                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In re: A.V.-1                                                                      FILED
                                                                                June 9, 2017
                                                                               RORY L. PERRY II, CLERK
No. 16-0886 (Mineral County 15-JA-29)                                        SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Mother A.V.-2, by counsel Jeremy B. Cooper, appeals the Circuit Court of
Mineral County’s September 8, 2016, order terminating her parental rights to A.V.-11 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”),
Kelley A. Kuhn, 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 finding sufficient evidence to
constitute imminent danger to the child, in accepting her stipulation at adjudication, and in
terminating her parental rights. Petitioner also argues that she received ineffective assistance of
counsel during the underlying proceedings.

        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 September of 2015, the DHHR filed an abuse and neglect petition against petitioner
alleging that A.V.-1 was born drug-addicted and suffered from withdrawal symptoms. The
petition also alleged that petitioner had a history of drug abuse and made statements to hospital
personnel indicating that she did not want the child.

       In October of 2015, the circuit court held a preliminary hearing wherein petitioner waived
her right to the same. Petitioner’s counsel indicated that there was an outstanding warrant for


       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). Additionally, because petitioner and the child share the same
initials, we will refer to them as A.V.-1 and A.V.-2 throughout this memorandum decision.



                                                1


petitioner’s arrest in the State of Maryland and, that following the preliminary hearing, she
would be taken into custody and transported to Maryland.

        In November of 2015, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the allegations as contained in the petition and admitted to having “a significant
addiction history in regard to heroin . . . .” The circuit court granted petitioner a post­
adjudicatory improvement period and ordered that she participate in life skills classes, participate
in parenting training classes, participate in drug abuse counseling, submit to random drug
screening, and undergo a psychological evaluation. Subsequently, in February of 2016, petitioner
was incarcerated on her previous criminal charges in Maryland. Following a series of hearings
and petitioner’s release from incarceration, her improvement period resumed in April of 2016.

        In June of 2016, the circuit court held a third review hearing regarding petitioner’s
improvement period. At the hearing, the DHHR reported that petitioner was not progressing.
Following the hearing, the guardian filed a motion to terminate petitioner’s improvement period
based upon her failure to comply with services. In July of 2016, the circuit court held a hearing
on the guardian’s motion wherein a service provider testified that petitioner failed to visit the
child for two weeks following her release from incarceration. The provider also testified that,
while petitioner did sporadically visit with the child, she continued to miss scheduled visits with
the child. The provider further testified that petitioner failed to make progress in her visits with
the child. Another service provider testified that petitioner failed to progress in her individualized
parenting and adult life skills classes and lacked the motivation to improve her parenting skills.
According to the provider, petitioner expressed that she did not want to participate in some of the
services required by her family case plan. A third service provider assigned to randomly drug
screen petitioner testified that petitioner failed to participate in at least five random drug screens
and tested positive for alcohol in May of 2016. The provider further testified that petitioner failed
to participate in random drug screening or substance abuse counseling from June 13, 2016, to
June 27, 2016. At the conclusion of the hearing and based on the evidence presented, the circuit
court terminated petitioner’s improvement period.

         In August of 2016, the circuit court held a dispositional hearing wherein a DHHR worker
testified that petitioner failed to acknowledge her parenting issues despite several months of
services. The service provider who administered petitioner’s drug screens testified that, since the
termination of her improvement period, petitioner tested positive for methamphetamines and
Suboxone. Petitioner testified that she “had no good reason” for testing positive for
methamphetamines and Suboxone and also admitted to having substance abuse issues. Based on
the evidence presented and by order entered on September 8, 2016, the circuit court found that
there was no reasonable likelihood petitioner could substantially correct the conditions of abuse
and neglect and terminated her parental rights.2 It is from that September 8, 2016, order that
petitioner appeals.



       2
        Petitioner’s parental rights to A.V.-1 were terminated below. The parental rights of
A.V.-1’s father, S.B., were terminated in a separate proceeding. According to the guardian, the
child was placed in foster care and the permanency plan is adoption into that home.


                                                  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).

        First, we address petitioner’s argument that she received ineffective assistance of counsel
during the underlying proceedings.3 Specifically, petitioner argues that her counsel advised her to
waive her right to a preliminary hearing but that she “gained nothing” from said waiver.
Petitioner’s argument fails to meet the ineffective assistance of counsel standard previously
articulated by this Court.4 To find that ineffective assistance of counsel occurred, petitioner must
prove that “[c]ounsel’s performance was deficient under an objective standard of reasonableness;
and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceedings would have been different.” Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d
114 (1995). It is clear from the record that the circuit court accepted petitioner’s knowing and
voluntary waiver of her right to a preliminary hearing. Petitioner fails to articulate what she
expected to gain from waiving her right to the preliminary hearing. Thus, petitioner provides no
evidence that the proceedings would have been different if she did not waive her right. For these
reasons, the Court declines to find that petitioner received ineffective assistance of counsel.

