                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                   FILED
In re: L.O. and D.O.                                                             May 23, 2016
                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
No. 15-0912 (Kanawha County 15-JA-66, 15-JA-67)                                    OF WEST VIRGINIA




                              MEMORANDUM DECISION
       Petitioner Mother S.O., by counsel Edward L. Bullman, appeals the Circuit Court of
Kanawha County’s August 28, 2015, order terminating her parental rights to eleven-year-old
L.O. and seven-year-old D.O.1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel S.L. Evans, filed its 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 also
in support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in
terminating her parental rights (1) within four months of the petition’s filing, and (2) because
termination was not the least-restrictive dispositional alternative.2

        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 2015, the DHHR filed an abuse and neglect petition in which it alleged that
petitioner abused L.O. and D.O. through her continued intoxication and substance abuse and that
domestic violence occurred in the home between petitioner and one of the children’s fathers. In
the petition, the DHHR also noted that petitioner had a prior Child Protective Services (“CPS”)
case in 2012 after she was involved in a vehicular accident while driving under the influence


       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). Further, L.O. and D.O. have a half-sibling, A.S., who is not
petitioner’s biological child, and, as such, is not at issue in this appeal.
       2
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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with the children in the vehicle. At that time, petitioner successfully completed DHHR’s parental
services, and the case was closed.

        In April of 2015, the circuit court held a preliminary hearing. At the conclusion of that
hearing, the circuit court ordered that the temporary legal custody of the children remain with the
DHHR pending further proceedings. Immediately following the hearing, petitioner was ordered
to submit to a drug screen. The circuit court further ordered the DHHR to provide petitioner with
rehabilitative services, including random drug screens.

        In May of 2015, the circuit court held an adjudicatory hearing. At the outset of that
hearing, it was revealed that petitioner tested positive on the April drug screen for oxymorphone,
methamphetamine, amphetamine, and oxycodone. Petitioner then stipulated to domestic violence
in the home that caused the children emotional harm. The circuit court accepted that stipulation
and found petitioner to be an abusing parent. The circuit court also ordered services to continue,
including random drug screens. The circuit court also expressly prohibited her from using
Suboxone as a form of drug treatment. Petitioner was then ordered to submit to another drug
screen immediately following the hearing. When petitioner refused, the circuit court had her
detained until such time as she provided a drug screen sample. It appears that she complied with
the circuit court’s order soon thereafter.

        In July of 2015, the circuit court held a dispositional hearing. At the outset of that
hearing, it was revealed that petitioner tested positive on the May drug screen for marijuana,
methamphetamine, amphetamine, alpha-hydroxyalprazolm, and buprenorphine (Suboxone).
Additionally, the evidence established that petitioner had failed to submit to random drug
screening since April of 2015. Petitioner then testified as to her efforts to seek and complete
substance abuse treatment. Petitioner explained that she had entered an inpatient treatment
program in June of 2015 and was scheduled to successfully complete that program in late July of
2015. Following this testimony, the circuit court continued the dispositional hearing to permit
petitioner “enough opportunity to prove she can do it if she can.”

        Ten days after the first dispositional hearing, the DHHR filed a motion to schedule a final
dispositional hearing. In that motion, the DHHR alleged that petitioner returned to the inpatient
treatment program following the first dispositional hearing, packed her belongings, and abruptly
left that facility. The DHHR claimed that petitioner did not return at any time thereafter to
complete the program.

        In August of 2015, the circuit court held a final dispositional hearing. The circuit court
found that petitioner habitually abused controlled substances and failed to follow through with
reasonable rehabilitative efforts. By order entered on August 27, 2015, the circuit court
terminated petitioner’s parental rights to the children on the grounds that there was no reasonable
likelihood that the conditions of abuse could be substantially corrected and the children’s welfare
required termination. This appeal followed.

       The Court has previously established the following standard of review:




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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). Further, our case law is clear that
“in the context of abuse and neglect proceedings, the circuit court is the entity charged with
weighing the credibility of witnesses and rendering findings of fact.” In re Emily, 208 W.Va.
325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478,
525 S.E.2d 669 (1999)); see also Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d
531, 538 (1997) (stating that “[a] reviewing court cannot assess witness credibility through a
record. The trier of fact is uniquely situated to make such determinations and this Court is not in
a position to, and will not, second guess such determinations.”). It should be noted that petitioner
frames her discussion of the issues in this matter as one, undivided argument. However, as these
grounds are distinct, we address them separately in this memorandum decision.

        On appeal, petitioner first argues that the circuit court erred in terminating her parental
rights to the children in a proceeding that remained pending for only four months.3 Petitioner
asserts that the timeframe of this proceeding was insufficient for her to correct the conditions at
issue, particularly her substance abuse problem, which often take significant time to overcome.
Notably, however, petitioner does not argue that the circuit court violated any of the statutory
time periods set forth in Chapter 49 of the West Virginia Code for child abuse and neglect
proceedings. It is clear from our review of the record on appeal that the circuit court followed
that statutory timeframe, which is rigid by design in an effort to establish permanency for
children with all due haste. While those time periods may be extended in certain circumstances,
and routinely are extended to grant parents improvement periods, the circuit court generally has
the discretion to determine when, or if, to extend those time periods. Based on our review of this
issue, we find no support for petitioner’s argument that the circuit court erred in maintaining the
time periods set forth by statute for these types of proceedings.

       Petitioner’s second assignment of error is that the circuit court erred in terminating her
parental rights because termination was not the least-restrictive dispositional alternative.
Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are required to terminate

       3
        Although petitioner argues that the proceedings below were resolved in four months, it
appears that the proceedings were pending for more than five months from the petition’s filing
on March 20, 2015, until the circuit court’s final order entered on August 28, 2015.
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parental rights when there is no reasonable likelihood that the conditions of abuse or neglect can
be substantially corrected in the near future and when necessary for the welfare of the children.
West Virginia Code §§ 49-4-604(c)(1) and (3) provide that no reasonable likelihood that the
conditions of abuse or neglect can be substantially corrected exists when

              (1) The 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 or persons have not responded to or
       followed through the recommended and appropriate treatment which could have
       improved the capacity for adequate parental functioning;

               ...

               (3) The abusing parent . . . [has] not responded to or followed through
       with a reasonable family case plan or other rehabilitative efforts[.]

Further, we have explained that “[t]ermination . . . may be employed without the use of
intervening less restrictive alternatives when it is found that there is no reasonable likelihood . . .
that conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 7, in part, In re Katie
S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

        Here, it is clear that petitioner failed to comply with the circuit court’s orders and
continued to habitually abuse controlled substances as evidenced by her multiple failed drug
screens. In this, her second proceeding related to the abuse and neglect of children, petitioner
failed to follow through with the services provided to her and actively avoided inpatient
substance abuse treatment by willfully abandoning her treatment program prior to its completion.
Based on these circumstances, the evidence clearly established that there was no reasonable
likelihood that petitioner could substantially correct the conditions at issue in the near future and
that termination was necessary for the children’s welfare. Pursuant to West Virginia Code § 49­
4-604, circuit courts are directed to terminate parental rights upon such findings. Therefore,
given the circumstances of this case, no less-restrictive dispositional alternatives were necessary,
and the circuit court committed no error in terminating petitioner’s parental rights.

       For the foregoing reasons, we find no error in the circuit court’s August 28, 2015, order,
and we hereby affirm the same.


                                                                                            Affirmed.

ISSUED: May 23, 2016


CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis

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Justice Brent D. Benjamin

Justice Margaret L. Workman

Justice Allen H. Loughry II





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