                                                    SUPREME COURT OF APPEALS

                                                                                    FILED
In re K.M. and C.M.                                                               April 9, 2018
                                                                                EDYTHE NASH GAISER, CLERK
No. 17-1025 (Kanawha County 16-JA-145 and 146)                                  SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
       Petitioner Mother M.M., by counsel Matthew A. Victor, appeals the Circuit Court of
Kanawha County’s October 31, 2017, order terminating her parental rights to K.M. and C.M.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 and a supplemental appendix. The
guardian ad litem (“guardian”), Sandra K. Bullman, filed a response on behalf of the children in
support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in
denying her motion for an extension of her post-dispositional improvement period and in
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.

        On March 15, 2016, the DHHR filed a petition alleging that petitioner had abused and
neglected the children.2 On March 8, 2016, petitioner reported to the emergency room of
Charleston Area Medical Center complaining of hallucinations. She reported that she was
“covered in bugs, that she was spitting bugs.” Although petitioner denied using illegal drugs, her
drug test results were positive for methamphetamine and ecstasy. The DHHR alleged a history of
domestic violence in the home and further alleged that the children were often without proper
food, clothing, and supervision.



                                                            
              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).
              2
         The petition alleged that six of petitioner’s children were abused and neglected;
however, it was later determined that she had previously voluntarily relinquished her parental
rights to the four older children and they were subsequently adopted. K.M. and C.M. were the
only two children at issue in the abuse and neglect proceedings below.
                                                                   1

 
        On March 22, 2016, petitioner waived the preliminary hearing and agreed to participate
in services including substance abuse evaluation/residential treatment, psychological evaluations,
supervised visitations, and random drug screens. The DHHR also offered petitioner bus passes
for the purpose of attending services. On June 9, 2016, the circuit court held a hearing wherein
petitioner was granted a pre-adjudicatory improvement period. According to the DHHR,
petitioner’s drug screens had been clean, although it did not specify how long they had been
clean. The circuit court ordered petitioner to avail herself of services and further ordered her to
obtain and maintain suitable housing.

        On August 25, 2016, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the allegations of abuse and neglect set forth in the petition and was adjudicated as
an abusing parent. On December 14, 2016, the circuit court held a dispositional hearing wherein
the DHHR and the guardian jointly moved for the termination of petitioner’s parental rights and
petitioner moved for a post-dispositional improvement period, which the circuit court granted.
Services during her post-dispositional improvement period included relapse prevention, random
drug screens, and supervised visitation. On March 17, 2017, the circuit court held a review
hearing wherein the parties agreed that petitioner had complied with the terms and conditions of
her post-dispositional improvement period. The parties also agreed to proceed to disposition.

         On August 15, 2017, the circuit court held the final dispositional hearing. Petitioner was
not present at the dispositional hearing, but was represented by counsel. The DHHR presented
the testimony of a child protective services (“CPS”) worker who recommended termination of
petitioner’s parental rights due to her failure to comply with the services and drug screens for
three months prior to the dispositional hearing. She testified that at the beginning of petitioner’s
post-dispositional improvement period, her compliance was inconsistent. The CPS worker also
testified regarding petitioner’s history of her children being removed from her custody,
continued drug use, and domestic violence. The CPS worker further testified that petitioner was
“inconsistent in maintaining change. And that has resulted in continued disruption in the
children’s lives.” The circuit court found that petitioner did not follow through with a reasonable
family case plan or other rehabilitative services. The circuit court further found that termination
of petitioner’s parental rights was in the children’s best interests and that there was no reasonable
likelihood that the conditions of abuse and neglect could be substantially corrected in the near
future. The circuit court ultimately terminated petitioner’s parental rights in its October 31, 2017,
order.3 It is from the 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,

                                                            
              3
                  According to the guardian and the DHHR, the non-abusing father has full custody of the
children.
                                                               2

 
              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, this Court
finds no error in the proceedings below.

        First, petitioner argues that the circuit court erred in denying her motion for an extension
of her post-dispositional improvement period. She admits that she did not comply with services
but argues that an extension of her improvement period would likely lead to reunification with
her children. We disagree. Pursuant to West Virginia Code § 49-4-610(6), a circuit court may
extend an improvement period when

              the 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 department to permanently place the child;
              and that the extension is otherwise consistent with the best interest of the child.

        Here, petitioner argues that she complied with services until the spring of 2017, at which
time she admitted that she did not continue to avail herself of services.4 The DHHR established
that throughout her post-dispositional improvement period, petitioner’s compliance with its
terms and conditions was inconsistent. Further, the DHHR presented evidence that for three
months prior to the dispositional hearing, petitioner stopped participating in services and drug
screens altogether. The record contains evidence of petitioner’s history of drug abuse, domestic
violence, and failure to make meaningful changes in her lifestyle. Petitioner failed to attend the
dispositional hearing without explanation. Due to her failure to comply with the terms and
conditions of her post-dispositional improvement period, an extension of the improvement period
would not have been consistent with the children’s best interests. Based on this evidence, the
circuit court did not err in denying petitioner’s motion for an extension of her post-dispositional
improvement period.

        Petitioner also argues that the circuit court erred in terminating her parental rights. She
asserts that the circuit court’s decision to terminate her parental rights was “particularly
troublesome” because she successfully fulfilled the conditions of her improvement period. We
disagree and find that petitioner’s assertion is in direct contradiction with the evidence contained
in the record.


                                                            
              4
         Petitioner asserts that her performance “on her improvement period was so satisfactory
that the [c]ircuit [c]ourt granted her an extension of the same.” Petitioner cites to a June 6, 2017,
order wherein the circuit court scheduled a review hearing. The circuit court did not grant
petitioner an extension of her improvement period in that order.
                                                               3

 
        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
children’s welfare. West Virginia Code § 49-4-604(c)(3) provides that no reasonable likelihood
that the conditions of abuse or neglect can be substantially corrected exists when “[t]he abusing
parent . . . ha[s] not responded to or followed through with a reasonable family case plan or other
rehabilitative efforts[.]”

        Here, it is clear that there was no reasonable likelihood that petitioner could have
substantially corrected the conditions of abuse or neglect in the near future. As discussed above,
petitioner failed to comply with the terms and conditions of her post-dispositional improvement
period. Specifically, petitioner failed to participate in services and drug screens for three months
prior to the dispositional hearing.

        Petitioner presents case law that provides that the right of a natural parent to raise his or
her children is a fundamental right protected by the Due Process Clause of the West Virginia and
United States Constitutions. However, petitioner fails to present any argument to support an
assertion that her due process rights were violated. We have often held that “[i]n 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.” Syl. Pt. 3, In re Timber M., 231 W.Va. 44, 743 S.E.2d
352 (2013). Further, while petitioner argues that the circuit court erred in terminating her
parental rights when less-restrictive alternatives existed, 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). Moreover, it is clear that
termination was necessary for the children’s welfare, given that petitioner failed to correct the
conditions of abuse and neglect. For these reasons, we find no error in the circuit court’s
termination of petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 31, 2017, dispositional order is hereby affirmed.


                                                                                          Affirmed.




                                                 4

 
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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