                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

                                                                                FILED
In re: G.B.                                                                November 22, 2017
                                                                             EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
No. 17-0697 (Cabell County 16-JA-240)                                            OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Mother F.T., by counsel Cathy L. Greiner, appeals the Circuit Court of Cabell
County’s July 7, 2017, order terminating her parental rights to G.B.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. The guardian ad litem (“guardian”), Allison K. Huson,
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 terminating her parental rights based solely upon
her anticipated release date from incarceration.

        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 July of 2016, the DHHR filed an abuse and neglect petition against petitioner and the
father. The DHHR alleged that it received a referral from the Family Court of Cabell County
after the paternal aunt sought guardianship of the child while petitioner was incarcerated.
According to later admissions, petitioner was arrested for third offense shoplifting to support her
drug habit. Petitioner was initially placed on home incarceration, but was subsequently
incarcerated after testing positive for marijuana. Petitioner left the child with the aunt upon her
incarceration. However, an investigation revealed that the aunt had a history with Child
Protective Services (“CPS”), and, thus, was not an appropriate placement for the child. The
DHHR alleged that petitioner had been incarcerated since May of 2016 and that due to her
incarceration, she was unable to perform necessary parenting duties. The DHHR further alleged
that petitioner neglected the child by actively using drugs, which impaired her parenting skills,
and inflicted emotional abuse upon the child by exposing her to repeated instances of domestic
violence with the father.

       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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        In November of 2016, the circuit court held an adjudicatory hearing, during which
petitioner stipulated to her inability to care for the child due to her incarceration and to having a
problem with drugs. The circuit court granted petitioner a six-month post-adjudicatory
improvement period.

        In March of 2017, the circuit court held a review hearing concerning petitioner’s
improvement period, which had expired by its own terms. The circuit court heard the testimony
of a DHHR worker who testified that petitioner had been unable to comply with the terms of her
improvement period. According to the witness, petitioner was not to be released from
incarceration until June 24, 2017, nearly four months later, and that due to the time frame of the
case, the DHHR could not recommend continuing her improvement period. Petitioner testified
that she attempted to comply with her improvement plan by taking classes and that she
completed a drug program and parenting classes and attended “NA and AA meetings” while
incarcerated. Petitioner also testified that she called her daughter weekly and sent her cards.
During her testimony, petitioner requested additional time to comply with the terms of her
improvement period. After hearing evidence, the circuit court noted that the case had continued
along due to petitioner’s representations that there was a possibility that she would be released
early. However, as petitioner was not set to be released for another four months, the circuit court
found that, even were an extension of the improvement period granted, petitioner would be
“completely out of time frame requirements” upon her release from prison. Accordingly, the
circuit court terminated petitioner’s improvement period and set the case for disposition.

         In April of 2017, the circuit court held a dispositional hearing. The circuit court heard the
testimony of a DHHR worker who testified that petitioner’s family case plan was developed
“contingent upon her release from incarceration.” Petitioner then testified that her release date
would be in June of 2017. Petitioner once again requested additional time to remedy the situation
and stated that she had housing and employment in place in anticipation of her release. Petitioner
testified that she was a good mother and that, although she had made mistakes, she did not feel
that she should be “punished by having [her] daughter taken away . . . .” Petitioner admitted that
she had been incarcerated for approximately sixteen months of her nearly three-year-old child’s
life. Petitioner also admitted that she completed a drug rehabilitation program before violating
her home incarceration conditions by smoking marijuana, ultimately leading to her incarceration.

        The child’s paternal grandmother then testified that she had had placement of the child
since July of 2016 and that she would adopt the child in the event that petitioner’s parental rights
were terminated. The grandmother testified that the child had some developmental issues and
that she was to undergo testing for autism and a neurological examination. According to the
grandmother, the child received birth-to-three services. The grandmother was informed that,
although the child was nearly three years old, she “has the age of – of a fifteen month old.” The
grandmother further testified that the child got aggravated and had “fits” when talking to
petitioner on the phone. After hearing arguments from the parties, the circuit court found that
there was no reasonable likelihood that the conditions of abuse and/or neglect could be corrected
and that termination was necessary for the child’s welfare. Ultimately, the circuit court
terminated petitioner’s parental rights due to the fact that she had been incarcerated for an
extended period of time, the child had been out of petitioner’s care for at least half of her life,


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and because the child had special needs.2 It is from this July 7, 2017, 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 argues that the circuit court erred in terminating her parental rights
based solely on her anticipated release date from incarceration. Specifically, petitioner argues
that the findings made by the circuit court as a basis for terminating her parental rights were
entirely disingenuous as the circuit court terminated petitioner’s parental rights based on her
release date, which was eighty-one days away, yet did not enter the order for over ninety days.
We find petitioner’s argument to be without merit.

       We have previously held that

               [w]hen no factors and circumstances other than incarceration are raised at
       a disposition hearing in a child abuse and neglect proceeding with regard to a
       parent’s ability to remedy the condition of abuse and neglect in the near future,
       the circuit court shall evaluate whether the best interests of a child are served by
       terminating the rights of the biological parent in light of the evidence before it.
       This would necessarily include but not be limited to consideration of the nature of
       the offense for which the parent is incarcerated, the terms of the confinement, and
       the length of the incarceration in light of the abused or neglected child’s best
       interests and paramount need for permanency, security, stability and continuity.

