                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

In re K.S.-1 and R.S.                                                                FILED
                                                                                  June 12, 2019
No. 19-0136 (Kanawha County 17-JA-97 and 17-JA-98)                               EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA


                               MEMORANDUM DECISION


        Petitioner Mother K.S.-2, by counsel Sandra K. Bullman, appeals the Circuit Court of
Kanawha County’s January 4, 2019, order terminating her parental rights to K.S.-1 and R.S.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M.
Parsley, filed a response in support of the circuit court’s order. The guardian ad litem, W. Jesse
Forbes, filed a response on behalf of the children, also in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in terminating her parental rights without first
granting her additional time to improve and when less-restrictive alternatives were available.

       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.

        The DHHR filed a child abuse and neglect petition against petitioner in February of 2017,
after receiving reports that K.S.-1, then approximately two years old, was wandering alongside the
road and sitting on a porch alone for approximately two hours. The child’s diaper was heavily
soiled, her clothes were filthy, and she was crying and carrying a bottle with spoiled milk. Police
officers arrived at the scene and announced their presence through the front door, which was ajar.
As the officers walked through the home, they observed, in plain view, a variety of pill bottles,
several syringes, a small amount of marijuana, an open bottle of antifreeze, and several other
objects which could be harmful to a child. The officers also found eighteen containers of Propofol,
a hospital grade opiate, within reach of the child. Further, the residence was in deplorable
condition, with food, trash, and clutter strewn throughout the home. The officers eventually located

       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). Additionally, because one of the children and petitioner share the
same initials, we will refer to them as K.S.-1 and K.S.-2, respectively, throughout this
memorandum decision.


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the child’s maternal grandmother, who was acting as guardian, asleep in her bed. Upon awakening
the grandmother, the officers noted that she appeared to be under the influence, was unable to
communicate clearly, and could not answer basic questions about the child. After investigating the
matter, the DHHR learned that petitioner had an extensive Child Protective Services (“CPS”)
history, which included issues with substance abuse. The DHHR alleged that petitioner left her
child with an inappropriate caregiver, did not have a safe or stable home for the children, and was
not sufficiently motivated or organized to provide for the needs of the children on an ongoing
basis. Petitioner waived her preliminary hearing.

        Services were put in place for petitioner, but she failed to comply with the same. While
petitioner checked in to Sheppard House, a rehabilitation program, she left due to “having issues”
with the children’s father. She then checked in to another facility, but was expelled for not
complying with drug screens. Monthly court summaries revealed that petitioner’s visits with the
children went well, but she remained emotionally dependent on others, had not obtained
employment, and continued to abuse substances. In fact, petitioner eventually lost visits with the
children due to testing positive for controlled substances.

        At an adjudicatory hearing held in September of 2017, petitioner stipulated to the
conditions of abuse contained in the petition. The circuit court accepted petitioner’s stipulation,
adjudicated her as an abusing parent, and granted her a post-adjudicatory improvement period.
Thereafter, the DHHR assisted petitioner in entering another rehabilitation program in Huntington,
West Virginia. However, petitioner only stayed one week before leaving the program against
medical advice. Although petitioner attended her parenting and adult life skills classes, she failed
to re-enter treatment or submit to drug screens so that she could visit with the children. Indeed, by
March of 2018, petitioner had still not re-entered treatment and self-reported recent
methamphetamine use.

         The circuit court held a dispositional hearing in June of 2018. Petitioner failed to attend,
but was represented by counsel. The DHHR presented the testimony of a CPS worker, who
testified that petitioner was “given . . . opportunity after opportunity” during the proceedings, yet
failed to meaningfully comply with her improvement period. While petitioner frequently stated
that she wanted to re-enter treatment, she only stayed a maximum of two to three days each time.
Further, petitioner was not consistent in maintaining contact with her service provider and failed
to visit with the children due to her refusal to submit to drug screens. The worker testified “[s]he
has not been compliant for pretty much the entirety of the case.” After hearing evidence, the circuit
court found that there was no reasonable likelihood that petitioner could correct the conditions of
abuse in the near future given her failure to follow through with the family case plan and resulting
inability to rectify the circumstances of abuse. The circuit court also found that the termination of
petitioner’s parental rights was in the children’s best interests. It is from the January 4, 2019,
dispositional order terminating petitioner’s parental rights that she appeals.2

       The Court has previously established the following standard of review:



       The father’s parental rights were also terminated during the proceedings below. The
       2

permanency plan for the children is adoption by the paternal grandparents.
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               “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).

