                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                   FILED
In re D.C. and B.C.                                                            January 17, 2020
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
No. 19-0496 (Mason County 18-JA-24 and 18-JA-25)                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION


        Petitioner Mother T.C., by counsel Tanya Hunt Handley, appeals the Circuit Court of
Mason County’s April 8, 2019, order terminating her parental rights to D.C. and B.C.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, R. Michael Shaw Jr., 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 imposing a
less-restrictive dispositional alternative.

       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 alleging
her child was born suffering from neonatal withdrawal symptoms due to her knowing and illegal
drug use while pregnant. Specifically, the child was born with methamphetamine, morphine, and
marijuana in her system. Additionally, petitioner admitted to hospital staff that she abused heroin
daily. Further, the DHHR alleged that petitioner used heroin as recently as June 15, 2018, had no
permanent home, had two prior child abuse and neglect proceedings involving her older child, and
that her older child was also born drug-exposed.



       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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        After petitioner waived her right to a preliminary hearing, she then stipulated to the
allegations in the petition at the adjudicatory hearing in August of 2018. The circuit court accepted
the stipulation and adjudicated petitioner as an abusing parent.

        In September of 2018, the circuit court accepted the DHHR’s case plan, granted petitioner
a post-adjudicatory improvement period, and set forth the terms of her post-adjudicatory
improvement period requiring her to participate in individualized parenting sessions, adult life
skills sessions, random drug screens, inpatient rehabilitation, and supervised visitations with the
children. Thereafter, petitioner failed to regularly drug screen, stay in contact with the DHHR
service provider, seek inpatient rehabilitation, or attend several status hearings. The DHHR alleged
that petitioner exercised one visit with the children, but the visit was terminated early because she
appeared to be under the influence of drugs. On November 26, 2018, the circuit court held a review
hearing wherein the DHHR advised that petitioner was “not doing well” and that it intended to file
a motion to revoke her improvement period.

         In December of 2018, the DHHR filed a motion to terminate petitioner’s improvement
period as well as a motion to terminate her parental rights. In its motion to revoke petitioner’s
improvement period, the DHHR alleged that petitioner failed to visit with her children since
September of 2018, submit to drug screens, follow through with inpatient rehabilitation, or keep
in contact with the DHHR and its service providers. In its motion to terminate petitioner’s parental
rights, the DHHR alleged that she failed to comply with the terms of her improvement period and
had not made any significant changes to her behavior in order to ensure the safety of the infant
children. At a hearing in January of 2019, petitioner moved to continue the portion of the hearing
concerning her improvement period arguing that she needed more time to “work with services.”
The circuit court continued the hearing to February 4, 2019, wherein the DHHR requested a
continuance citing the need to hold another multidisciplinary team (“MDT”) meeting “to discuss
options prior to the next hearing.” According to the DHHR, petitioner was to report to a
rehabilitation center the same day. Thereafter, an MDT meeting was held and petitioner failed to
appear. The team members had no knowledge of petitioner’s whereabouts or whether she reported
to inpatient rehabilitation. On February 28, 2019, the circuit court held a hearing wherein
petitioner’s counsel moved to continue the portion of the hearing concerning petitioner’s
improvement period arguing that counsel needed time to determine the status of petitioner’s
rehabilitation. The circuit court granted the continuance.

        In March of 2019, the circuit court held a hearing upon the State’s motion to terminate
petitioner’s post-adjudicatory improvement period and motion to terminate petitioner’s parental
rights. Petitioner failed to appear for the hearing, but was represented by counsel. To argue for
termination, the DHHR relied upon prior testimony that petitioner had (1) only visited the children
once and was under the influence of drugs at the visit, (2) not regularly drug tested, (3) not
completed inpatient rehabilitation, and (4) not complied with any other terms and conditions of
her improvement period. Ultimately, the circuit court found that petitioner did not substantially
comply with the terms of her improvement period and revoked it. Moreover, the circuit court found
that there was no reasonable likelihood that the conditions of abuse and neglect could be
substantially corrected and that termination of parental rights was necessary for the welfare of the




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children. Accordingly, the circuit court terminated petitioner’s parental rights in its April 8, 2019,
order. It is from this order petitioner now appeals.2

       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).

        On appeal, petitioner’s overarching argument is that the circuit court erred in terminating
her parental rights without imposing a less-restrictive dispositional alternative pursuant to West
Virginia Code § 49-4-604(b)(5) (2019).3 In support, she first argues that the circuit court erred in
finding that there was no reasonable likelihood that the conditions of abuse and neglect could be
corrected “when it was expressed on multiple occasions that she was attempting to get into an in-
patient rehabilitation center.”

       According to West Virginia Code § 49-4-604(c)(3), a situation in which there is “[n]o
reasonable likelihood that conditions of neglect or abuse 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


       2
       The father of D.C. is deceased and the father of B.C. had his parental rights terminated.
According to the parties, the permanency plan for the children is adoption in their current foster
placement.
       3
           Pursuant to West Virginia Code § 49-4-604(b)(5),

       [u]pon a finding that the abusing parent or battered parent or parents are presently
       unwilling or unable to provide adequately for the child’s needs, [a circuit court
       may] commit the child temporarily to the care, custody, and control of the state
       department, a licensed private child welfare agency, or a suitable person who may
       be appointed guardian by the court.
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       evidenced by the continuation or insubstantial diminution of conditions which
       threatened the health, welfare or life of the child.

        Shortly after petitioner was granted a post-adjudicatory improvement period and signed
her case plan, she failed to regularly drug screen, stay in contact with her DHHR service provider,
seek inpatient rehabilitation, or regularly attend hearings. Petitioner appeared under the influence
of drugs at her only visit with the children. The record further establishes that petitioner’s complete
noncompliance continued until the dispositional hearing. The overwhelming evidence before the
circuit court was that petitioner failed to successfully complete any aspect of her improvement
period and failed to respond to or follow through with rehabilitative efforts designed to reduce or
prevent the abuse and neglect of her children. Although petitioner argues that she expressed on
multiple occasions that she was attempting to get into an inpatient rehabilitation program, the
record provides otherwise. Instead, the evidence is that petitioner made one attempt to enroll into
inpatient rehabilitation as discussed at the February 24, 2018, hearing. Immediately thereafter,
petitioner failed to stay in contact with her DHHR caseworker or her counsel. The circuit court
then granted several continuances of petitioner’s dispositional hearing to allow the DHHR and
petitioner’s counsel to locate her and determine the status of her admission to rehabilitation. At no
point was evidence provided to the circuit court that petitioner had, in fact, enrolled in or
participated in drug treatment, and petitioner never explained why she failed to enroll. Given the
evidence of petitioner’s complete lack of meaningful participation in the underlying proceedings
and her chronic history of illegal substance abuse, we agree with the circuit court’s findings that
there was no reasonable likelihood that petitioner could correct the conditions of abuse or neglect
in the near future and that termination of her parental rights was necessary for the children’s
welfare.

       Second, petitioner argues that the children’s placement with family warranted imposition
of a less-restrictive dispositional alternative such as termination of her custodial rights. We
disagree.

       We reiterate our holding 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 this Court’s findings
above, we find that the circuit court did not err in terminating petitioner’s parental rights without
imposing a less-restrictive dispositional alternative.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its April
8, 2019, order is hereby affirmed.
                                                                                           Affirmed.

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ISSUED: January 17, 2020


CONCURRED IN BY:

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




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