                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In re: C.M.                                                                     FILED
                                                                           November 14, 2016
No. 16-0538 (Mercer County 15-JA-188-DS)                                       RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Mother S.M., by counsel Michael P. Cooke, appeals the Circuit Court of
Mercer County’s April 7, 2016, order that terminated her parental, custodial, and guardianship
rights to C.M.1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel S.L. Evans, filed its response in support of the circuit court’s order. The guardian ad
litem (“guardian”), John E. Williams, Jr., filed a response on behalf of the child also in support
of the circuit court’s order. On appeal, petitioner alleges that the circuit court failed to
acknowledge that her parental rights are a fundamental liberty interest and erred in denying her
motion for a post-adjudicatory improvement period.

        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 November of 2015, the DHHR filed an abuse and neglect petition against petitioner
and the putative father, W.M. In regard to petitioner, the DHHR alleged aggravated
circumstances based on the fact that petitioner’s parental rights to two older children were
involuntarily terminated in two previous abuse and neglect proceedings. According to the
DHHR, those prior terminations were based upon petitioner’s substance abuse.2 In regard to the
instant proceeding, the DHHR received a referral in November of 2015 that, when petitioner
gave birth to C.M., the child exhibited withdrawal symptoms and tested positive for cocaine and
marijuana. According to the DHHR, the child was placed on morphine for the symptoms and
spent fifteen days in the hospital for treatment arising from her exposure to controlled
substances. That same month, petitioner waived her right to a preliminary hearing.

       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
       This Court affirmed both terminations of petitioner’s parental rights. See In re E.M., No.
11-1365, 2012 WL 3116660 (W.Va. March 12, 2012)(memorandum decision).
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        During the adjudicatory hearing in February of 2016, the circuit court heard evidence of
the two prior terminations of petitioner’s parental rights to older children upon conditions of
substance abuse, as well as evidence that the child at issue in the current proceeding was born
addicted to controlled substances. Moreover, the DHHR indicated that petitioner took no efforts
to remedy the conditions of abuse and neglect from the prior proceedings. Additionally,
petitioner admitted to her abuse of marijuana and cocaine during her pregnancy with C.M. and to
a substance abuse problem. Petitioner also admitted to using controlled substances the day before
the adjudicatory hearing. Ultimately, the circuit court adjudicated petitioner as an abusing parent
due to her substance abuse during pregnancy. After adjudication, petitioner moved for a post­
adjudicatory improvement period, which the circuit court took under advisement.

        In March of 2016, the circuit court held a dispositional hearing, during which it denied
petitioner’s motion for an improvement period. In support of its motion to terminate petitioner’s
parental rights, the DHHR offered evidence that she was discharged twice from drug treatment
programs in the prior abuse and neglect proceedings. Additionally, the evidence established that
petitioner was not cooperative with services in those proceedings and that her substance abuse
issues persisted through the present proceeding. Specifically, in the present matter, a DHHR
employee testified that petitioner tested positive for marijuana, Suboxone, and cocaine. In fact,
petitioner failed at least one drug screen between the adjudicatory and dispositional hearings.
One service provider also testified that petitioner fell asleep during visits with the child and that
the provider had to remove the child from petitioner’s arms on one occasion out of fear she
would drop the child. Ultimately, the circuit court terminated petitioner’s parental rights. 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,
       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, the Court finds no error in regard to petitioner’s allegation that the circuit court
failed to recognize that her parental rights are a fundamental liberty interest. Petitioner’s only
argument in support of this assignment of error is that the circuit court violated her liberty

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interest by proceeding to termination of her parental rights without providing any remedial
services. While it is true that this Court has held that parental rights are “a fundamental personal
liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United
States Constitutions,” petitioner’s argument ignores the limitations placed on this liberty interest
and the presence of aggravated circumstances underlying the petition’s filing.

        The DHHR’s petition below was filed on the basis of aggravated circumstances due to
the involuntary termination of petitioner’s parental rights to older children in two previous abuse
and neglect proceedings. Pursuant to West Virginia Code § 49-4-604(b)(7)(C), when a circuit
court considers disposition in an abuse and neglect case, “the [DHHR] is not required to make
reasonable efforts to preserve the family if the court determines . . . [t]he parental rights of the
parent to another child have been terminated involuntarily[.]” As such, it is clear that petitioner’s
argument has no merit, as the circuit court was not required to ensure that the DHHR made
reasonable efforts to preserve the family prior to disposition because of the aggravated
circumstances present. As such, we find no error.

        Finally, the Court finds no error in the circuit court’s denial of petitioner’s motion for a
post-adjudicatory improvement period. In support of this assignment of error, petitioner argues
that she was entitled to an improvement period because she acknowledged her substance abuse
problem, testified that she sought help for the same, and indicated that she would comply with
any services required of her in order to regain custody of her child. Pursuant to West Virginia
Code § 49-4-610(2)(B), a circuit court may grant an improvement period when the parent
“demonstrates by clear and convincing evidence, that the [parent] is likely to fully participate in
the improvement period[.]” While it is true that petitioner testified that she sought assistance for
her substance abuse, the record shows that her efforts amount to little more than completing
forms for entry into a substance abuse program and calling programs to enquire about treatment.
Moreover, the evidence also shows that petitioner did not request treatment for her substance
abuse from any of the service providers involved in her case. Additionally, the circuit court heard
evidence that petitioner was twice discharged from other treatment programs during her prior
abuse and neglect proceedings, including one incident in which petitioner was involuntarily
removed from a program for making threats toward peers and being generally uncooperative.
Specifically, the evidence regarding her noncompliance in her prior abuse and neglect
proceedings established that petitioner simply was not cooperative with services designed to
address her substance abuse. As such, although petitioner testified to her willingness to complete
substance abuse treatment, the circuit court was presented with sufficient evidence of her past
inability to comply with services upon which to deny her an improvement period.

       Moreover, this Court has held as follows:

               “[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).

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Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4. In this case, the circuit court was
presented with evidence that petitioner’s substance abuse persisted over several years and across
three separate abuse and neglect proceedings, despite prior services designed to remedy these
conditions. Additionally, as noted above, due to the nature of the aggravated circumstances, the
circuit court was not required to ensure that the DHHR made reasonable efforts to preserve the
family prior to disposition. As such, we find no abuse of discretion in the circuit court’s denial of
petitioner’s motion for a post-adjudicatory improvement period.

       For the foregoing reasons, we find no error in the circuit court’s April 7, 2016, order, and
we hereby affirm the same.


                                                                                          Affirmed.

ISSUED: November 14, 2016


CONCURRED IN BY:

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




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