                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                   FILED
In Re: S.M., T.M., and E.M.                                                       April 28, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
No. 13-1096 (Clay County 12-JA-58, 12-JA-59, and 12-JA-60)

                              MEMORANDUM DECISION
        Petitioner Father filed this appeal by his counsel, Barbara Harmon-Schamberger, from an
order entered October 25, 2013, in the Circuit Court of Clay County, which terminated his
parental rights to seven-year-old S.M., eight-year-old T.M., and nine-year-old E.M. The guardian
ad litem for the children, Kevin W. Hughart, filed a response in support of the circuit court’s
order. The Department of Health and Human Resources (“DHHR”), by its attorney, Angela
Alexander Walters, also filed a response in support of the circuit court’s order. Petitioner argues
that the circuit court abused its discretion when it terminated his 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 April of 2012, the DHHR filed an abuse and neglect petition against the children’s
parents. The petition alleged that the parents abused controlled substances while the children
were in their care and custody. For example, the petition cited to instances in which the parents
and another adult crushed and snorted controlled substances in front of the children. The petition
further alleged that the parents failed to provide a fit and suitable home for the children and that
their drug abuse impaired their parenting skills to a degree that posed an imminent risk to the
children’s health, safety, and welfare.

        At the adjudicatory hearing in May of 2012, both parents stipulated to the abuse and
neglect of their children through their drug use and through their failure to provide a fit and
suitable household. The circuit court granted the parents a post-adjudicatory improvement period
with orders to participate in any and all provided services, including psychological evaluations,
and to remain free of drugs and alcohol. During the course of this case, the parents’ drug screens
tested negative until the later part of 2012. In June of 2012, the mother tested positive for
methamphetamines and in November, petitioner tested positive for cocaine, amphetamines, and
methamphetamines. The circuit court revoked the parents’ post-adjudicatory improvement period
in January of 2013, but granted them a one-year rehabilitation period with orders for petitioner to
attend in-patient rehabilitation treatment and for the mother to complete a support program for
substance abuse issues. The circuit court also ordered that the parents remain free of drugs and
alcohol and granted them supervised visitation with their children on the condition that their
random drug tests were clean.

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        Despite the requirements of their rehabilitation period, both parents failed to comply with
the circuit court’s orders. The DHHR’s motion to terminate the parents’ parental rights alleged
that the mother violated an order to refrain from any contact with petitioner and petitioner
continued to test positive for drugs. It also stated that after petitioner admitted himself to
treatment for one day, he left voluntarily, stating “CPS [Child Protective Services] was supposed
to give my wife the kids back if I came to treatment and they didn’t so there is no reason to be
here.” At the dispositional hearing in August of 2013, the family’s CPS worker testified that
petitioner had not participated in services since April and that his application to re-submit to a
drug rehabilitation program was denied because he had not acknowledged his drug problem. The
children’s guardian ad litem testified that at a visit he made to the home in July, he observed an
insufficient amount of food in the home and that petitioner and the mother were consuming beer
together. In October of 2013, the circuit court entered an order terminating both parents’
parental rights. Petitioner now files this appeal.

       This 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).

        Petitioner argues that the circuit court abused its discretion in terminating his parental
rights because (1) the circuit court should have considered another remedy in light of petitioner’s
mild neurocognitive disorder that made it more difficult for him to fully comply with the circuit
court’s orders and (2) the circuit court did not consider the bond between petitioner and his
children.

       Upon our review of the record, we find no error by the circuit court. “‘Although parents
have substantial rights that must be protected, the primary goal in cases involving abuse and
neglect, as in all family law matters, must be the health and welfare of the children.’ Syl. Pt. 3, In
re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W.Va. 44,
743 S.E.2d 352 (2013). Under West Virginia Code § 49-6-5(b)(3), circumstances in which a
parent fails to respond to rehabilitative efforts are considered those in which there is no
reasonable likelihood that the conditions of neglect or abuse can be substantially corrected. The


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record reveals that, despite opportunities to complete an improvement period towards
reunification, petitioner failed to avail himself of services and rehabilitation. He continued to test
positive for drugs and failed to treat or even admit to his drug problem. This evidence was
sufficient to support the circuit court’s findings and conclusions that there was no reasonable
likelihood to believe that conditions of abuse and neglect could be substantially corrected in the
near future, and that termination was necessary for the children’s welfare. Pursuant to West
Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon such
findings.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: April 28, 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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