                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


                                                                                       FILED
In re: A.U.
                                                                                    June 19, 2017
                                                                                  RORY L. PERRY II, CLERK
No. 17-0198 (Taylor County 15-JA-26)                                            SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA



                                MEMORANDUM DECISION
        Petitioner Mother F.H., by counsel Gregory Michael, appeals the Circuit Court of Taylor
County’s January 25, 2017, order terminating her parental rights to A.U.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed
responses in support of the circuit court’s order. The guardian ad litem (“guardian”), Mary S.
Nelson, 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 terminating her parental rights to the child
without employing a less-restrictive dispositional alternative.

        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 June of 2015, the DHHR filed an abuse and neglect petition against petitioner alleging
that she abused controlled substances including methamphetamine while pregnant with the child;
failed to follow medical advice that she remain at Ruby Hospital (“hospital”) during her high-
risk pregnancy; failed to provide the child with adequate prenatal care; and permitted the child’s
father to place the child in danger when he “tossed the baby” to a nurse and “pulled a knife” at
the hospital before being escorted off the premises by security officers.2 Petitioner waived her
right to a preliminary hearing, and the child remained in the temporary custody of the DHHR
pending further proceedings.

        In early July of 2015, petitioner filed an answer to the petition in which she admitted to
the allegations and moved for a post-adjudicatory improvement period. Thereafter, petitioner


       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).
       2
           The abuse and neglect petition is not included in the appendix record.
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moved to continue the adjudicatory hearing scheduled for mid-July of 2015 citing the need for
additional discovery and other concerns. The circuit court granted her motion.

        In February of 2016, following substantial delay, the circuit court held an adjudicatory
hearing. At that hearing, petitioner stipulated to the allegations set forth in the petition. Because
the child’s father denied certain allegations against him regarding his conduct at the hospital, the
circuit court continued the adjudicatory hearing to allow the DHHR to present evidence against
the child’s father.

        In April of 2016, the circuit court held a second adjudicatory hearing. At that hearing,
hospital staff testified about the conduct of both parents as alleged in the petition. Evidence was
also presented that neither parent “had any capabilities to meet the requirements for this infant’s
care, or ability to parent” and that neither parent could provide for the “infant[’s] needs of
survival, taking care of [her].” At the conclusion of the hearing, based on the stipulations and the
evidence, the circuit court found that the parents were abusing parents. The circuit court further
found that petitioner lacked the capacity to parent the child safely. For that reason, the circuit
court denied petitioner’s motion for an improvement period.

        In July of 2016, the circuit court held a dispositional hearing. At that hearing, the DHHR
and guardian recommended that petitioner’s parental rights to the child be terminated. No party
presented, or requested to present, any witnesses. Following proffers and argument, the circuit
court found that petitioner’s deficiencies could not be substantially corrected in the near future
and that termination of petitioner’s parental rights to the child was the proper disposition.3 By
order entered on January 25, 2017, the circuit court terminated petitioner’s parental rights to the
child.4 This appeal followed.

       The Court has previously established the following standard of review:

       3
         The parental rights of both parents were terminated below. According to the guardian,
the child is permanently placed with her maternal grandmother, where she has resided since
release from the hospital following her birth. The child’s permanency plan is adoption by her
maternal grandmother.
       4
         In several instances, the delays in this case were substantial. More than six months
passed between the continuation of the first adjudicatory hearing in July of 2015 and the second
adjudicatory hearing in February of 2016. Presumably, the parties were engaged in discovery
during that time. Thereafter, a period of approximately three months passed between the third
adjudicatory hearing in April of 2016 and the dispositional hearing in July of 2016, and
approximately five months passed between the dispositional hearing in July of 2016, and the
entry of the dispositional order in January of 2017. The parties do not discuss these delays.
Further, the reasons for these delays are unclear from the record on appeal, and no assignment of
error is presented on the issue. As such, we do not address the delay issue further in this
memorandum decision, except to note that “[c]hild abuse and neglect cases must be recognized
as being among the highest priority for the courts’ attention. Unjustified procedural delays wreak
havoc on a child's development, stability and security.” Syl. Pt. 1, in part, In the Interest of
Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

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               “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
to the child without employing a less-restrictive dispositional alternative. West Virginia Code §
49-4-604(b) requires courts to “give precedence” to the least-restrictive dispositional alternative.
A less-restrictive dispositional alternative than termination is temporary commitment of a child
to the state or another qualified person. W.Va. Code § 49-4-604(b)(5).

        Petitioner asserts that the circuit court “should have found [she] was currently unable to
provide adequately for [the child] and commit her temporarily to the . . . state department with
placement to continue with the maternal grandmother,” which would have been less restrictive
than termination. In response, the DHHR and guardian argue that where, as here, there was no
reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in
the near future, termination is proper without the use of less-restrictive dispositional alternatives.
We agree.

        We have held that “[t]ermination . . . may be employed without the use of intervening
less[-]restrictive alternatives when it is found that there is no reasonable likelihood . . . that
conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 7, in part, In re Katie S.,
198 W.Va. 79, 479 S.E.2d 589 (1996). 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[.]”

        In this case, petitioner is correct that “there was no dispute that the [p]etitioner was
working on the terms of her Family Case Plan[.]” However, notwithstanding her “work” with
certain services under the terms of her family case plan, the circuit court found that petitioner did
not respond to those services and that there were no services to which she could respond in the
near future to substantially correct the conditions of abuse and neglect. For that reason, the
circuit court determined that there was no reasonable likelihood that petitioner could
substantially correct the conditions of neglect and abuse in the near future and that it was not in

                                                  3

the child’s best interests to continue in petitioner’s home. As we have often noted, West Virginia
Code § 49-4-604(b)(6) provides that circuit courts are directed to terminate parental rights upon
such findings. Therefore, we find no merit to petitioner’s argument that termination was not the
least-restrictive dispositional alternative.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 25, 2017, order is hereby affirmed.


                                                                                        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




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