                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                  FILED
In re: K.J. and L.J.                                                        September 25, 2017
                                                                                RORY L. PERRY II, CLERK
No. 17-0329 (Mercer County 16-JA-061-MW & 16-JA-062-MW)                       SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Father S.J., by counsel John G. Byrd, appeals the Circuit Court of Mercer
County’s January 13, 2017, order terminating his parental, custodial, and guardianship rights to
K.J. and L.J.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. The guardian ad litem
(“guardian”), Catherine Bond Wallace, 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 terminating
his parental, custodial, and guardianship 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 April of 2016, the DHHR filed an abuse and neglect petition against the parents that
alleged K.J. had twice been admitted to the hospital over concerns that he ingested ADHD
medication. The mother additionally informed the DHHR that petitioner and his family were
substance abusers, although she admitted that she left L.J. in his care while seeking medical
treatment for K.J. After K.J. was discharged from the hospital, the DHHR requested that the
parents bring the child to its offices because of the child’s general hygiene, including a strong
odor and the condition of his car seat. Additionally, the DHHR identified prior instances of
domestic violence involving petitioner. Most recently, petitioner received supervised visitation in
a family court proceeding that ended in January of 2016. According to the individual that
supervised those visits, petitioner was frequently under the influence and was either late or failed
to appear for many visits. Specifically, this supervisor witnessed petitioner fall asleep while
holding the infant.


       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).


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        In April of 2016, the circuit court held a preliminary hearing, during which the guardian
requested that the circuit court permit the DHHR to retain custody of the children over concerns
as to where K.J. obtained the medication that necessitated his medical treatment. The circuit
court found probable cause for the children’s removal and ordered they remain in the DHHR’s
custody.

       In May of 2016, the circuit court granted the guardian’s motion to require the parents to
submit to psychological testing. The following month the circuit court held an adjudicatory
hearing, during which it took judicial notice of the records from petitioner’s prior domestic
violence proceedings. According to the records, petitioner previously threatened to kill the
mother. The circuit court also found that petitioner was a drug addict and likely under the
influence during the hearing. As such, the circuit court found that petitioner neglected the
children by virtue of his substance abuse. The circuit court then granted petitioner a post­
adjudicatory improvement period and directed him to submit to a psychological evaluation.

        In July of 2016, as part of an ongoing domestic violence proceeding, petitioner tested
positive for multiple substances, including amphetamine, methamphetamine, Suboxone, and
marijuana. Thereafter, the circuit court held a status hearing, during which it heard evidence that
petitioner left rehabilitation against doctor’s orders, provided a positive drug screen, and failed to
submit to a psychological evaluation as ordered. Additionally, a summary submitted to the
circuit court in October of 2016 indicated that petitioner made no attempt to contact his
caseworker and that a recent drug screen was positive for Suboxone and marijuana. Thereafter,
the DHHR filed a motion to terminate petitioner’s parental rights.

        In December of 2016, the circuit court held a dispositional hearing. Petitioner did not
attend the hearing, though he was represented by counsel. During the hearing, the DHHR
presented evidence of petitioner’s failure to comply with the terms and conditions of his
improvement period. This included his exit from substance abuse treatment against medical
advice; failed drug screens; his refusal to be evaluated by a psychologist; and his failure to make
himself available for services, among other evidence.2 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

       2
        According to the parties, the parents’ parental, custodial, and guardianship rights to all
the children were either terminated or voluntarily relinquished during the proceedings below.
The children have been permanently placed in a foster home with a goal of adoption therein.
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       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 proceedings below.

        On appeal, petitioner argues that the circuit court failed to impose the least restrictive
dispositional alternative. According to petitioner, termination of only his custodial and
guardianship rights would have constituted the least restrictive dispositional alternative. We do
not agree. According to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to
terminate parental, custodial, and guardianship rights upon findings that there is no reasonable
likelihood the conditions of abuse and neglect can be substantially corrected and that termination
is necessary for the children’s welfare. Here, the circuit court made the necessary findings, based
upon substantial evidence, to support termination of petitioner’s parental, custodial, and
guardianship rights.

       According to West Virginia Code § 49-4-604(c)(3), a situation in which there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes
one in which

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

Petitioner does not argue that he followed through with the reasonable family case plan below. In
support of his appeal, petitioner argues only that there was no evidence that his visits with the
children did not go well or that the DHHR did not feel that the children were safe during the
visits. Petitioner’s argument on appeal, however, ignores his almost total lack of compliance with
the terms and conditions of his improvement period below. At disposition, the DHHR presented
evidence that petitioner failed to follow through with reasonable rehabilitative efforts as set forth
in the terms and conditions of his improvement period. This included petitioner’s failure to
attend substance abuse treatment, submit to a psychological evaluation in order to identify
additional remedial services, and otherwise make himself available for services.

       Moreover, petitioner readily concedes that “it appears [he] may still be addicted to
drugs.” More succinctly, the record shows that petitioner is still addicted to drugs, as he failed
multiple drug screens during the pendency of the proceedings below. In accordance with West
Virginia Code § 49-4-604(c)(1), a situation in which there is no reasonable likelihood the
conditions of abuse and neglect can be substantially corrected includes one in which



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       [t]he abusing parent . . . [has] habitually abused or [is] addicted to alcohol,
       controlled substances or drugs, to the extent that proper parenting skills have been
       seriously impaired and the person . . . [has] not responded to or followed through
       the recommended and appropriate treatment which could have improved the
       capacity for adequate parental functioning . . . .

Petitioner’s argument that there was no evidence that the DHHR believed the children were
unsafe during supervised visits with him is irrelevant. The fact remains that petitioner was
adjudicated for neglecting his children due to his inability to properly care for them because of
his substance abuse. Because of petitioner’s inability to properly care for the children, the DHHR
was required to supervise visits with petitioner instead of permitting him to supervise the
children by himself. Moreover, petitioner took no steps to remedy his substance abuse during the
proceedings and presented no evidence that his condition improved. As such, it is clear that the
circuit court had sufficient evidence upon which to find that there was no reasonable likelihood
petitioner could substantially correct the conditions of abuse and neglect in the near future and
that termination of his parental, custodial, and guardianship rights was necessary for the
children’s welfare.

       We have also 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). Because the record is clear that
the circuit court had ample evidence upon which to base its findings, we find no error in the
termination of petitioners’ parental, custodial, and guardianship rights to the children.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 13, 2017, order is hereby affirmed.

                                                                                        Affirmed.

ISSUED: September 25, 2017

CONCURRED IN BY:

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

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