        Next, we find no error in the circuit court’s finding that imminent danger to the child
existed at the time of the petition’s filing. In support of her argument, petitioner asserts that the
Suboxone she used while pregnant was prescribed to her by a physician. As such, she argues that
her Suboxone use does not meet the statutory definition of imminent danger. However,
petitioner’s argument ignores both the specific facts of the case and West Virginia Code § 49-1­
201, which provides that imminent danger exists when there is an “emergency situation in which
the welfare or the life of the child is threatened.” This statute further provides that the welfare or
the life of the child is threatened when “[t]he parent’[s] . . . abuse of alcohol or drugs or other

       3
        Petitioner was represented by Max H. White in the underlying abuse and neglect
proceedings.
       4
        We note that this Court has never recognized a claim for ineffective assistance of
counsel in the context of abuse and neglect matters, and declines to do so in the instant matter.
                                                  3


controlled substance[s] . . . has impaired his or her parenting skills to a degree as to pose an
imminent risk to a child’s health or safety.” W.Va. Code § 49-1-201(H) (2015).

        It is clear from the record on appeal that the child was born drug-addicted as a result of
petitioner’s use of Suboxone. Moreover, it is also clear that after the child’s birth, petitioner
made numerous statements to medical personnel that she did not want the child and could not
care for him. Additionally, while petitioner argues that she used Suboxone “under the care of a
physician who prescribed it to her,” petitioner admitted that she purchased Suboxone illegally
and had an extensive history of substance abuse. Further, petitioner failed to participate in
random drug screening, tested positive for drugs, and continued to abuse drugs “for no good
reason.” As such, the circuit court was presented with sufficient evidence to find that imminent
danger to the child existed at the time of the petition’s filing and we, therefore, find no error.

         Petitioner also argues that the circuit court erred in accepting her stipulation at
adjudication. Petitioner contends that her admissions were insufficient to support the circuit
court’s finding of abuse and neglect. We disagree and find no error below. Petitioner tested
positive for methamphetamines and Suboxone and admitted to abusing substances throughout
the proceedings below. The Court finds that petitioner is not entitled to challenge the sufficiency
of her adjudication on appeal because she stipulated to the same. We have previously held that
“‘[a] litigant may not silently acquiesce to an alleged error, or actively contribute to such error,
and then raise that error as a reason for reversal on appeal.’ Syllabus Point 1, Maples v. West
Virginia Dep’t of Commerce, 197 W.Va. 318, 475 S.E.2d 410 (1996).” Syl. Pt. 2, Hopkins v. DC
Chapman Ventures, Inc., 228 W.Va. 213, 719 S.E.2d 381 (2011). Further, “[a] judgment will not
be reversed for any error in the record introduced by or invited by the party seeking reversal.”
Syllabus Point 21, State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966), overruled on other
grounds by Proudfoot v. Dan’s Marine Service, Inc., 210 W.Va. 498, 558 S.E.2d 298 (2001), Id.
at 215, 719 S.E.2d at 383, Syl. Pt. 3. The record in this matter is clear that petitioner voluntarily
stipulated to the adjudication against her. Moreover, petitioner did not object to her adjudication
as an abusing parent, nor challenge the sufficiency of the allegations against her as contained in
the petition. In fact, the record shows that the circuit court inquired of petitioner as to her
“understanding of the admission” and “understanding of the consequences of said admission
including the possible termination of her parental rights.” Petitioner answered the circuit court’s
inquiry in the affirmative. Based on the evidence presented below, the circuit court found that
petitioner made her admissions “voluntarily and freely” and understood the consequences of said
admissions. For these reasons, the Court finds that petitioner is entitled to no relief in regard to
adjudication in this matter, as she clearly invited any such error by entering into a stipulated
adjudication.

       Finally, petitioner argues that the circuit court erred in terminating her parental rights.5
The Court, however, does not agree. Further, petitioner’s argument ignores the facts of the case
presented below. Specifically, the circuit court found that petitioner failed to remedy the

       5
        Petitioner’s final assignment of error was that the circuit court erred in terminating her
parental rights because she received ineffective assistance of counsel. As previously stated, we
have never recognized a claim for ineffective assistance of counsel in the context of abuse and
neglect matters, and decline to do so here.
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conditions of abuse and neglect in the home. These findings were based on substantial evidence,
including evidence that petitioner failed to visit the child, failed to comply with services, failed
to participate in all random drug screens, and tested positive for methamphetamines, Suboxone,
and alcohol. Pursuant 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 . . . [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 . . . [has] not responded to or followed through
       [with] the recommended and appropriate treatment which could have improved
       the capacity for adequate parental functioning.

        Based upon the substantial evidence outlined above, the circuit court found there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect because she failed to participate in services and continued to abuse drugs. The circuit
court further found that termination of petitioner’s parental rights was necessary for the child’s
welfare. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to
terminate a parent’s parental rights upon such findings. Accordingly, we find no error below.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 8, 2016, order is hereby affirmed.

                                                                                         Affirmed.

ISSUED: June 9, 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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