                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


In re A.C. and D.C.
                                                                                     FILED
                                                                                   May 14, 2018
No. 17-1094 (Kanawha County 16-JA-179 and 180)                                   EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 


                                                          MEMORANDUM DECISION
        Petitioner Mother J.C., by counsel Edward L. Bullman, appeals the Circuit Court of
Kanawha County’s November 21, 2017, order terminating her parental rights to A.C. and D.C.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
(“guardian”), Jennifer R. Victor, 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 her
parental rights, instead of imposing a less-restrictive dispositional alternative, and denying her
post-termination visitation with the children.

        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 March of 2016, the DHHR filed an abuse and neglect petition that alleged child D.C.
was born with numerous controlled substances in her system, including “high levels” of cocaine
and methamphetamine. The petition further alleged that petitioner tested positive for
amphetamine, methamphetamine, and cocaine at the time of birth. Additionally, the DHHR
alleged that, five minutes after the child’s birth, petitioner checked herself out against medical
advice to smoke. After an extended period, petitioner returned “extremely high.” According to
the petition, when child A.C. was born in 2011, that child was addicted to drugs and, thereafter,
petitioner “absconded from” services offered by Child Protective Services. Further, the petition
alleged that petitioner admitted to a long history of substance abuse, including twelve years of
methamphetamine use. Finally, the petition alleged that petitioner failed to properly provide the
children with necessary food, clothing, supervision, and housing. Thereafter, 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).
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        In March of 2016, the circuit court held an adjudicatory hearing. Petitioner testified on
her own behalf and admitted to a history of substance abuse and the presence of drugs in her
system and that of D.C. at the time of the child’s birth. As such, the circuit court adjudicated
petitioner as an abusing parent. The circuit court further granted petitioner’s motion for a post-
adjudicatory improvement period. Pursuant to the terms of the improvement period, petitioner
was required to participate in long-term substance abuse treatment, random drug screens,
parenting education, adult life skills education, and supervised visits with her children.
Thereafter, the circuit court held a series of review hearings and extended petitioner’s post-
adjudicatory improvement period. During this period, petitioner initially entered a residential
substance abuse treatment program through the Renaissance Program at the Prestera Center,
although she was discharged from the program in October of 2016 for violation of the program’s
rules. She then entered a second substance abuse treatment program before eventually entering a
third substance abuse program at Rea of Hope.

         In June of 2017, the parties appeared for a dispositional hearing. Petitioner moved for a
post-dispositional improvement period, and both the guardian and the DHHR recommended
granting the same. After finding that she substantially complied with the terms and conditions of
her post-adjudicatory improvement period, the circuit court granted petitioner’s motion for a
post-dispositional improvement period and required that she continue her substance abuse
treatment with Rea of Hope, obtain and maintain appropriate housing and verifiable
employment, participate in random drug screens, and participate in unsupervised and overnight
visitation with the children.

         In August of 2017, the program care manager at Rea of Hope sent the circuit court a letter
that indicated that petitioner would not be attending Phase II of the program. According to the
letter, despite petitioner’s initial compliance with the program’s requirements, the program care
manager “noticed a significant change in her overall attitude” in the weeks preceding the
correspondence. As a result, petitioner “chose[] to move back to her previous home” and was
officially discharged. Moreover, according to a DHHR court summary, petitioner had “not been
fully compliant” since moving back to her prior residence. According to the summary, petitioner
stopped complying with drug screens and ceased communication with the DHHR as of August
18, 2017. During her final meeting with DHHR personnel, it was suspected that petitioner was
under the influence, but this was never confirmed due to her lack of screening. The DHHR also
indicated that petitioner stopped calling the children, as she had consistently done in the past.
Accordingly, the DHHR recommended termination of petitioner’s parental rights. At a review
hearing in September of 2017, which petitioner did not attend, the circuit court terminated
petitioner’s post-dispositional improvement period due to her noncompliance.2

        In October of 2017, the circuit court held a dispositional hearing. Petitioner failed to
attend this hearing, but was represented by counsel. The circuit court found that petitioner failed
to substantially complete her post-dispositional improvement period. The circuit court further
found that there was no reasonable likelihood petitioner could substantially correct the conditions
of abuse and neglect and that termination was necessary for the children’s welfare. As a result,

                                                            
              2
                  Petitioner was represented by counsel at this hearing.


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the circuit court terminated petitioner’s parental rights.3 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). Upon our review, the Court finds
no error in the proceedings below.