        On appeal, petitioner argues that the circuit court should not have terminated her parental
rights without first granting her “further time for improvement.” While petitioner acknowledges
that she was given opportunities to seek treatment for her substance abuse issues, she argues that
she “obviously needed more time to complete her services.” She states that the children were in
safe placements and, as such, she should have been given more time to pursue treatment. Petitioner
avers that “[i]t can be expected that the nature of [petitioner’s] problems would lead to setbacks”
and that she should have been given more time to address her issues. We disagree.

         We first note that petitioner fails to cite to the record demonstrating that she requested
additional time to seek treatment. Indeed, the record reveals that petitioner failed to attend the
dispositional hearing and made no request for a post-dispositional improvement period or
additional time of any kind. “Our general rule is that nonjurisdictional questions . . . raised for the
first time on appeal, will not be considered.” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va.
818, 821, 679 S.E.2d 650, 653 (2009) (quoting Shaffer v. Acme Limestone Co., Inc., 206 W. Va.
333, 349 n.20, 524 S.E.2d 688, 704 n.20 (1999)).

        In any event, even had petitioner requested more time to comply with services, the circuit
court did not err in terminating petitioner’s parental rights as there was no reasonable likelihood
that petitioner could correct the conditions of abuse in the near future and when termination was
necessary for the children’s welfare. 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. 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 the 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.

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        Petitioner clearly failed to respond to or follow through with rehabilitative efforts designed
to reduce or prevent the abuse and neglect of her children. Petitioner’s compliance with services
was sporadic, at best, and she failed to successfully complete any rehabilitation program.
Testimony established that petitioner was given “opportunity after opportunity” to enter treatment
programs, but only stayed two to three days, at most, before leaving the program against medical
advice. Further, petitioner failed to submit to drug screens, rendering her unable to visit with her
children throughout the duration of the proceedings. “We have previously pointed out that the level
of interest demonstrated by a parent in visiting his or her children while they are out of the parent’s
custody is a significant factor in determining the parent’s potential to improve sufficiently and
achieve minimum standards to parent the child.” In re Katie S., 198 W. Va. 79, 90 n.14, 479 S.E.2d
589, 600 n.14 (1996) (citing Tiffany Marie S., 196 W. Va. at 228 and 237, 470 S.E.2d at 182 and
191; State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 259, 470 S.E.2d 205, 213 (1996)). While
petitioner now claims that she needed more time to enter a rehabilitation program, we note that
service providers offered to assist her in re-entering the program in Huntington, West Virginia, on
numerous occasions, but each time petitioner failed to show up or changed her mind about
attending. Accordingly, the record demonstrates that affording petitioner additional time would
have simply delayed permanency for the children, and we have previously held that “[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.” Cecil T., 228 W. Va. at 91, 717 S.E.2d
at 875, syl. pt. 4, in part (quoting syl. pt. 1, in part, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114
(1980)).

        Further, petitioner argues that because the children were safely placed with their paternal
grandparents, there were less-restrictive alternatives to terminating her parental rights. She insists
that the circuit court could have granted the grandparents guardianship of the children, allowing
her to seek modification in the future should she address her issues. However, we have 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). Given the evidence of
petitioner’s lack of meaningful participation in the underlying proceedings, we agree with the
circuit court’s findings that there was no reasonable likelihood that petitioner could correct the
conditions of abuse in the near future and that termination of her parental rights was necessary for
the children’s welfare. Accordingly, we find that petitioner is entitled to no relief in this regard.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 4, 2019, order is hereby affirmed.

                                                                                            Affirmed.

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ISSUED: June 12, 2019


CONCURRED IN BY:

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




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