a doctor and obtain her prescription for Suboxone. Petitioner denied any
illegal use of substances. She also explained that she and the father missed visits in December of
2017 because there was a miscommunication and a change in the caseworker that supervised the
visits. Petitioner also testified that she allowed multiple individuals to stay in her home and that
they brought drugs and needles into the home.

       Following the parties’ testimony, the circuit court noted that petitioner used Suboxone
throughout the proceedings and the prior abuse and neglect proceedings, but never attempted to
complete a long-term rehabilitation program or stop her use of Suboxone. The circuit court also

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noted that the evidence demonstrated that petitioner’s circumstances had not changed since her
prior termination. The circuit court found that there was no reasonable likelihood that petitioner
could correct the conditions of abuse and neglect, and specifically, the parents “don’t want to do
what is in the child’s best interest as to drug use” and lifestyle. In light of the child’s young age,
the circuit court found it was in his best interests for petitioner’s and the father’s parental rights
to be terminated. Ultimately, the circuit court terminated petitioner’s parental rights in its
January 19, 2018, order.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
              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.

        First, petitioner argues that the circuit court erred in denying her motion for a post-
dispositional improvement period. In support of this argument, petitioner asserts that her actions
throughout the proceedings demonstrated by clear and convincing evidence that she would fully
comply with a post-dispositional improvement period. We do not find her arguments persuasive.

        West Virginia Code § 49-4-604(b)(7)(C) states that “[f]or purposes of the court’s
consideration of the disposition custody of a child pursuant to this subsection, the [DHHR] is not
required to make reasonable efforts to preserve the family if the court determines . . . [t]he
parental rights of the parent to another child have been terminated involuntarily[.]” Additionally,
“West Virginia law allows the circuit court discretion in deciding whether to grant a parent an
improvement period.” In re M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015). Despite the
fact that the DHHR was not required to provide services to petitioner in these proceedings,
petitioner received drug screening services and visitation with the child. While petitioner argues
that she consistently tested negative for substances other than those prescribed to her, the record
shows that petitioner repeatedly failed to provide her prescription for Suboxone at drug screens.
Further, petitioner admitted to snorting methamphetamine during the proceedings.

                                                            
              2
       The father’s parental rights were also terminated. According to the parties, the
permanency plan for the child is adoption by his maternal grandmother.
                                                               3

 
        Also, petitioner argues that she attended “the vast majority of her scheduled visits” and
that her “active and consistent” visitation showed that she was likely to participate in an
improvement period. However, according to the record, petitioner was often late to visits or
missed them completely, especially when the father was with her. Accordingly, we find no error
in the circuit court’s denial of petitioner’s motion for a post-dispositional improvement period.

        Further, we find no error in the circuit court’s termination of petitioner’s parental rights.
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 children’s
welfare. West Virginia Code § 49-4-604(c)(3) provides that no reasonable likelihood that the
conditions of abuse or neglect can be substantially corrected exists when “[t]he abusing parent . .
. ha[s] not responded to or followed through with a reasonable family case plan or other
rehabilitative efforts[.]”

        As discussed above, although the DHHR was not required to provide services, petitioner
was afforded drug screening services and visitation. However, during the proceedings, petitioner
admittedly snorted methamphetamine, failed to provide her prescriptions for Suboxone at
numerous drug screens, was often late for visits, and missed visits with the child. Further, despite
the fact that her use of Suboxone caused the child severe withdrawal symptoms after his birth,
petitioner did not take any steps to cease the use of this substance. While petitioner argues that
the circuit court erred in terminating her parental rights instead of employing a less-restrictive
dispositional alternative such as guardianship with the maternal grandmother or participation in
an improvement period, we have held that

               “[t]ermination 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). Based on the evidence
presented below, the circuit court found no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future, and that due to the
child’s young age, termination of petitioner’s parental rights was in the child’s best interests.
Accordingly, we find no error in the circuit court’s termination of petitioner’s parental rights.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 19, 2018, dispositional order is hereby affirmed.


                                                                                          Affirmed.



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ISSUED: June 11, 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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