                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                  FILED
In re T.T.-1 and W.C.                                                         November 8, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
No. 19-0353 (Randolph County 17-JA-085 and 17-JA-092)                               OF WEST VIRGINIA




                               MEMORANDUM DECISION


       Petitioner Mother T.T.-2, by counsel J. Brent Easton, appeals the Circuit Court of Randolph
County’s March 8, 2019, order terminating her parental rights to T.T.-1 and W.C.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, Heather M. Weese, filed
a response on behalf of the children in support of the circuit court’s order. On appeal, petitioner
argues that the circuit court abused its discretion in finding that petitioner failed to successfully
complete her post-adjudicatory improvement period, denying her motion for a post-dispositional
improvement period, and terminating her 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 October of 2017, the DHHR filed a child abuse and neglect petition alleging that
petitioner’s substance abuse negatively affected her ability to parent four-year-old T.T.-1. The
DHHR alleged that petitioner abused buprenorphine without a valid prescription and that her
boyfriend sold and abused methamphetamine in the home. The DHHR further alleged that
petitioner was pregnant and was not receiving proper prenatal care. In November of 2017, the
DHHR amended its petition following the birth of W.C. The DHHR alleged that petitioner and the


       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 a child and petitioner share the same
initials, we refer to them as T.T.-1 and T.T.-2, respectively, throughout this memorandum decision.


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child tested positive for Suboxone at the time of delivery and that petitioner could not provide a
valid prescription for the same.

        In November of 2017, petitioner stipulated to adjudication, and the circuit court adjudicated
the children as neglected children and petitioner as an abusing parent. Thereafter, petitioner was
granted a post-adjudicatory improvement period. The terms of that improvement period required
petitioner to participate in a psychological evaluation, individual counseling, a drug and alcohol
assessment, parenting and adult life skills, supervised visitations, and random drug screening.
Additionally, petitioner was required to maintain financial stability and a suitable home with no
inappropriate individuals in the home.

        The circuit court held multiple review hearings regarding petitioner’s improvement period
from January of 2018 to May of 2018. As a result of evidence presented during these hearings, the
circuit court found that petitioner was only partially compliant with her improvement period.
However, the circuit court, hearing no objections, continued petitioner’s improvement period. In
May of 2018, petitioner’s post-adjudicatory improvement period was extended for ninety-days.
During this extension, the circuit court held two review hearings, and the DHHR reported that
petitioner was not fully complying with services. In October of 2018, the DHHR asserted that
petitioner’s improvement period expired and was unsuccessful. Petitioner requested a second
extension of her improvement period. The circuit court scheduled an evidentiary hearing regarding
the success of petitioner’s improvement period.

         In January of 2019, the circuit court held a hearing and heard evidence that petitioner did
not fully participate in her improvement period. Testimony established that petitioner participated
in 113 random drug screenings and was positive for controlled substances, other than her
prescribed buprenorphine, on four occasions. The most recent positive drug screen was in October
of 2018, after the DHHR had provided petitioner with services for eleven months. Further
testimony showed that petitioner missed four individualized parenting classes, but was otherwise
generally compliant with the provider. In regard to supervised visitation, petitioner attended only
half of the scheduled visits. Petitioner admitted that four months was her longest period of sobriety
during the proceedings and acknowledged that she failed to participate in random drug screening
since early December of 2018. Ultimately, the circuit court found that petitioner was not successful
in her post-adjudicatory improvement period due to her partial compliance with services; however,
the circuit court directed that the DHHR continue to provide petitioner services until the
dispositional hearing.

        The circuit court held the final dispositional hearing in February of 2019. According to the
testimony presented, a multidisciplinary team (“MDT”) meeting was held in early February.
During the MDT meeting, the parties expressed concern regarding petitioner’s recent lack of
consistent drug screening, and, in response, petitioner agreed to submit to a drug screen every day
until the final dispositional hearing. However, at the dispositional hearing, petitioner testified that
she did not submit to any further drug screening following the MDT. The circuit court found that
petitioner participated in only two drug screens since the hearing in January of 2019. Ultimately,
the circuit court found that petitioner did not demonstrate that she was likely to fully participate in
an additional improvement period and further found that it was not in the children’s best interests
that she be granted an additional improvement period. Finally, the circuit court found that there

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was no reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected in the near future. Accordingly, the circuit court terminated petitioner’s parental rights
by its March 8, 2019, order. Petitioner now appeals that order.2

       The Court has previously held:

               “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 review, this Court finds no
error in the proceedings below.

        On appeal, petitioner asserts that the circuit court abused its discretion in finding that she
failed to successfully complete her post-adjudicatory improvement period. Petitioner argues that
she tested negative for controlled substances 109 times, progressed in parenting and adult life skills
classes, and had positive supervised visitations with the children. Further, petitioner states that she
maintained stable housing and employment. Therefore, petitioner concludes that she largely
participated in the terms of her improvement period and the circuit court ruling was contradictory
to the evidence presented and an abuse of discretion. We disagree.

               At the conclusion of the improvement period, the court shall review the
       performance of the parents in attempting to attain the goals of the improvement
       period and shall, in the court’s discretion, determine whether the conditions of the
       improvement period have been satisfied and whether sufficient improvement has
       been made in the context of all the circumstances of the case to justify the return of
       the child.

