                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


                                                                                     FILED
In re Z.M. and J.M.
                                                                                   April 6, 2020
                                                                                EDYTHE NASH GAISER, CLERK
No. 19-0656 (Webster County 18-JA-36 and 18-JA-37)                              SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION



         Petitioner Mother A.M., by counsel Andrew Chattin, appeals the Circuit Court of Webster
County’s June 25, 2019, order terminating her parental rights to Z.M. and J.M. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N. Felton-Ernest,
filed a response in support of the circuit court’s order and a supplemental appendix. The guardian
ad litem, Mary E. Snead, filed a response on behalf of the children in support of the circuit court’s
order and a supplemental appendix. On appeal, petitioner argues that the circuit court erred 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.

        In July of 2018, the DHHR filed an abuse and neglect petition against petitioner and
custodian D.G. The petition alleged that petitioner and D.G. engaged in domestic violence against
each other and abused the children. According to the petition, Z.M. disclosed that both D.G. and
petitioner spanked and slapped him. A DHHR worker observed bruising on Z.M.’s face. Petitioner
denied any physical altercations between herself and D.G., and both denied causing the children’s
bruising. Petitioner blamed the children playing with toys, while D.G. said it was from the children
hitting each other in the face with sticks. The worker also observed Z.M. had cavities on both front
teeth. Dental records later confirmed he had gone two years without a dentist appointment.


       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).


                                                  1
Petitioner also acknowledged J.M. suffered from ADHD, but medical records showed he missed
his last two medical appointments. As such, the DHHR alleged that petitioner failed to provide the
children with a suitable home by engaging in domestic violence and failing to provide proper
medical and dental care. Thereafter, the circuit court ratified the children’s removal and awarded
petitioner supervised visitation, provided she remained drug free.

        In August of 2018, the circuit court suspended petitioner’s visitation after she tested
positive for methamphetamine and amphetamine. The DHHR subsequently filed an amended
petition, adding petitioner’s substance abuse to the list of allegations. In September of 2018, the
circuit court adjudicated petitioner as an abusing parent because of domestic violence in the
children’s presence, her substance abuse, and her failure to provide a suitable home for the
children. In November of 2018, the circuit court granted petitioner a six-month post-adjudicatory
improvement period that required her to have no contact with D.G.; establish a fit and suitable
home within thirty days, that was not with D.G.’s mother; participate in parenting classes; maintain
employment; participate in random drug screens; and participate in supervised visitation with the
children.

        The DHHR filed a motion to revoke petitioner’s improvement period and terminate her
parental rights in February of 2019. The DHHR alleged that petitioner was noncompliant with
several terms of her improvement period. Notably, the DHHR alleged that petitioner’s residence
was “not apt and suitable because of being unkempt,” she missed several parenting classes, she
failed to appear for eight of her sixteen random drug screens, and she was staying at D.G.’s
mother’s house, in direct contravention of the terms and conditions of her improvement period.
The circuit court denied the DHHR’s motion. Following multiple review hearings, petitioner’s
improvement period was permitted to continue. In May of 2019, the circuit court found that
petitioner’s improvement period had expired and set the matter for disposition.

         In June of 2019, the circuit court held a dispositional hearing. Prior to the dispositional
hearing, the DHHR filed a new motion to terminate petitioner’s parental rights. The DHHR’s
motion renewed its earlier allegations and added that petitioner was behind on rent payments,
moved out of her home without informing her caseworker, failed to maintain contact with the
DHHR, refused to let the caseworker visit petitioner’s new home, was fired from her job for
missing work, was suspected of maintaining contact with D.G., and lied about staying with a friend
on various occasions. The DHHR also suspended petitioner’s visitation with the children after she
refused to produce a valid sample for a drug screen. After the testimony of several witnesses, the
circuit court found that petitioner had “not complied with [c]ourt orders,” “failed to maintain[] a
fit and suitable home,” “not complied with the random drug testing as ordered,” “admitted . . . that
she . . . lied in [c]ourt,” and “continued to have contact with [D.G].” Based on this evidence, the
circuit court found that there was no reasonable likelihood petitioner could substantially correct
the conditions of abuse and neglect, given that petitioner failed to follow through with the family
case plan and associated services. The circuit court further found that termination of petitioner’s
parental rights was in the children’s best interests. Accordingly, the circuit court terminated




                                                 2
petitioner’s parental rights to the children. 2 It is from the June 25, 2019, 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, 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).

