                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


                                                                                      FILED
In Re: R.M.                                                                         November 26, 2013
                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
No. 13-0696 (Mercer County 12-JA-190)                                              OF WEST VIRGINIA




                                  MEMORANDUM DECISION

        Petitioner Mother, by counsel Natalie N. Hager, appeals the Circuit Court of Mercer
County’s July 8, 2013 order terminating her parental, custodial, and guardianship rights to R.M.
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Angela
Alexander Walters, filed its response in support of the circuit court’s order. The guardian ad
litem, John Earl Williams Jr., filed a response on behalf of the child also supporting the circuit
court’s order. On appeal, petitioner alleges that the circuit court erred in terminating her 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        In October of 2012, the DHHR filed its initial abuse and neglect petition alleging neglect
due to drug abuse by petitioner and the child’s step-father, M.S. The petition also alleged that the
child, R.M., had non-accidental trauma in the form of a cigarette burn on his foot. In December of
2012, the circuit court adjudicated R.M. as neglected and granted petitioner a post-adjudicatory
improvement period. In January of 2013, a federal grand jury indicted petitioner on multiple
counts of distribution of hydromorphone. That same month, the DHHR filed an amended petition
alleging that M.S. had previously had his parental rights to a child terminated in February of 2008
due to sexual abuse of another child in his home at that time.

        In March of 2013, petitioner’s bond was revoked on the drug charge and she was
incarcerated, where she remained throughout the proceedings. She thereafter pled guilty to one
count of distribution of hydromorphone in the United States District Court for the Southern
District of West Virginia in April of 2013 and was later sentenced to eighteen months in federal
prison. In May of 2013, the circuit court held a dispositional hearing and terminated petitioner’s
parental, custodial, and guardianship rights. It is from the resultant order that petitioner appeals.

       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).

         Upon our review, the Court finds no error in the circuit court’s termination of petitioner’s
parental, custodial, and guardianship rights. Petitioner’s sole argument in support of her
assignment of error is that the circuit court should have waited to see if petitioner would be
released from incarceration so as to attend in-patient substance abuse treatment, to which she had
been accepted. The Court does not find this argument persuasive due to petitioner’s unwillingness
to participate in services designed to correct the conditions of neglect. Even after the DHHR filed
its initial petition, it is clear that petitioner continued in her drug abuse and criminal activity. The
record shows that the criminal activity for which petitioner was indicted occurred, in part, after
the initiation of the abuse and neglect proceedings below. Further, the circuit court specifically
found that petitioner “has habitually abused or is addicted to [] controlled substances or drugs to
the extent that her proper parenting skills have been seriously impaired.” The circuit court further
found that, despite being granted a post-adjudicatory improvement period, petitioner failed to
follow through with the recommended treatment that could have improved her parenting abilities.

        Pursuant to West Virginia Code § 49-6-5(b)(1) and (3), these conditions constitute
situations in which there is no reasonable likelihood that the parent can substantially correct the
conditions of abuse or neglect in the near future, which the circuit court found in this matter.
These findings were supported by petitioner’s failure to comply with the terms of her
improvement period, as evidenced by a failed drug screen in March of 2013, sporadic meetings
with her service provider, and her continued criminal activity in relation to controlled substances.
The circuit court further found that termination of petitioner’s parental rights was necessary for
the child’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are instructed to
terminate parental rights upon these findings.

       For the foregoing reasons, we find no error in the decision of the circuit court and its July
8, 2013 order is hereby affirmed.


                                                                                             Affirmed.

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ISSUED: November 26, 2013


CONCURRED IN BY:

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




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