Syl. Pt. 2, In re C.M., 235 W. Va. 16, 770 S.E.2d 516 (2015). Although petitioner is correct that
she made progress in some terms of her improvement period, she failed to successfully address a
significant condition of abuse and neglect, her substance abuse. Petitioner participated in a
medically assisted substance abuse treatment throughout the proceedings, but admitted to relapsing


       2
         The children’s respective fathers voluntarily relinquished their parental rights during the
proceedings below. According to the parties, the permanency plan for the children is adoption by
relatives.


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four times during the year-long improvement period, despite this treatment. Petitioner’s most
recent positive drug screen result was in October of 2018, eleven months into her substance abuse
treatment. In the face of her continuing issues with substance abuse, petitioner ceased participating
in random drug screening prior to the circuit court’s hearing to determine if the improvement
period was successful, and, therefore, her potential continued substance abuse could not be
monitored. Therefore, we find no abuse of discretion in the circuit court’s finding that petitioner
failed to successfully complete her post-adjudicatory improvement period.

        Petitioner also argues that the circuit court abused its discretion in denying her motion for
a post-dispositional improvement period, but acknowledges that “West Virginia law allows the
circuit court discretion in deciding whether to grant a parent an improvement period.” In re M.M.,
236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015). West Virginia Code § 49-4-610(3)(B) provides
that a circuit court may grant a post-dispositional improvement period when the parent
“demonstrates, by clear and convincing evidence, that the [parent] is likely to fully participate in
the improvement period.” Petitioner asserts that her participation in services was clear and
convincing evidence that she would fully participate in a post-dispositional improvement period.
We disagree and find no abuse of discretion in the circuit court’s ruling.

        Following petitioner’s improvement period review hearing, she failed to fully participate
in services, such as random drug screening. Although she did undergo three drug screens during
this time, two of these screens were completed on consecutive dates, which meant petitioner was
essentially untested for multiple weeks between early January of 2019 and February of 2019. This
is especially concerning given petitioner’s history of relapse during these proceedings and directly
contradicts petitioner’s assertion that she was likely to fully participate in the terms of an additional
improvement period. Additionally, because petitioner requested a second improvement period
following her unsuccessful completion of the first, she must also show that “[s]ince the initiation
of the proceeding . . . [she] experienced a substantial change in circumstances . . . [and] that due
to that change in circumstances [she] [was] likely to fully participate in a further improvement
period.” See W. Va. Code § 49-4-610(2)(D). However, petitioner did not address this requirement
below or on appeal. Nevertheless, due to petitioner’s consistent relapses during the proceedings,
there was no substantial change of circumstances that warranted the granting of a second
improvement period. Accordingly, we find no abuse of discretion in the circuit court’s denial of a
post-dispositional improvement period for petitioner.

        Finally, we find that the circuit court correctly terminated petitioner’s parental rights. West
Virginia Code § 49-4-604(b)(6) provides that circuit courts may 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 welfare of the
children. Further, West Virginia Code § 49-4-604(c)(3) describes circumstances in which there is
“no reasonable likelihood that conditions of neglect or abuse can be substantially corrected” and
specifically includes a circumstance in which the abusing parent has

        not responded to or followed through with a reasonable family case plan or other
        rehabilitative efforts of social, medical, mental health or other rehabilitative
        agencies designed to reduce or prevent the abuse or neglect of the child, as



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       evidenced by the continuation or insubstantial diminution of conditions which
       threatened the health, welfare, or life of the child.

Here, petitioner failed to remedy her substance abuse during her post-adjudicatory improvement
period and, in fact, ceased fully participating in drug screening from December of 2018 until
February of 2019. Additionally, petitioner missed approximately half of her visitations with her
children, who were four-years-old and newly born when removed from her care. “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) (citations omitted). Petitioner
contested some of these missed visitations below, but the evidence showed that several visitations
were missed due to petitioner’s failure to submit to drug screens in a timely manner. We have long
held that

               “[c]ourts are not required to exhaust every speculative possibility of
       parental improvement . . . where it appears that the welfare of the child will be
       seriously threatened, and this is particularly applicable to children under the age of
       three years who are more susceptible to illness, need consistent close interaction
       with fully committed adults, and are likely to have their emotional and physical
       development retarded by numerous placements.” Syl. Pt. 1, in part, In re R.J.M.,
       164 W.Va. 496, 266 S.E.2d 114 (1980).

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4. The circuit court provided petitioner
multiple opportunities to improve her parenting and, most importantly, treat her substance abuse.
Yet, even with the support systems in place and services provided, petitioner could not maintain
sobriety and could not correct this condition of abuse and neglect. As petitioner failed to remedy
the conditions of abuse and neglect, the children’s welfare would continue to be threatened if
returned to her care. Accordingly, it was necessary for the children’s welfare to terminate
petitioner’s parental rights. We have held as follows:

               “Termination of parental rights, the most drastic remedy under the statutory
       provision covering the disposition of neglected children, [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 [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). Therefore, as the circuit court’s
findings are fully supported by the record below, we find no error in the termination of petitioner’s
parental rights.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its March
8, 2019, order is hereby affirmed.



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                                        Affirmed.

ISSUED: November 8, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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