                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                    FILED
In Re: J.W., K.W., & J.W.                                                     September 22, 2014
                                                                              RORY L. PERRY II, CLERK
No. 14-0118 (Mercer County 11-JA-218, 11-JA-219 & 11-JA-220)                SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA




                              MEMORANDUM DECISION
       Petitioner Mother, by counsel Thomas Fuda, appeals the Circuit Court of Mercer County’s
December 12, 2013, order terminating her parental, custodial, and guardianship rights to her nine­
year-old son J.W.-1, her seven-year-old daughter K.W., and her four-year-old son J.W.-2.1 The
guardian ad litem for the children, Michael Cooke, filed a response supporting the circuit court’s
order. The Department of Health and Human Resources (“DHHR”), by its attorney Angela
Walters, filed a summary response and a supplemental appendix in support of the circuit court
order. On appeal, Petitioner Mother argues that the circuit court erred in terminating her parental,
custodial, and guardianship rights because she substantially completed her improvement period.

        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 November of 2011, the DHHR filed an abuse and neglect petition against Petitioner
Mother, alleging that she failed to provide for the physical, social, and emotional needs of her
children. Specifically, the DHHR alleged that Petitioner Mother spent the family’s financial
resources on illegal drugs and that her substance abuse impaired her ability to properly care for
her children. The petition also alleged that Petitioner Mother failed to comply with prior services
to treat her drug addiction.

       In March of 2012, the circuit court held an adjudicatory hearing during which the DHHR
presented testimony regarding Petitioner Mother’s drug addiction and domestic violence that
occurred in the home. After considering the testimony, the circuit court adjudicated Petitioner
Mother as an abusive and neglectful parent. Shortly thereafter, the circuit court granted Petitioner
Mother a post-adjudicatory improvement period to address the underlying issues of abuse and
neglect.


       1
         Because two of the children in this case have the same initials, we have distinguished
each of them using numbers 1 and 2 after their initials.
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        During the pendency of the proceedings, the circuit court held several review hearings
during which the DHHR presented testimony that Petitioner Mother was compliant with the terms
of her improvement period. The circuit court granted Petitioner Mother a dispositional
improvement period to address additional housing issues by order entered on January 7, 2013.
Prior to the dispositional hearing, the DHHR submitted a court summary indicating that Petitioner
Mother stopped participating in services and refused to submit to a drug screen on September 19,
2013.

        During the dispositional hearing, the circuit court heard testimony consistent with the
DHHR’s summary. Importantly, Petitioner Mother testified that she started using illegal
substances again. Ultimately, the circuit court terminated Petitioner Mother’s parental, custodial,
and guardianship rights because she did not comply with her improvement period and failed to
accept responsibility for the conditions of abuse and neglect. It is from this dispositional order
that Petitioner Mother now 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’s termination of Petitioner Mother’s parental, custodial, and
guardianship rights. Petitioner Mother argues that she substantially complied with her
improvement period, and that the circuit court failed to employ the least restrictive alternative
pursuant to West Virginia Code § 49-6-5(a) and our holding in syllabus point one of In re R.J.M.,
164 W.Va. 496, 266 S.E.2d 114 (1980).2 However, Petitioner Mother’s argument ignores our

       2
           This Court previously held that

                         [a]s a general rule the least restrictive alternative regarding parental
                 rights to custody of a child under W.Va.Code, 49-6-5 (1977) will be
                 employed; however, courts are not required to exhaust every speculative
                 possibility of parental improvement before terminating parental rights
                 where it appears that the welfare of the child will be seriously threatened,
                                                         2
further directions regarding termination upon findings that there is no reasonable likelihood that
the conditions of abuse and neglect can be substantially corrected in the near future.

       This Court has repeatedly stated 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 [1977] 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) [1977] that conditions of neglect or abuse can be
       substantially corrected.” Syl. pt. 2, In Re: R.J.M., 164 W.Va. 496, 266 S.E.2d 114
       (1980).

Syl. Pt. 2, In re Dejah P., 216 W.Va. 514, 607 S.E.2d 843 (2004). In this case, the circuit court
found that there was no reasonable likelihood that Petitioner Mother could substantially correct
the conditions of abuse and neglect in the near future. The record shows that while Petitioner
Mother initially complied with the terms of her post-adjudicatory and dispositional improvement
periods, she stopped participating in services and refused a drug screen on September 19, 2013.
Petitioner Mother also testified that she relapsed and began using illegal substances again.
Further, the circuit court found that Petitioner Mother had a serious drug problem. Importantly,
even if Petitioner Mother had fully complied with the terms and conditions of her improvement
periods, that, standing alone, would be insufficient to achieve reunification with her children. As
we have recently held, “[i]n making the final disposition in a child abuse and neglect proceeding,
the level of a parent’s compliance with the terms and conditions of an improvement period is just
one factor to be considered. The controlling standard that governs any dispositional decision
remains the best interests of the child.” Syl. Pt. 4, In re: B.H. and S.S., 233 W.Va. 57, 754 S.E.2d
743 (2014).

        Pursuant to West Virginia Code § 49-6-5(b)(3), a situation in which there is no reasonable
likelihood that the parent can substantially correct the conditions of abuse and neglect includes
one where “[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 stated above, the evidence shows that Petitioner Mother failed to
respond to services designed to remedy the conditions of abuse and neglect. Pursuant to West
Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon these
findings.


               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 re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

                                                     3
       For the foregoing reasons, we affirm.

                                                     Affirmed.


ISSUED: September 22, 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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