                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                  FILED
                                                                                May 23, 2016
In re: S.B., J.B., and C.M.                                                     RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
No. 15-1016 (Braxton County 14-JA-71, 14-JA-72, & 14-JA-73)


                              MEMORANDUM DECISION
        Petitioner Mother S.B., by counsel Daniel K. Armstrong, appeals the Circuit Court of
Braxton County’s October 14, 2015, order terminating her parental rights to one-year-old S.B.,
three-year-old J.B., and seven-year-old C.M. The West Virginia Department of Health and
Human Resources (“DHHR”), by counsel Lee Niezgoda, filed its response in support of the
circuit court’s order and a supplemental response. The guardian ad litem (“guardian”), David
Karickhoff, filed a response on behalf of the children also in support of the circuit court’s order
and also filed a supplemental response. On appeal, petitioner argues that the circuit court erred in
denying the DHHR’s motion to withdraw its motion to terminate her parental rights and extend
her improvement period. Petitioner also argues that the circuit court erred in terminating her
parental rights without a proper family case plan and improperly relied upon evidence that was
not admitted during the dispositional hearing.1

        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 October of 2014, the DHHR filed an abuse and neglect petition against petitioner
alleging that she abused drugs. In support of the petition, the DHHR alleged that petitioner tested
positive for opiates on October 22, 2014, and gave birth to S.B., who also tested positive for
opiates. Furthermore, petitioner admitted that she ingested one hydrocodone approximately two
days prior to the birth of S.B.2 In November of 2014, the circuit court held an adjudicatory
hearing during which petitioner stipulated to certain allegations in the amended petition.
Specifically, petitioner admitted that she and S.B. tested positive for opiates on October 22,

       1
         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.
       2
        The DHHR filed an amended petition for abuse and neglect adding two additional
children and additional allegations that are not at issue in this memorandum decision.
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2014, that she tested positive for marijuana on July 9, 2014, and that she took one hydrocodone
pill approximately two days before S.B. was born. Accordingly, the circuit court found that
petitioner was an “abusive and neglectful” parent.3

        Thereafter, the circuit court held a dispositional hearing in January of 2015, during which
it heard testimony from a Child Protective Services (“CPS”) worker.4 Based upon the worker’s
testimony, the circuit court granted petitioner a six-month improvement period. The terms and
conditions of petitioner’s improvement period required her, in part, to participate in substance
abuse treatment, to submit to random drug and alcohol screens, and to remain drug and alcohol
free. After approximately five months of services, the DHHR filed a court summary which
recommended that the children be transitioned back into petitioner’s care because she “has
complied with the terms and condition of her improvement period” and has screened negative on
all drug tests.5 Subsequently, the DHHR filed a second court summary which stated that the
“DHHR would not object to an extension of the improvement period, if the court deems
appropriate,” because petitioner produced one positive and one diluted drug screen.
Consequently, the DHHR filed a motion to terminate petitioner’s parental rights based upon her
single positive drug screen.

         In September of 2015, the circuit court held a dispositional hearing. A CPS worker
testified that despite its motion to terminate petitioner’s parental rights, the DHHR was no longer
seeking termination because petitioner was compliant with services, is willing and able to remain
drug free, entered outpatient drug therapy on her own volition, has a strong bond with the
“children,” continues to make improvements, and has remained drug-free since her lone positive
test, with the exception of one diluted screen on August 7, 2015. Petitioner testified that she was
attending Alcohol and Narcotics Anonymous meetings and learning from her outpatient drug
treatment. At the conclusion of the hearing, the circuit court found that petitioner was unwilling
to cooperate with services and terminated her parental rights. This appeal followed.

       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,

       3
         The circuit court did not enter an adjudicatory order until June 22, 2015. We remind
circuit courts that pursuant to Rule 27 of the Rules of Procedure for Child Abuse and Neglect
Proceedings, “[t]he [circuit] court shall enter an order of adjudication, including findings of fact
and conclusions of law, within ten (10) days of the conclusion of the hearing[.]”
       4
         The parties did not include a copy of the transcript from the dispositional hearing as part
of the appendix record.
       5
           Thereafter, the children were physically placed back in petitioner’s care.

