                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS


In re L.G. and D.G.                                                                     FILED
                                                                                      April 6, 2020
No. 19-0616 (Greenbrier County 18-JA-60 and 18-JA-61)                              EDYTHE NASH GAISER, CLERK
                                                                                   SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA




                               MEMORANDUM DECISION



        Petitioner Mother B.B., by counsel Martha J. Fleshman, appeals the Circuit Court of
Greenbrier County’s June 5, 2019, order denying her request for an improvement period and
terminating her parental rights to L.G. and custodial rights to D.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 and a supplemental appendix. The guardian ad litem, Kristopher R.
Faerber, filed a response on behalf of the children in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in denying her request for an improvement period and
terminating her parental and custodial rights without imposing 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 November of 2018, the DHHR filed an abuse and neglect petition against petitioner after
she tested positive for amphetamine and opiates upon the birth of L.G. The petition further alleged
that L.G. was born drug-exposed. 2 In spite of the positive drug screens, petitioner denied illegal
drug use or substance abuse issues. An initial preliminary hearing was convened in November of


       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 petition alleged the child’s umbilical cord tested positive for amphetamine,
methamphetamine, opiates, morphine, and codeine.
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2018, where the court ratified the children’s removal from petitioner’s custody. The hearing was
then continued and rescheduled for December of 2018, as petitioner retained new counsel and
court-appointed counsel was dismissed. Prior to the continued preliminary hearing, the DHHR
asserted that it tried to schedule services with petitioner, but that no contact or communication
occurred between petitioner and the provider despite “numerous attempts” which included
“[twenty-eight] messages; [and] four face-to-face attempts to the sister’s home,” where petitioner
was residing. During the two-month period, petitioner also failed to complete any drug screens
and was therefore barred from contact with infant L.G. In December of 2018, the circuit court held
the continued preliminary hearing and ratified the children’s removal from petitioner’s custody. 3

        In February of 2019, the circuit court held an adjudicatory hearing. Petitioner did not attend
but was represented by counsel. The guardian ad litem moved the circuit court for an order
prohibiting unsupervised visitation between petitioner and the children. The circuit court granted
the motion, citing “allegations of substance abuse and improper contact as risks to the [c]hildren
that necessitate a prohibition of unsupervised visitation.” The hearing was then continued “as
counsel [for petitioner] ha[d] recently been appointed.” At the continued hearing, petitioner
appeared in person and stipulated that L.G. tested positive for controlled substances at birth and
required treatment for neonatal abstinence syndrome. The circuit court accepted petitioner’s
stipulation and adjudicated her as an abusing and neglecting parent for both children. Thereafter,
petitioner filed for a post-adjudicatory improvement period.

        In April of 2019, the circuit court held a hearing on petitioner’s motion for an improvement
period. Prior to the hearing, the DHHR and a Court Appointed Special Advocate (“CASA”)
submitted written reports which opposed petitioner’s motion for an improvement period because
she missed supervised visits with infant L.G. and tested positive on some drug screens while
avoiding other screens altogether. The CASA reported that petitioner took only three of the eight
required drug screens from January through March of 2019. Petitioner also “altered” a document
from the Day Report Center, falsely claiming negative results for at least one mandated drug
screen. At the hearing, petitioner requested another continuance seeking “additional information
regarding L.G.’s treatment in the hospital after birth” so petitioner could attempt to prove that
“some of the positive drug screens in her case were false positives.” Petitioner’s motion was
denied. The circuit court did, however, allow petitioner to renew her motion for a post-adjudicatory
improvement period at a final dispositional hearing.

        The circuit court held a final dispositional hearing in May of 2019. During the hearing,
petitioner indicated that “after struggling mightily,” she was “willing to acknowledge . . . that she
has a substance abuse problem.” In the course of her testimony, however, petitioner still denied
she deliberately abused amphetamine or opiates, admitting only under questioning that “there is
something in them” that caused her to abuse these substances. Also, at the hearing, petitioner
presented her motion for a post-adjudicatory improvement period, but the circuit court denied the
request. The circuit court considered petitioner’s substance abuse; lack of acknowledgment of the
abuse; failure to participate in services offered; and inability to care for the children. Ultimately,
the circuit court concluded that there was no reasonable likelihood that the conditions of abuse and
neglect could be substantially corrected in the near future and that it was in the best interest of the


       3
           Petitioner did not appear in person for the hearing but was represented by counsel.
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children to terminate petitioner’s parental and custodial rights. Accordingly, the court terminated
petitioner’s parental and custodial rights by its June 5, 2019, order. 4 It is from this dispositional
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).

       On appeal, petitioner alleges that the circuit court erred in denying her motion for a post-
adjudicatory improvement period because she sought to improve through treatment of her
substance abuse problem, including inpatient rehabilitation. Petitioner also argues that she
“acknowledged she has a substance abuse problem” during her dispositional hearing testimony
and indicated that she would participate in services. In light of this, she argues that the circuit court
should have granted her a post-adjudicatory improvement period. We disagree.

        Notably, petitioner does not dispute that she missed several drug screens and supervised
visits with L.G., including a two-month period where petitioner failed to provide a negative screen
or submit to screens. While it may be true that petitioner has previously acknowledged struggling
with substance abuse, she has at other times flatly denied such abuse, even when confronted with
positive drug screens and other evidence. Despite this evidence, petitioner asserts she was “willing
to receive treatment,” and that she would have complied with all of the terms and conditions of an
improvement period.