        Petitioner’s sole assignment of error on appeal is that the circuit court erred in terminating
her parental rights because she substantially complied with her improvement period and corrected
the conditions of abuse and neglect. According to petitioner, the only issues that needed to be
corrected were domestic violence and substance abuse. This argument, however, not only misstates
the record but also ignores the myriad of issues for which she was adjudicated. When petitioner
was granted an improvement period in November of 2018, one of the conditions she agreed to was
that she “establish a fit and suitable home, not with [D.G.]’s mother” within thirty days. Another
term was that petitioner “shall obtain employment and/or remain gainfully employed.” In January
of 2019, however, the DHHR filed its first motion to revoke petitioner’s improvement period and
terminate her parental rights, in part, because her residence was “unkempt,” and she was located
at and suspected of staying at D.G.’s mother’s residence. Although the circuit court allowed
petitioner to continue in her improvement period, it was later determined that petitioner failed to
pay her rent, had moved out of her home and into a new residence, was not seen at her new
residence despite multiple trips by the DHHR, and later disclosed her new home lacked water and
she had been staying in a tent. Petitioner also refused to disclose the tent’s location and refused the
DHHR’s several attempts to tour her new residence. The DHHR employee then volunteered to
help petitioner find somewhere else to live, but petitioner declined the assistance. Petitioner also
disclosed she owed an electric bill in excess of $700.00 and was unable to receive electric in her
name. Additionally, petitioner was fired from her job, where her supervisor said she was scheduled
for over eighty hours a month and could have received more work, but she was not dependable.
When the DHHR employee was informed petitioner was now working at a diner but lacked enough


       2
         According to the parties, Z.M. has achieved permanency by being placed in the custody
of his nonabusing father. J.M.’s father’s parental rights were terminated and the permanency plan
for J.M. is adoption or, concurrently, guardianship by his grandmother, with whom he is currently
living.
                                                  3
weekly pay to support herself and the children, the employee suggested she was eligible for low
income housing. Petitioner denied this additional offer of assistance and reported staying with a
friend, who said petitioner never stayed with her.

        Despite all this, petitioner argues “only her desperate financial situation” prevented her
from obtaining suitable housing. Further, petitioner argues “her alleged continued relationship”
with D.G. “was never proven.” While petitioner is correct that the record shows that she was, at
times, compliant with the terms of her improvement period and that the circuit court permitted the
improvement period to continue after multiple review hearings, she ignores the fact that her
compliance was sporadic and she misrepresented herself to the DHHR and the circuit court on
several occasions. Even more importantly, as noted above, petitioner not only failed to comply
with various services but failed to communicate with the DHHR about her living situation and—
in spite of petitioner’s claims of a “desperate financial situation”—declined additional assistance
to obtain housing offered to her. As such, the record is clear that despite several continuances of
her improvement period, petitioner failed to maintain her compliance throughout the proceedings.

        Further, while it may be true that petitioner initially obtained housing and employment
during the improvement period, petitioner later lost both of those as a result of nonpayment of rent
and her failure to show up for work. Although petitioner was allowed to complete her improvement
period, the evidence before the circuit court demonstrates that her noncompliance spanned several
months. As this Court has held,

               “[a]t 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.” Syllabus point 6, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365
       (1991).

Syl. Pt. 3, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). In short, petitioner’s assertion
that she substantially complied with the improvement period ignores the fact that her lack of
suitable housing, inability to stay employed, failure to complete drug screens, and lack of candor
with the circuit court were not remedied sufficiently to justify the return of the children to her care.

        Finally, based on the evidence of petitioner’s sporadic compliance and, especially, her
failure to attend all of her parenting classes, comply with drug testing, or even remain in regular
contact with the DHHR in the month prior to the dispositional hearing, the circuit court found that
petitioner failed to follow through with the DHHR’s rehabilitative services. Importantly, this
constitutes a situation in which there is no reasonable likelihood the conditions of abuse and
neglect can be substantially corrected in the near future under West Virginia Code § 49-4-
604(c)(3). On appeal, petitioner asserts that the circuit court’s decision to terminate was “improper
when the [p]arent is making substantial progress toward reunification.” We disagree and find that
the circuit court’s order is specific and enumerates several areas where petitioner failed to make
progress as the basis for the termination of petitioner’s parental rights. The circuit court’s findings
are based on substantial evidence that petitioner was never fully compliant in her improvement

                                                   4
period and failed to complete many of the services offered. Moreover, the circuit court found that
termination of petitioner’s parental rights was in the children’s best interests. According to West
Virginia Code § 49-4-604(b)(6), circuit courts may terminate parental rights upon these findings.
Further, we have long held that

                “[t]ermination 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). The record shows that the circuit
court had ample evidence upon which to base these findings, and we decline to disturb them on
appeal.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its June
25, 2019, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: April 6, 2020


CONCURRED IN BY:

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




                                                 5