                                                   2


       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 argues that the circuit court erred in denying the DHHR’s motion
to withdraw its motion to terminate her parental rights. Stated another way, petitioner argues that
the circuit court erred in denying her motion to extend her improvement period. West Virginia
Code § 49-4-610(6) provides that “[a] [circuit] court may extend any improvement period . . .
when the [circuit] court finds that the respondent has substantially complied with the terms of the
improvement period[.]”6 We have also held that the word “may” is permissive and connotes
discretion. See Gebr. Eickhoff Maschinenfabrik Und Eisengieberei mbH v. Starcher, 174 W.Va.
618, 626 n. 12, 328 S.E.2d 492, 500 n. 12 (1985) (“An elementary principle of statutory
construction is that the word ‘may’ is inherently permissive in nature and connotes discretion.”
(citations omitted)).

        Upon review of the record, we find no error in the circuit court’s denial of extending
petitioner’s improvement period. In this case, the record establishes that petitioner failed to meet
her burden for an extension of her improvement period. It is undisputed that petitioner failed one
drug test, shortly after the DHHR placed the children back in her care and produced one diluted
drug screen in violation of the terms and conditions of her improvement period. For these
reasons, it was not error for the circuit court to deny petitioner an extension of her improvement
period.

       Next, petitioner argues that the circuit court erred in terminating her parental rights
without filing a proper family case plan pursuant to Rule 28(d) of the Rules of Procedure for
Child Abuse and Neglect Proceedings.7 With regard to the Rules of Procedure for Child Abuse
and Neglect Proceedings, this Court has stated that

               “[w]here it appears from the record that the process established by the
       Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes
       for the disposition of cases involving children [alleged] to be abused or neglected
       has been substantially disregarded or frustrated, the resulting order . . . will be
       vacated and the case remanded for compliance with that process and entry of an
       6
          Because the dispositional hearing in this matter took place on September 3, 2015, which
is after the day the new version of West Virginia Code §§ 49-1-101 through 49-7-304 went into
effect, the Court will apply the revised versions of those statutes on appeal.
       7
        Rule 28 requires the DHHR to file a report containing specific information when seeking
the termination of parental rights, such as “a description of the efforts made by the [DHHR] to
prevent the need for placement . . . .”
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       appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
       558 S.E.2d 620 (2001).

Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009).

        While petitioner is correct that the DHHR failed to file an amended family case plan
seeking termination, we do not find reversible error on this issue under the specific limited
circumstances of this case. The record on appeal in this case is clear that the DHHR filed a
motion to terminate petitioner’s parental rights on August 3, 2015, which was one month before
the final dispositional hearing. West Virginia Code § 49-4-601, clearly provides that “[i]n any
proceeding . . . the party . . . having custodial or other parental rights . . . to the child [must] be
afforded a meaningful opportunity to be heard, including the opportunity to testify and to present
and cross-examine witnesses.” Here, petitioner was provided with notice well in advance of the
dispositional hearing that the DHHR was seeking termination of her parental rights, testified
during the dispositional hearing, and was permitted to cross-examine witnesses. For these
reasons, we cannot find that the Child Abuse and Neglect Rules or statutory framework have
been substantially disregarded or frustrated such that reversal is required. Therefore, for the
foregoing reasons, we find no reversible error in this regard.

        Lastly, petitioner argues that the circuit court erred in considering the evidence of her
failed and diluted drug screen when the results were not admitted during the dispositional
hearing. Upon review of the appendix record, we find no error because petitioner’s argument
lacks merit. The record is devoid of any reference that the circuit court relied upon the physical
results of petitioner’s drug screens. It is undisputed that petitioner testified that she failed a drug
test and submitted a diluted drug screen, which the circuit court properly considered. As such, we
find no error in this regard.

       For the foregoing reasons, we find no error in the circuit court’s October 14, 2015, order,
and hereby affirm the same.


                                                                                            Affirmed.

ISSUED: May 23, 2016


CONCURRED IN BY:

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

DISSENTING:

Justice Robin Jean Davis

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