                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS

                                                                                    FILED
                                                                                 February 11, 2013
In Re: K.B. and K.B.                                                          RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

                                                                                OF WEST VIRGINIA

No. 12-0865 (Webster County 11-JA-62 and 11-JA-63)


                                 MEMORANDUM DECISION

       Petitioner Mother filed this appeal, by counsel Christopher Moffatt, from the Circuit
Court of Webster County, which terminated Petitioner Mother’s parental rights by order entered
on June 25, 2012. The guardian ad litem for the children, Joyce Helmick Morton, has filed a
response on behalf of the children supporting the circuit court’s order. The Department of Health
and Human Resources (“DHHR”), by its attorney William Bands, also filed a response in
support of termination.

       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 December of 2011, DHHR filed the petition of the instant case after both parents had
to be transported by ambulance to the hospital after using methamphetamines. Upon
investigation, drug paraphernalia was found in the home within reach of the children. Petitioner
Mother was granted a twelve-month rehabilitation period on the condition that she complete
inpatient rehabilitation. She left before the program five months early and, on the day of the
dispositional hearing, she tested positive for drugs. The circuit court entered its termination order
in June of 2012. Petitioner Mother appeals this order.

        On appeal, Petitioner Mother argues that the circuit court erred in terminating her
parental rights when there was evidence that it was reasonably likely that she could complete her
rehabilitation period, there were less restrictive alternatives to termination, and there exists a
bond between her and her children. She argues that she has admitted to her drug addiction and
only left rehabilitation because her mother was dying, has expressed her willingness to reenter
rehabilitation and terminate her relationship with the children’s father, and has shown her ability
to be compliant by only testing positive for drugs one time after the petition was filed. Petitioner
Mother argues that the circuit court erred in not taking these factors into account when it
terminated her rehabilitation period after less than three months and when she has a bond with
her children.

       The children’s guardian ad litem responds and argues that the circuit court did not err in
terminating Petitioner Mother’s parental rights. On the day of the dispositional hearing,


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Petitioner Mother tested positive for both methamphetamines and amphetamines. Even though
her other drug screens were negative, her voluntary exit from the rehabilitation center five
months early and her positive screens on the day of the dispositional hearing led Petitioner
Mother’s Child Protective Services (“CPS”) worker to believe that Petitioner Mother would not
be able to successfully complete rehabilitation. The guardian argues that Petitioner Mother’s
explanation that she left to care for her dying mother was merely an excuse, as indicated by
Petitioner Mother’s testimony that she only called her mother “occasionally” in the time between
her exit from rehabilitation and her mother’s death. Respondent DHHR submitted a response
joining in, and concurring with, the guardian ad litem’s response in support of termination.

       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 in the circuit court’s termination of petitioner’s
parental rights. Under West Virginia Code § 49-6-12, circuit courts have the discretion to grant,
deny, or terminate an improvement period. The Court finds that the circuit court considered any
emotional bond between petitioner and children and was presented with sufficient evidence upon
which it based findings that there was no reasonable likelihood that the conditions of abuse and
neglect could be substantially corrected in the near future and that termination was necessary for
the children’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed
to terminate parental rights upon these findings.

      For the foregoing reasons, we affirm the circuit court’s order terminating Petitioner
Mother’s parental rights to the subject children.


                                                                                         Affirmed.




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ISSUED: February 11, 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




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