                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In re: L.C.
                                                                                FILED
                                                                           November 22, 2017
No. 17-0639 (Ohio County 16-CJA-108)                                         EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Mother K.K., by counsel Gerasimos Sklavounakis, appeals the Circuit Court of
Ohio County’s June 22, 2017, order terminating her parental rights to L.C.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Joseph J.
Moses, 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 failing to grant her a post-dispositional
improvement period and terminating her parental rights.

        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 August of 2016, the DHHR filed an abuse and neglect petition against petitioner
alleging that the child was born affected by drugs due to petitioner’s use of Subutex. After the
child was born, the DHHR opened a case and monitored petitioner and the child. The abuse and
neglect petition also alleged that petitioner had a history of drug use and recent failed drug
screens. The petition further alleged that in July of 2016, petitioner was arrested and charged
with child endangerment and related drug offenses, after she took the child with her to buy drugs
and left him in the care of her drug dealer while she ate at a restaurant.

        In October of 2016, the circuit court held an adjudicatory hearing. Petitioner did not
appear at the hearing, but was represented by counsel. After hearing evidence from the DHHR,
the circuit court left the record open for ten days in order for petitioner to present testimony or
make a stipulation as to the allegations in the petition. However, petitioner did not present any
such testimony or stipulation. In November of 2016, the circuit court entered an order

       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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adjudicating petitioner as an abusing parent due to the fact that her drug abuse negatively
affected her parenting skills and judgment. The circuit court specifically found that petitioner had
an extensive history of abuse of heroin and other drugs, as well as untreated mental health issues.
The circuit court further found that the child was born affected by drugs and that petitioner
exposed him to danger by bringing him to a drug transaction and leaving him in the care of a
drug dealer. In January of 2017, petitioner filed a motion for a post-adjudicatory improvement
period, which the circuit court granted.

        In April of 2017, the circuit court held a status hearing regarding petitioner’s post­
adjudicatory improvement period. Petitioner did not appear for this hearing, and no good cause
was offered for her absence; however, she was represented by counsel. According to the DHHR,
petitioner was not compliant with the terms of the improvement period in that she continued to
abuse drugs, failed to comply with treatment or attend drug screens, and failed to cooperate and
maintain contact with the DHHR. Further, treatment records showed that petitioner admitted to
having been shot during a drug deal and having prostituted herself for drugs during the
proceedings. Additionally, petitioner admitted to treatment staff that she was currently using
heroin and cocaine, which she also screened positive for, and injection marks were found on her
chest. Finally, it was reported that petitioner started, but failed to complete three different
treatment programs. At the conclusion of the status hearing, the circuit court suspended
petitioner’s post-adjudicatory improvement period and scheduled the matter for disposition.

         In May of 2017, the circuit court held a dispositional hearing at which petitioner moved
for the circuit court to continue her post-adjudicatory improvement period. The DHHR presented
evidence that since the April of 2017 status hearing, petitioner continued to test positive for
drugs and, despite multiple attempts, failed to complete any treatment program. Petitioner
testified that she was controlling her addiction and was enrolled in a drug treatment program in
Wheeling, West Virginia. After the hearing, the circuit court allowed the record to remain open
in order for petitioner’s treatment records could be submitted for consideration. The records
indicated petitioner was receiving treatment, and also indicated that she continued to abuse
drugs. The circuit court found no reasonable likelihood that petitioner could substantially correct
the conditions of abuse and neglect in the near future and that the best interests of the child
require termination of petitioner’s parental rights. Ultimately, the circuit court terminated
petitioner’s post-adjudicatory improvement period as well as her parental rights in its June 22,
2017, order.2 It is from the 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

       2
        In addition to the termination of petitioner’s parental rights, the parental rights of the
father of L.C. were also terminated below. According to the guardian, the child is currently
placed with his maternal grandparents with a permanency plan of adoption in that home.

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       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 findings below.

        First, petitioner argues that the circuit court erred in failing to grant her a post-
dispositional improvement period.3 West Virginia Code § 49-4-610(3)(B) provides that in order
to be granted a post-dispositional improvement period, the parent must “demonstrate[], by clear
and convincing evidence, that the [parent] is likely to fully participate in the improvement
period[.]” Additionally, under West Virginia Code § 49-4-610(3)(D), if a parent has experienced
a substantial change in circumstances since the initial improvement period, the parent “shall
demonstrate that due to that change in circumstances, the [parent] is likely to fully participate in
the improvement period.”

         Here, the record on appeal shows that petitioner was not compliant with her post­
adjudicatory improvement period. Throughout her improvement period, petitioner continued to
abuse drugs, failed to comply with treatment, failed to attend drug screens, and failed to
cooperate and maintain contact with the DHHR. Further, during her improvement period,
petitioner started, but failed to complete three different treatment programs. Petitioner further
argues that her enrollment in a drug treatment program beginning in April of 2017 was a
“significant change in circumstances to warrant an additional improvement period.” However,
the records from the treatment facility indicate that petitioner continued to abuse drugs.
Petitioner did not offer any evidence to demonstrate that her enrollment in this most recent drug
treatment program would cause her to be likely to fully participate in a post-dispositional
improvement period. Based on this evidence, petitioner failed to fully comply with the terms of
her post-adjudicatory improvement period, failed to demonstrate by clear and convincing
evidence that she would be likely to fully participate in a post-dispositional improvement period,
and failed to demonstrate that a change in circumstances would cause her to be likely to fully
participate in a post-dispositional improvement period. Therefore, the circuit court did not err in
failing to grant petitioner a post-dispositional improvement period and she is entitled to no relief
in this regard.

        Petitioner also argues that the circuit court erred in terminating her parental rights.
Petitioner asserts that she was addressing her drug addiction issues and was engaged in an

       3
        Petitioner’s assignment of error states that the circuit court erred in terminating her post­
adjudicatory improvement period. However, her argument in support of this assignment of error
only addresses the circuit court’s failure to grant her a post-dispositional improvement period.
Accordingly, we will address only the latter argument on appeal.

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effective drug treatment program in a drug treatment program in Wheeling, West Virginia, and
therefore, her parental rights should be reinstated. 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 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, petitioner has a history of drug abuse, continued to abuse drugs
throughout her improvement period and when she was in treatment, and did not comply with the
other terms of the improvement period. Petitioner failed to complete any drug treatment program
during the proceedings. The circuit court found no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future and that the best
interests of the child require termination of petitioner’s parental rights. As previously stated,
pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate parental
rights upon these findings. Further, we have previously 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). For these reasons, 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
June 22, 2017, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: November 22, 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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