                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS

                                                                                     FILED
In re H.M.                                                                        June 15, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
No. 18-0193 (Wood County 16-JA-98)                                                   OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
         Petitioner Mother R.M., by counsel George M. Torres, appeals the Circuit Court of Wood
County’s January 18, 2018, order terminating her parental rights to H.M.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”), Justin M.
Raber, filed a response on behalf of the child also in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in terminating her parental rights based upon
the erroneous finding that there was no reasonable likelihood that she could correct the
conditions of abuse and neglect in the near future, terminating her parental rights when less-
restrictive alternatives were available, and denying her post-termination visitation.

        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 2016, the DHHR filed an abuse and neglect petition against petitioner and the
father shortly after the birth of H.M., the only child at issue in this appeal. The DHHR alleged
that petitioner previously had her parental rights to two older children terminated in Cuyahoga
County, Ohio, in 2015. According to the DHHR, the final order from that case indicated that
petitioner abandoned the older children; did not have stable housing; could not meet the needs of
her children; and failed to complete parenting classes, substance abuse treatment, drug screens,
mental health treatment, and a mental health evaluation. The DHHR alleged that, due to the prior
termination of her parental rights, the instant proceedings were based upon aggravated
circumstances and it noted that no substantial change in circumstances had occurred since the
prior terminations. Further, the DHHR alleged that, at the time of the child’s birth, petitioner had
been using marijuana for several weeks.
                                                            
              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).


                                                                   1

 
        The circuit court held an adjudicatory hearing in August of 2016, wherein petitioner
stipulated to the allegations contained in the petition. The circuit court accepted petitioner’s
stipulation, adjudicated her as an abusing parent, and granted her a post-adjudicatory
improvement period.

        The circuit court held its first review hearing regarding petitioner’s post-adjudicatory
improvement period in November of 2016. The DHHR reported that petitioner did not have
stable housing, despite having received a housing voucher; missed some supervised visits with
the child; and continued to test positive for marijuana. A second review hearing was held in
January of 2017. The circuit court was advised that petitioner’s supervised visitation had been
terminated because she continued to test positive for marijuana. A third review hearing was held
in February of 2017, wherein petitioner advised that she had recently begun providing negative
drug screens and her supervised visitation had been reinstated. Petitioner also advised that she
was working two jobs and maintaining stable housing. However, the DHHR noted that petitioner
had been discharged by her service provider due to an argument. The circuit court directed the
parties to find a new service provider and scheduled a dispositional hearing. In April of 2017, the
circuit court held the dispositional hearing and granted petitioner a post-dispositional
improvement period.

        In December of 2017, the circuit court held a dispositional hearing wherein several
people testified as to petitioner’s noncompliance with the terms of her improvement period. A
service provider testified that he had concerns about petitioner’s judgment when parenting the
child and noted that she missed approximately four supervised visits with the child. Another
service provider testified that, between March of 2017, and the dispositional hearing, petitioner
only appeared for approximately twenty-six of the fifty-seven required drug screens and tested
positive for marijuana twice. Petitioner testified, admitting that she abused marijuana in both the
underlying proceedings and prior abuse and neglect proceedings wherein her parental rights to
two older children were terminated. Petitioner denied that she continued to smoke marijuana and
stated that her recent positive screens must have resulted from “just simply being around others
that smoked it.” After hearing petitioner’s testimony, the circuit court continued the hearing.

        In January of 2018, the circuit court held a final dispositional hearing. After hearing
evidence, the circuit court found that petitioner had been participating in an improvement period
over the course of fifteen months and had not substantially complied with the same. Specifically,
petitioner lied during the proceedings; failed to provide drug screens or tested positive for illegal
substances when she did screen; maintained her relationship with the father of the child, whose
parental rights had been terminated; and cancelled several visits with the child. As such, the
circuit court found that there was no reasonable likelihood that petitioner could correct the
conditions of abuse in the near future and that termination was necessary for the child’s welfare.
It is from the January 18, 2018, order terminating her parental rights and denying her post-
termination visitation that petitioner appeals.2


                                                            
              2
        The parents’ parental rights were terminated during the underlying proceedings. The
child was placed with foster parents and the permanency plan for the child is adoption therein.
                                                               2

 
        The Court has previously established the following standard of review in cases such as
this:

                “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).

         On appeal, petitioner argues that the circuit court erred in terminating her parental rights
in two ways. First, she argues that the circuit court erred in terminating her parental rights upon
the erroneous finding that there was no reasonable likelihood that she could correct the
conditions of abuse. Specifically, petitioner argues that she secured an apartment, maintained
employment, participated in services, and established a bond with the child during supervised
visitation. We disagree.