       West Virginia Code § 49-4-610(2)(B) provides that the circuit court may grant a parent a
post-adjudicatory improvement period when the parent “demonstrates, by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period.” “This Court
has explained that ‘an improvement period in the context of abuse and neglect proceedings is
viewed as an opportunity for the miscreant parent to modify his/her behavior so as to correct the


        4
        Petitioner is not the mother of D.G. D.G.’s nonabusing mother retains her parental rights
pursuant to a shared parenting plan with D.G.’s father entered in a prior family court proceeding.
Both L.G. and D.G. were placed in the custody of the nonabusing father with a permanency plan
of remaining in his care.
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conditions of abuse and/or neglect with which he/she has been charged.’” In re Kaitlyn P., 225 W.
Va. 123, 126, 690 S.E.2d 131, 134 (2010) (citation omitted). However, the circuit court has
discretion to deny an improvement period when no improvement is likely. In re Tonjia M., 212 W.
Va. 443, 448, 573 S.E.2d 354, 359 (2002). Further, we have previously held that

       [i]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
       of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator
       of said abuse and neglect, results in making the problem untreatable and in making
       an improvement period an exercise in futility at the child’s expense.

In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted). Petitioner
disputes the circuit court’s finding that she failed to acknowledge her substance abuse because she
testified, “obviously there’s something in the medicine that I can’t stop taking.” Petitioner also
takes issue with the refusal of the circuit court and DHHR “to acknowledge that any of the positive
drug screens could have been the result of prescription medications [petitioner] was taking or that
any could have been false positives caused from the combination of multiple, legal substances”
prescribed to her. However, even if some of petitioner’s drug screens were false positives, a point
the DHHR disputes, petitioner admitted that not “all of the things that are showing up [on drug
screens] could be false positives.” As such, it is clear that petitioner failed to acknowledge the full
scope of her substance abuse issues below. Given petitioner’s failure to fully acknowledge her
drug addiction and how her actions constituted abusive and neglectful behavior, the granting of an
improvement period would have been futile. Accordingly, we find no error in the circuit court’s
denial of her motion.

        Next, petitioner alleges the circuit court should have imposed a less-restrictive
dispositional alternative pursuant to West Virginia Code § 49-4-604(b)(5). However, the same
evidence set forth above supports the termination of petitioner’s parental and custodial rights. West
Virginia Code § 49-4-604(b)(6) permits a circuit court to terminate parental and custodial 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 welfare of the
children. Additionally, under West Virginia Code § 49-4-604(c)(1), a situation in which there is
no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected
includes one in which

       [t]he abusing parent . . . [has] habitually abused or [is] addicted to alcohol,
       controlled substances or drugs, to the extent that proper parenting skills have been
       seriously impaired and the person or persons have not responded to or followed
       through the recommended and appropriate treatment which could have improved
       the capacity for adequate parental functioning.

        With these parameters in mind, it is clear that the record supports the circuit court’s finding
that there was no reasonable likelihood petitioner could substantially correct the conditions of
neglect, given her untreated substance abuse issues. While it is true that petitioner may be able to
undergo some treatment in the future for her substance abuse, such possible improvement was
based on pure speculation. Indeed, petitioner blamed false positive laboratory results and denied a

                                                  4
substance abuse problem on several occasions. Further, petitioner often failed to avail herself of
the DHHR’s services, missing several drug screens and testing positive on others. This resulted in
her missing several visitations with the children. While petitioner also takes issue with the
timeframe from adjudication to termination, arguing that she “should have been given additional
time and an opportunity to demonstrate that she could correct the conditions” of abuse and neglect,
we have previously held that “[c]ourts are not required to exhaust every speculative possibility of
parental improvement . . . where it appears that the welfare of the child will be seriously
threatened.” Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4, in part (citation omitted).

        Finally, petitioner argues that the DHHR provided no “remedial and reunification services”
because the DHHR opposed petitioner’s motion for an improvement period. The DHHR, however,
provided petitioner with many services. Shortly after the abuse and neglect petition was filed in
November of 2018, a service provider attempted to establish contact with petitioner but was unable
to do so despite the provider’s “[twenty-eight] messages; [and] four face-to-face attempts.” During
the two-month period of November and December 2018, petitioner failed to schedule or complete
any drug screens and was thus barred from contact with infant L.G. Petitioner then continued to
miss or fail drug screens throughout the remainder of the proceedings. While petitioner argues that
“the [DHHR] could have recommended that [petitioner] be granted an improvement period,” the
burden for granting an improvement period falls upon petitioner and the DHHR’s opposition to
petitioner’s motion for an improvement period is not a failure to provide services. Accordingly,
we find no error in the circuit court’s finding that there was no reasonable likelihood the conditions
of abuse and neglect could have been substantially corrected in the near future and that termination
was necessary for the children’s welfare.

        While petitioner argues that the circuit court should have employed a less-restrictive
dispositional alternative, we have held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [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 [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). Accordingly, we find no error
in the decision of the circuit court, and its June 5, 2019, order is hereby affirmed.



                                                                                           Affirmed.




ISSUED: April 6, 2020

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CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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