Id. at 91, 717 S.E.2d at 875, Syl. Pt. 3. First, despite petitioner’s argument to the contrary, the
record clearly demonstrates that the circuit court relied upon several factors in addition to her
incarceration. The circuit court considered the fact that the child had been out of petitioner’s care
       2
        The parents’ parental rights to the child were terminated below. According to the
DHHR, the permanency plan for the child is to remain in the home of her paternal grandmother
with a goal of adoption in that home.
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for nearly sixteen months of the young child’s life due to two separate incarcerations. In fact, at
the dispositional hearing, petitioner had not seen the child in nearly a year. Further, the circuit
court considered that the child had special needs and needed permanency in her life. The
grandmother testified that the child was to undergo testing for autism and a neurological
evaluation and that the child had “fits” upon speaking to petitioner on the telephone. As such, we
find no merit in petitioner’s argument that the circuit court terminated her parental rights based
solely upon her anticipated release date from prison.
        Second, while petitioner is correct that the circuit court considered her release date when
terminating her parental rights, her argument that it was disingenuous to subsequently enter the
order terminating her rights after she was released from prison is without merit. While the circuit
court should have entered the order in a more timely fashion, we are unable to conclude that
petitioner was prejudiced by the late entry, as it did not modify or change the conditions that
existed at the time of the dispositional hearing.3 We have previously held that
               “[w]here it appears from the record that the process established by the
       Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes
       for the disposition of cases involving children [alleged] to be abused or neglected
       has been substantially disregarded or frustrated, the resulting order . . . will be
       vacated and the case remanded for compliance with that process and entry of an
       appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
       558 S.E.2d 620 (2001).
Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). However, while the circuit
court filed the dispositional order outside of the time frames set forth in Rule 36(a) of the West
Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, we find that this
procedural error does not warrant reversal of the order. This is especially true in light of the fact
that petitioner was granted post-termination visitation at the discretion of the child’s
grandmother. More importantly, “a mere procedural technicality does not take precedence over
the best interests of the children.” In re Tyler D., 213 W.Va. 149, 160, 578 S.E.2d 343, 354
(2003). As this Court has said on numerous occasions, “the best interests of the child is the polar
star by which decisions must be made which affect children.” Michael K.T. v. Tina L.T., 182
W.Va. 399, 405, 387 S.E.2d 866, 872 (1989). See also Syllabus Point 1, State ex rel. Cash v.
Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972) (“‘In a contest involving the custody of an infant
the welfare of the child is the polar star by which the discretion of the court will be guided.’

       3
         The circuit court entered its dispositional order nearly three months after the
dispositional hearing was held in violation of Rule 36(a) of the West Virginia Rules of Procedure
for Child Abuse and Neglect Proceedings, which states that “[t]he court shall enter a disposition
order, including findings of fact and conclusions of law, within ten (10) days of the conclusion of
the hearing.” We have previously held that “[s]uch a delay is unconscionable, unacceptable, and
unfair to the children.” In re Erica C., 214 W.Va. 375, 589 S.E.2d 517 (2003). This Court has
often stressed the necessity for rapid finality in abuse and neglect proceedings. Specifically, we
have mandated 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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Point 2, Syllabus, State ex rel. Lipscomb v. Joplin, 131 W.Va. 302 [47 S.E.2d 221].”). Here, the
circuit court found that the need for stability and permanency was in the child’s best interest and
necessitated termination of petitioner’s parental rights. Accordingly, we find that the circuit court
did not err in terminating petitioner’s parental rights. While petitioner argues that she was
attempting to take classes to improve her parenting while incarcerated and only had eighty-one
days of her sentence remaining, West Virginia Code §49-4-610(6) sets forth that a circuit court
       may extend any improvement period . . . for a period not to exceed three months
       when the [circuit] court finds that the [parent] has substantially complied with the
       terms of the improvement period; that the continuation of the improvement period
       will not substantially impair the ability of the [DHHR] to permanently place the
       child; and that the extension is otherwise consistent with the best interest of the
       child.
Thus, the circuit court was correct in determining that granting petitioner an extension of her
improvement period would be futile as she was not to be released from prison for nearly three
months, the amount of time the circuit court was permitted to extend the improvement period
pursuant to West Virginia Code §49-4-610(6). As such, the circuit court found that there was no
reasonable likelihood that petitioner could correct the conditions of abuse and neglect and that
termination was necessary for the child’s welfare. Pursuant to West Virginia Code § 49-4­
604(c)(3), a situation in which there is no reasonable likelihood that the conditions of abuse or
neglect can be substantially corrected include one in which “[t]he abusing parent . . . ha[s] not
responded to or followed through with a reasonable family case plan or other rehabilitative
efforts[.]” We have also 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, 89, 479 S.E.2d 589, 600 (1996).
        While petitioner argues that she arranged for housing, drug treatment, and employment
following her release from prison and prior to the entry of the dispositional order, the
circumstances at the time of the dispositional hearing were such that the remainder of her
incarceration prohibited her from complying with a family case plan in a timely manner pursuant
to the time frames set forth under West Virginia Code § 49-4-610. Further, the circuit court
found that the child had special needs and that she required stability and permanency before
petitioner was released from prison. As such, the circuit court did not err in terminating
petitioner’s parental rights.
        For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 7, 2017, order is hereby affirmed.


                                                                                            Affirmed.


ISSUED: November 22, 2017




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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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