                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS
                                                                                      FILED
In re L.S.                                                                          April 9, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 17-1124 (Roane County 17-JA-9)                                               SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 

                                                          MEMORANDUM DECISION
       Petitioner Mother J.P., by counsel D. Kyle Moore, appeals the Circuit Court of Roane
County’s November 16, 2017, order terminating her parental rights to L.S.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”), Michael W.
Asbury, Jr., 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 denying her an improvement period and
terminating her parental rights without first granting her an improvement period.

        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 February of 2017, the DHHR filed an abuse and neglect petition against petitioner. The
DHHR alleged that petitioner was pulled over in a traffic stop after she was observed driving a
vehicle while intoxicated with the child as a passenger. The traffic stop revealed drugs and drug
paraphernalia within reach of the child and the child was noted to be playing with a box
containing buprenorphine. Petitioner was arrested and charged with (1) child neglect creating
risk of injury, (2) driving under the influence with a minor, (3) two counts of possession of a
controlled substance, and (4) driving with a revoked license for driving under the influence. The
DHHR alleged that the child was observed to have severe dental decay and health concerns
related to his ear, nose, and throat. Finally, the petition alleged that petitioner’s parental rights to
an older child had been involuntarily terminated due to her failure to remedy her drug abuse.
Petitioner waived her preliminary hearing.

       The circuit court held an adjudicatory hearing in March of 2017. Petitioner failed to
attend but was represented by counsel. After hearing evidence, the circuit court adjudicated

                                                            
              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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petitioner as an abusing parent. Subsequent to the hearing, petitioner filed a motion for a post-
adjudicatory improvement period.

        In May of 2017, the circuit court held an initial dispositional hearing on petitioner’s
motion for a post-adjudicatory improvement period. In support of her motion, petitioner testified
that she would comply with any terms or conditions set forth in the improvement period and that
she had been searching for an inpatient substance abuse treatment program. The DHHR
submitted petitioner’s parental fitness evaluation, wherein the evaluator opined that petitioner’s
prognosis for parental improvement was “extremely poor to non-existent.” The circuit court
denied petitioner’s motion for a post-adjudicatory improvement period, finding that petitioner
previously had her parental rights to an older child involuntarily terminated due to nearly
identical circumstances and failed to enroll in a long-term inpatient treatment facility. As such,
the circuit court determined that petitioner was not likely to fully participate in an improvement
period.

         The circuit court held a final dispositional hearing in October of 2017. The circuit court
provided an overview of the case and ultimately terminated petitioner’s parental rights, finding
that the child’s best interests required termination, that petitioner had not attempted to participate
in any substance abuse treatment throughout the proceedings and was unable to participate in
visitation with the child, and that she had had her parental rights to an older child involuntarily
terminated due to similar circumstances. It is from the November 16, 2017, dispositional order
that petitioner appeals.2

              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 denying her an improvement
period. Specifically, petitioner argues that she acknowledged that she had a substance abuse

                                                            
              2
       The father successfully completed an improvement period and the petition against him
was dismissed. The permanency plan is for the child to remain in the custody of his father. 
                                                               2

 
problem and that she needed help remedying the issue. Further, petitioner argues that she
provided negative drug screens through her Suboxone clinic. Petitioner believes that her clean
drug screens, coupled with her testimony, prove that she is likely to fully participate in an
improvement period. We disagree. The decision to grant or deny an improvement period rests in
the sound discretion of the circuit court. See In re: M.M., 236 W.Va. 108, 115, 778 S.E.2d 338,
345 (2015) (holding that “West Virginia law allows the circuit court discretion in deciding
whether to grant a parent an improvement period”); Syl. Pt. 6, in part, In re Katie S., 198 W.Va.
79, 479 S.E.2d 589 (1996) (holding that “[i]t is within the court’s discretion to grant an
improvement period within the applicable statutory requirements”). We have also held that a
parent’s “entitlement to an improvement period is conditioned upon the ability of the [parent] to
demonstrate ‘by clear and convincing evidence, that the [parent] is likely to fully participate in
the improvement period . . . .’” In re: Charity H., 215 W.Va. 208, 215, 599 S.E.2d 631, 638
(2004).

        While petitioner argues that she would have fully participated in an improvement period,
her actions throughout the proceedings below demonstrate otherwise. Petitioner previously had
her parental rights to an older child terminated for her substance abuse issues. Nevertheless,
petitioner persisted in her substance abuse and became the subject of the instant proceedings for
nearly identical circumstances. Petitioner knew that her parental rights were at risk, yet did
nothing to remedy the issues of abuse. Petitioner did not enter into long-term inpatient substance
abuse treatment and, therefore, was unable to visit with her child throughout the proceedings.
“We have previously pointed out that the level of interest demonstrated by a parent in visiting his
or her children while they are out of the parent’s custody is a significant factor in determining the
parent’s potential to improve sufficiently and achieve minimum standards to parent the child.” In
re Katie S., 198 W.Va. 79, 90, n. 14, 479 S.E.2d 589, 600, n. 14 (1996)(citing In Interest of
Tiffany Marie S., 196 W.Va. 223, 228 and 237, 470 S.E.2d 177, 182 and 191 (1996); State ex rel.
Amy M. v. Kaufman, 196 W.Va. 251, 259, 470 S.E.2d 205, 213 (1996)). As such, petitioner’s
complete lack of any attempt to remedy the circumstances of abuse during the proceedings below
demonstrates that the circuit court did not err in finding that she was not likely to fully
participate in an improvement period or in denying her the same.

        Petitioner also argues that the circuit court erred in terminating her parental rights without
first granting her an improvement period. Specifically, petitioner argues that she was honest
about her substance abuse issues and her attempts to remedy the same. As such, petitioner argues
that terminating her parental rights without granting her the opportunity to remedy the conditions
of abuse violated her right to due process. We find petitioner’s argument to be without merit.
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 child’s
welfare. According to West Virginia Code § 49-4-604(c)(1), a situation in which there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes
one in which

       [t]he abusing parent or parents have habitually abused or are addicted to . . .
       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


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       through the recommended and appropriate treatment which could have improved
       the capacity for adequate parental functioning[.]

        The record establishes that there was no reasonable likelihood that petitioner could
correct the conditions of abuse and neglect. As mentioned, this is petitioner’s second time
participating in abuse and neglect proceedings. Petitioner knew that her substance abuse could
lead to the termination of her parental rights, as it did in prior proceedings, and, despite this
knowledge, she continued abusing drugs, resulting in the initiation of the instant proceedings.
Petitioner failed to attend her adjudicatory hearing and underwent a parental fitness evaluation,
wherein she was determined to have an extremely poor to non-existent prognosis for parental
improvement. Finally, petitioner did not enter into long-term inpatient substance abuse treatment
as recommended by the circuit court and her parental fitness evaluation. While petitioner argues
that the circuit court should not have terminated her parental rights without first granting her an
improvement period, 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). Petitioner chronically abused
controlled substances over the course of several years. She was provided services throughout her
prior case and yet returned to abusing controlled substances. Petitioner did not seek to enter
inpatient substance abuse treatment throughout the instant proceedings. Therefore, we find that
the circuit court did not err in terminating petitioner’s parental rights as there was no reasonable
likelihood that she could correct the conditions of abuse and/or neglect and termination was
necessary for the child’s welfare.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 16, 2017, order is hereby affirmed.


                                                                                         Affirmed.
ISSUED: April 9, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
 

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