                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



In Re: T.L. and T.W.                                                              FILED
                                                                                November 26, 2013
No. 13-0650 (Preston County 12-JA-21 and 12-JA-22)                           RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA


                                MEMORANDUM DECISION

        Petitioner Mother filed this appeal, by counsel Richard M. Gutmann, from the Circuit
Court of Preston County, which terminated her parental rights to the subject children by order
entered on May 14, 2013. The guardian ad litem for the children, Chaelyn W. Casteel, filed a
response in support of the circuit court’s order. The Department of Health and Human Resources
(“DHHR”), by its attorney Lee A. Niezgoda, has also filed a response in support of the circuit
court’s order. Petitioner argues that the circuit court erroneously terminated her parental rights
without sufficient evidence and that a less restrictive alternative to termination was 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.

        In July of 2012, the DHHR filed the petition that initiated the instant case. The petition
alleged that petitioner abused and neglected both children, who were then eight and two years
old, due to her drug abuse. These allegations specified that petitioner’s drug abuse resulted in
sporadic visitation with T.L. and visits with T.L. to inappropriate places, and caused T.W. to test
positive for opiates at birth. The petition also included that petitioner admitted to using heroin
during the first five months of her pregnancy with T.W. and that petitioner was previously
charged with drug possession and other related misdemeanors.

       The circuit court held adjudicatory hearings in August and September of 2012. Petitioner
appeared for the first hearing, but failed to appear for the remaining hearings. At the last
adjudicatory hearing and at the dispositional hearing, the director of Preston County Community
Corrections testified that petitioner had recently tested positive for benzodiazepines,
cannabinoids, cocaine, and opiates, but that petitioner denied using those drugs. The circuit court
adjudicated petitioner as abusive and neglectful and ordered that petitioner take steps to find an
appropriate drug rehabilitation program.

       Following the dispositional hearing, the circuit court found that petitioner habitually
abused controlled substances/drugs to the extent that her parenting skills were seriously
impaired. The circuit court also found that petitioner did not respond to, or follow through with,
the recommended treatment, which could have improved the capacity for adequate parental


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functioning. The circuit court terminated petitioner’s parental rights to the subject children
without post-termination visitation. Petitioner now brings this appeal.

       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).

        Petitioner’s sole argument on appeal is that the circuit court erred in terminating her
parental rights where insufficient evidence was presented to establish by clear and convincing
evidence that the termination was necessary for the children’s welfare. She also asserts that this
evidence was insufficient to conclude that termination was in the best interests of the children
because an appropriate less drastic measure existed to ensure the children’s welfare: their
placement with relatives. Petitioner argues that an alternative disposition short of termination
would have preserved her parental rights to the children while also protecting their best interests.

        Upon our review of the record, we find no error or abuse of discretion by the circuit
court. We bear in mind the following:

       “[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, and this is particularly applicable to children under the age of three
       years who are more susceptible to illness, need consistent close interaction with
       fully committed adults, and are likely to have their emotional and physical
       development retarded by numerous placements.” Syl. Pt. 1, in part, In re R.J.M.,
       164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 4, 228 W.Va. 89, 717 S.E.2d 873 (2011). “‘Although parents have substantial rights that
must be protected, the primary goal in cases involving abuse and neglect, as in all family law
matters, must be the health and welfare of the children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79,
479 S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013). The
record includes a copy of the circuit court’s adjudicatory order, which made thorough findings of
petitioner’s abuse and neglect of her children. A number of witnesses testified to petitioner’s


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continued drug abuse and lack of care and contact with her children. For instance, petitioner’s
sister testified that she observed petitioner using drugs while pregnant. T.L.’s father testified
regarding petitioner’s sporadic and infrequent contact with T.L. and the resulting negative
emotional impact on T.L. Our review of the dispositional hearing transcript indicates that
petitioner made no positive improvements throughout her case to warrant retention of her
parental rights. The record and the circuit court’s findings support its conclusions that there was
no reasonable likelihood to believe that conditions of abuse and neglect could be substantially
corrected in the near future, and that termination was necessary for the children’s welfare.
Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental
rights upon such findings.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

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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