                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS

                                                                                  FILED
In re: J.S.-1, J.S.-2, J.S.-3, and J.S.-4                                    September 6, 2016
                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
No. 16-0315 (Clay County 15-JA-42, 15-JA-43, 15-JA-44, & 15-JA-45)                 OF WEST VIRGINIA




                               MEMORANDUM DECISION
        Petitioner Father J.S.-5, by counsel Kelly C. Pritt, appeals the Circuit Court of Clay
County’s February 22, 2016, order terminating his parental rights to J.S.-1, J.S.-2, J.S.-3, and
J.S.-4.1 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. The guardian ad litem,
Michael W. Asbury Jr., filed a response on behalf of the children also in support of the circuit
court’s order. On appeal, petitioner alleges that the circuit court erred in terminating his parental
rights because the evidence did not support termination and because he alleges that the guardian
failed to satisfy his obligations in representing the children.

        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 2015, the DHHR filed an abuse and neglect petition against the parents and
alleged that their drug abuse impaired their ability to properly parent the children. The DHHR
also alleged that the mother abused drugs during her pregnancy with J.S.-4. At the time of J.S.­
4’s birth, the child tested positive for diazepam, Oxycodone, and THC. Shortly after the child’s
birth, petitioner tested positive for methamphetamines, opiates, benzodiazepines, amphetamines,
Oxycodone, and THC. Further, the DHHR alleged that the parents failed to provide the children
with a suitable home. The parents waived their right to a preliminary hearing that same month.



       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). Additionally, because petitioner and the children in this
matter share the same initials, the Court will refer to the children as J.S.-1, J.S.-2, J.S.-3, and
J.S.-4 and to petitioner as J.S.-5 throughout this memorandum decision.



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        During an adjudicatory hearing in August of 2015, the parents stipulated to the
allegations in the petition, and the circuit court found them to be abusing parents. Following the
stipulations, the DHHR provided the parents with various services, including parenting
instruction, life skills training, and transportation services. The DHHR also offered the parents
drug treatment and rehabilitation on several occasions. Although the parents initially complied
with services, they began to miss appointments for services in September of 2015 and repeatedly
tested positive for drugs or avoided or refused to submit to drug screens throughout the
proceedings. Due to repeated positive drug screens, both parents missed several opportunities to
visit with the children.

        In December of 2015, the circuit court held a dispositional hearing, during which it found
there was no reasonable likelihood that petitioner could substantially correct the conditions of
abuse and neglect because of his continued drug abuse and failure to accept responsibility for his
actions. Ultimately, the circuit court terminated petitioner’s parental rights to the children. It is
from the dispositional order that petitioner appeals.

       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). Upon our review, the Court finds
no error in the proceedings below.

        To begin, we find no error in the circuit court’s termination of petitioner’s parental rights.
On appeal, petitioner argues that the evidence below did not support the circuit court’s finding
that there was no reasonable likelihood he could substantially correct the conditions of abuse and
neglect. The Court, however, does not agree. While petitioner points to his sporadic compliance
to argue that he substantially complied with the services below, he ignores the fact that he
continued to abuse drugs throughout the pendency of the proceedings. In fact, the record shows
that petitioner tested positive for drugs, including methamphetamine, opiates, amphetamines, and
Oxycodone, approximately one week prior to the dispositional hearing.

    Moreover, petitioner’s continued drug abuse prevented visits with his children, as the
DHHR predicated visitation upon successive negative screens. Because of his continued drug

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abuse, petitioner was unable to visit with the children during the months of September of 2015
and October of 2015. “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 In Interest of Tiffany Marie S., 196 W.Va. 223, 228 and 237, 470 S.E.2d 177,
182 and 191 (1996); State ex rel. Amy M. v. Kaufman, 196 W.Va. 251, 259, 470 S.E.2d 205, 213
(1996)). Based upon the evidence below, it is clear that petitioner failed to demonstrate potential
to achieve sufficient improvement in the conditions of abuse and neglect, as evidenced by his
failure to consistently visit with the children due to his continued drug abuse.

        Further, pursuant to West Virginia Code § 49-4-604(c)(1), there is no reasonable
likelihood the conditions of abuse and neglect can be substantially corrected when

       [t]he 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 . . . .

As addressed above, petitioner’s drug abuse continued throughout the matter below. As such, it
is clear that the circuit court had sufficient evidence upon which to find that there was no
reasonable likelihood petitioner could correct the conditions of abuse and neglect. The circuit
court further found that termination of petitioner’s parental rights was necessary for the
children’s welfare. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed
to terminate parental rights upon these findings.