        First, the Court finds no error in the circuit court’s refusal to impose a less-restrictive
dispositional alternative. On appeal, petitioner predicates this assignment of error upon her
argument that she successfully complied with the services offered and reached a level of
functioning sufficient to care for her children. We disagree. While petitioner is correct that she
complied with the terms and conditions of her improvement period for an extended period and
demonstrated improvement in certain areas, petitioner’s argument ignores the fact that, prior to
the conditions of abuse and neglect being remedied, she entirely abandoned the proceedings. The
record shows that in August of 2017, petitioner had her last contact with the DHHR during a visit
to her home in which the DHHR employee suspected petitioner was under the influence. This
could not be confirmed, however, because petitioner refused to submit to any drug screens
during the final months of the proceedings, despite the fact that her failure to comply with said
screenings precluded her from exercising visitation with the children.

              We have previously held as follows:

                     “At the conclusion of the improvement period, the court shall review the
              performance of the parents in attempting to attain the goals of the improvement
              period and shall, in the court’s discretion, determine whether the conditions of the
              improvement period have been satisfied and whether sufficient improvement has
              been made in the context of all the circumstances of the case to justify the return


                                                            
              3
        The children’s respective fathers’ parental rights were also terminated below. According
to respondents, the permanency plan for the children is adoption in the current foster home.
                                                               3

 
       of the child.” Syl. Pt. 6, In Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365
       (1991).

Syl. Pt. 3, In re B.H., 233 W.Va. 57, 754 S.E.2d 743 (2014). At the conclusion of petitioner’s
post-dispositional improvement period, the circuit court specifically found that she failed to
substantially comply with the terms and conditions thereof. On appeal, petitioner fails to
establish that this finding was an abuse of discretion, especially in light of the overwhelming
evidence of petitioner’s total lack of compliance with any services from August of 2017 until
disposition. Further, while petitioner argues that she substantially corrected the conditions of
abuse and neglect, we do not agree. As noted above, after petitioner chose to discharge from her
substance abuse treatment instead of moving on the next phase, a DHHR worker suspected
petitioner was under the influence and was ultimately unable to determine if this was the case
because of petitioner’s willful refusal to submit to drug screens. As such, there is simply no
evidence that petitioner remedied the conditions of abuse and neglect such that she should have
been entitled to the children’s return. On the contrary, this evidence supports the circuit court’s
termination of petitioner’s parental rights.

        Based on the evidence outlined above, the circuit court specifically found that there was
no reasonable likelihood petitioner could substantially correct the conditions of abuse and
neglect and that termination of her parental rights was 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 in the near future
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;
 
As set forth above, petitioner failed to follow through with the case plan and other rehabilitative
efforts when she abandoned the proceedings before remedying the conditions of abuse and
neglect. Further, West Virginia Code § 49-4-604(b)(6) permits circuit courts to terminate
parental rights upon these findings. Moreover, we have held as follows:

               “Termination 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). Accordingly, we find no error
in the circuit court’s termination of petitioner’s parental rights.



                                                4

 
       Finally, the Court finds no error in the circuit court’s denial of post-termination visitation.
According to petitioner, the circuit court should have granted post-termination visitation because
she had a bond with the children and visits went well. We do not agree.

                “When parental rights are terminated due to neglect or abuse, the circuit
       court may nevertheless in appropriate cases consider whether continued visitation
       or other contact with the abusing parent is in the best interest of the child. Among
       other things, the circuit court should consider whether a close emotional bond has
       been established between parent and child and the child’s wishes, if he or she is of
       appropriate maturity to make such request. The evidence must indicate that such
       visitation or continued contact would not be detrimental to the child’s well being
       and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
       446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002). Here, the record shows that
visitation was not in the children’s best interest. Petitioner failed to remedy the conditions of
abuse and neglect and further failed to exercise visitation with the children for an extended
period because she refused to submit for drug screens. Further, the DHHR reported that A.C.
suffered from behavioral issues as a result of visitations and that the child’s “behavior . . .
improved since the visits . . . stopped.” Accordingly, we find no error in the circuit court’s denial
of post-termination visitation.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 21, 2017, order is hereby affirmed.


                                                                                           Affirmed.

ISSUED: May 14, 2018


CONCURRED IN BY:

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




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