       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 includes
one in which

        [t]he abusing parent or parents have 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[.]

        Here, the record demonstrates that petitioner was granted a post-adjudicatory
improvement period in August of 2016. Petitioner was offered several services but failed to
substantially comply with them. Petitioner initially failed to obtain housing despite having a
housing voucher, continued to abuse marijuana, and tested positive for the substance at several
drug screens such that her supervised visitation with the child was suspended for a period of
time. Petitioner also argued with her service provider and was ultimately discharged from those
services. Despite such actions, the circuit court directed the parties to find another service
provider and eventually granted petitioner a post-dispositional improvement period. However,
petitioner failed to take advantage of the additional time to correct the conditions of abuse,


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missing approximately twenty-six out of fifty-seven required drug screens and testing positive
for marijuana twice. Petitioner also cancelled several visits with the child. Significantly, the
record demonstrates that petitioner’s parental rights to two older children were terminated under
nearly identical circumstances. As such, we find that the circuit court did not err in finding that
there was no reasonable likelihood that petitioner could correct the conditions of abuse and
neglect in the near future as she clearly did not follow through with the family case plan.

        Second, petitioner argues that the circuit court erred in terminating her parental rights
when less-restrictive alternatives were available. Specifically, petitioner argues that based upon
her “sufficient improvement” as set forth above, and her demonstrated desire to participate in the
proceedings, a less-restrictive alternative to termination of her parental rights was warranted. We
find petitioner’s argument to be without merit. West Virginia Code § 49-4-604(b)(6) provides
that circuit courts are to terminate parental rights upon findings that there is “no reasonable
likelihood that the conditions of neglect or abuse can be substantially corrected in the near
future” and that termination is necessary for the child’s welfare. As discussed above, the circuit
court correctly found that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and neglect due to her failure to follow through with several aspects of her
improvement period. Moreover, petitioner was unable to participate in supervised visitation for a
period of time due to her substance abuse and cancelled several visits with the children when she
was permitted to visit them. “We have previously pointed out that the level of interest
demonstrated by a parent in visiting his or her children while they are out of the parent’s custody
is a significant factor in determining the parent’s potential to improve sufficiently and achieve
minimum standards to parent the child.” In re Katie S., 198 W.Va. 79, 90 n.14, 479 S.E.2d 589,
600 n.14 (1996)(citing Tiffany Marie S., 196 W.Va. at 228 and 237, 470 S.E.2d at 182 and 191;
State ex rel. Amy M. v. Kaufman, 196 W.Va. 251, 259, 470 S.E.2d 205, 213 (1996)). As such,
termination of petitioner’s parental rights was also necessary for the child’s welfare as evidence
established that petitioner lacked a bond with the child.

        While petitioner argues that the circuit court should not have terminated her parental
rights without first granting her a less-restrictive alternative disposition, we have previously held
that

               “[t]ermination 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). Based upon the evidence, we
agree with the circuit court’s decision to terminate petitioner’s parental rights upon findings that
there was no reasonable likelihood that petitioner could correct the conditions of abuse and/or
neglect and that termination was necessary for the child’s welfare. As mentioned above, circuit
courts are not obliged to employ less-restrictive alternatives to termination of parental rights
upon such findings. Accordingly, we find no error.


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         Petitioner lastly argues that the circuit court erred in denying her post-termination
visitation with the child. According to petitioner, the circuit court erroneously found that she
failed to prove the existence of a bond with her child when a service provider testified at the
dispositional hearing that petitioner and the child appeared to have a bond, the child was happy
to be with petitioner during visits, and petitioner interacted well with the child. We find
petitioner’s argument to be unpersuasive.

                “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, petitioner failed to
establish that post-termination visitation would be in the best interests of the child. Petitioner
failed to consistently visit with the child throughout her improvement period. Further, another
service provider and a Court Appointed Special Advocate testified at the dispositional hearing
that petitioner did not appear to have a bond with the child. Petitioner asserts that these witnesses
supervised visitation less frequently than the other service provider and she argues that the circuit
court should not have given their testimony more weight. However, we have previously held 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.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497
S.E.2d 531, 538 (1997). As such, we find that the circuit court did not abuse its discretion in
denying petitioner post-termination visitation as the evidence supports a finding that it would not
be in the child’s best interests.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 18, 2018, order is hereby affirmed.
                                                                                     Affirmed.

ISSUED: June 15, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

Justice Allen H. Loughry II, suspended and therefore not participating

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