        In regard to the circuit court’s finding that termination was necessary for the children’s
welfare, petitioner argues that no evidence supported the same. Specifically, petitioner asserts
that his psychological evaluation recommended inpatient drug treatment, but that the document
was not received until late November of 2011, shortly before disposition. As such, petitioner
argues that the children would not have been harmed by allowing him additional time to comply
with such a program. This argument, however, ignores the fact that the DHHR provided
testimony that petitioner was offered inpatient drug rehabilitation early in the proceedings, but
chose not to comply with this service. Specifically, the DHHR established that it offered
petitioner “help . . . with . . . getting inpatient, long-term drug rehabilitation” by discussing the
same during multidisciplinary team (“MDT”) meetings. In fact, according to testimony from a
DHHR employee, inpatient drug rehabilitation was “offered all along and strongly
recommended.” Despite the DHHR’s recommendation, petitioner chose not to avail himself of
this treatment. Accordingly, it is clear that the children’s welfare required termination of
petitioner’s parental rights, as he previously failed to submit to the recommended treatment to
correct the conditions of abuse and neglect in the home. As such, we find no error in the circuit
court terminating his parental rights.

       Additionally, the Court finds no merit to petitioner’s argument that the circuit court erred
in terminating his parental rights without requiring the guardian to comply with his statutory

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duties.2 Specifically, petitioner claims that the guardian failed to conduct an independent
investigation into the facts of the case, file a written report with the circuit court, or participate in
MDT meetings. As such, petitioner argues that the guardian was unable to assess petitioner’s
improvement plan to achieve reunification with the children. Petitioner further argues that the
guardian’s failure to comply with the process established to protect the children’s best interests
requires vacation of the dispositional order. The Court, however, does not agree.

        We have previously held 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
        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). In support of his appeal,
petitioner fails to allege what evidence, if any, the guardian would have presented that would
have substantially impacted the circuit court’s termination of his parental rights. Further,
petitioner fails to demonstrate how any of the guardian’s alleged inactions prejudiced him in any
way. Regardless of whether the guardian complied with his duties, the record is clear that
petitioner failed to comply with the terms and conditions imposed upon him below and, in fact,
continued to actively abuse drugs throughout the proceedings. Even if petitioner’s allegations
against the guardian were accepted as true, it would not alter the fact that the circuit court’s
termination of petitioner’s parental rights was based upon petitioner’s well-documented failure to
remedy the conditions of abuse and neglect. As such, we find that vacation of the dispositional
order is not warranted and affirm the circuit court’s termination of petitioner’s parental rights.3

        2
        According to the record, the guardian that responded to petitioner’s appeal is not the
same individual that served as guardian in the proceedings below.
        3
         Our ultimate ruling should not be construed as an approval of guardians ad litem in
abuse and neglect cases failing to properly represent their clients in compliance with the
applicable rules and statutes governing such representation. While the Court declines to address
the sufficiency of the guardian’s representation below, we nonetheless find that the specific facts
of this case do not warrant vacation of the resulting dispositional order, given the overwhelming
evidence that there was no reasonable likelihood petitioner could substantially correct the
conditions of abuse and neglect and that termination of petitioner’s parental rights was necessary
for the children’s welfare. However, we remind guardians that

       [e]ach child in an abuse and neglect case is entitled to effective representation of
       counsel. To further that goal, W.Va.Code [§] 49–6–2(a) [now W.Va. Code § 49­
       4-601(f)(1)] . . . mandates that a child has a right to be represented by counsel in
       every stage of abuse and neglect proceedings.
(continued . . . )
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       For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 22, 2016, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: September 6, 2016


CONCURRED IN BY:

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




Syl. Pt. 5, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993). In that case, we went on to
address several duties imposed upon guardians, including the requirement “that a guardian ad
litem shall make a full and independent investigation of the facts involved in the proceeding, and
shall make his or her recommendations known to the court[;]” as well as the requirement that “an
attorney [must] provide competent representation to a client, and . . . act with reasonable
diligence and promptness in representing a client.” Id. at 26, 435 S.E.2d at 164, Syl. Pt. 5. We
further stated that “[t]he Guidelines for Guardians Ad Litem in Abuse and Neglect cases, . . .
adopted in [Jeffrey R.L.], are in harmony” with the applicable statutes and rules governing both
guardians ad litem specifically and attorneys generally, “and provide attorneys who serve as
guardians ad litem with direction as to their duties in representing the best interests of the
children for whom they are appointed.” Id. We reiterate that holding herein, given the
importance of the representation of children in such cases.



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