                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


In Re: K.S.                                                                         FILED
                                                                                    May 24, 2013
No. 13-0136 (Kanawha County 11-JA-70)                                          RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


                                 MEMORANDUM DECISION

        Petitioner Mother filed this appeal, by counsel Sharon K. Childers. This appeal arises
from the Circuit Court of Kanawha County, which terminated petitioner’s parental rights on
January 14, 2013. The guardian ad litem for the child, Frank T. Litton Jr., has filed a response
supporting the circuit court’s order. The Department of Health and Human Resources
(“DHHR”), by its attorney Michael L. Jackson, also filed a response in support of the circuit
court’s order.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        In April of 2011, the DHHR filed the underlying petition of the instant case. The petition
alleged that petitioner left her child, who was two years old at the time, unattended in a hotel
room while she went out to a bar. After getting into an altercation at the bar, she was arrested for
child neglect and obstructing an officer. The petition further discussed petitioner’s past history
with the child’s father and two other children to whom her parental rights were terminated in
2005. At the time the DHHR filed its petition, the child’s father was incarcerated for maliciously
wounding petitioner after he stabbed petitioner multiple times in the child’s presence. Petitioner
Mother was concurrently on probation for a 2008 conviction for delivering cocaine, but later
returned to incarceration after violating probation. At adjudication, petitioner stipulated to abuse
and neglect of K.S. and agreed to participate in an inpatient substance abuse program. Such
participation allowed her release from incarceration as a condition of probation. Because she
subsequently left the program without completing it, she was again ordered to return to jail. After
the December of 2012 dispositional hearing, the circuit court terminated petitioner’s parental
rights to the subject child. From this order, petitioner brings this appeal.

        Petitioner Mother argues five assignments of error. In her first two issues, she argues that
the circuit court erred in terminating her parental rights when she was denied an opportunity for a
meaningful improvement period because the DHHR did not provide previously ordered
reunification services to her. Next, petitioner argues that the circuit court erred in terminating her
parental rights because the termination was based in significant part on her lack of financial
resources. She asserts that she attempted to secure proper housing in order to receive a proper



                                                  1
home plan; however, because she lacked financial resources, she was unable to do so. Petitioner
further argues that the DHHR caseworker had very little contact with her throughout the case.

         Petitioner Mother also argues that the DHHR did not meet its burden in proving that there
was no reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected in the near future. Petitioner asserts that her incarceration should not have been a factor
in the circuit court’s decision to terminate her parental rights. She reiterates that she was denied a
meaningful improvement period without services provided by the DHHR, as ordered. Lastly,
petitioner argues that the circuit court erred in not addressing the issue of post-termination
visitation between petitioner and her child. Petitioner argues that, during the proceedings, no
evidence was provided to show that post-termination visitation would not have been in the
child’s best interests or that it would have unreasonably interfered with the child’s placement.

        In response to petitioner’s arguments, the child’s guardian ad litem and the DHHR
contend that the circuit court committed no errors or abuse of discretion in this case. They
highlight petitioner’s failure to complete her inpatient substance treatment and that, during her
psychological evaluation, she unabashedly expressed that she intended to resume illicit drug use
once released from custody. Respondents further argue that petitioner has failed to accept
responsibility for her drug and alcohol use and has failed to make any meaningful changes
throughout her extensive history with the DHHR. The guardian ad litem also raises that
petitioner’s financial status does not bear any weight on the fact that she left her substance abuse
treatment and highlights that the psychological reports indicated that supervised visitation would
not be beneficial or appropriate for the child.

       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).

        Upon our review, the Court finds no error or abuse of discretion in the circuit court’s
rulings in this case, including its termination of petitioner’s parental rights. The circuit court
granted petitioner a post-adjudicatory improvement period, pursuant to West Virginia Code § 49­
6-12, to which petitioner did not fully comply. It thereafter did not abuse its discretion when it


                                                  2
denied her motion for an improvement period at disposition. Petitioner’s assertion that she did
not receive ordered services from the DHHR does not warrant reversal. Nothing in the record
submitted on appeal supports her argument that the DHHR did not provide any services. Rather,
the record indicates that petitioner did not take advantage of the services provided to her.
Moreover, the circuit court found that the DHHR did not have the obligation to make reasonable
efforts to reunify petitioner with her child pursuant to West Virginia Code § 49-6-5(a)(7)(B)(iv).
We find it more significant that petitioner has denied her substance abuse issues and failed to
comply with provided treatment than her arguments concerning consideration of her financial
status and periods of incarceration. We find that the circuit court was presented with sufficient
evidence 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
child’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to
terminate parental rights upon such findings. With regard to petitioner’s argument concerning
post-termination visitation, we find no support in the record on appeal that she raised this issue
before the circuit court. Accordingly, we decline to address this issue on appeal.

       For the foregoing reasons, we affirm the circuit court’s termination of parental rights.


                                                                                         Affirmed.

ISSUED: May 24, 2013


CONCURRED IN BY:

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




                                                3
