                                                                                    FILED
                             STATE OF WEST VIRGINIA
                                                                                  May 24, 2019
                           SUPREME COURT OF APPEALS                             EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA

In re T.H., D.H., J.P.-1, J.P.-2, and A.P.

No. 18-1098 (Kanawha County 2018-JA-384, 2018-JA-385, 2018-JA-386, 2018-JA-387, and
2018-JA-388)



                               MEMORANDUM DECISION



        Petitioner Mother T.P., by counsel Edward L. Bullman, appeals the Circuit Court of
Kanawha County’s November 15, 2018, order terminating her parental rights to T.H., D.H., J.P.-
1, J.P.-2, and A.P.1 The West Virginia Department of Health and Human Resources (“DHHR”),
by counsel S.L. Evans, filed a response in support of the circuit court’s order. The guardian ad
litem (“guardian”), Jennifer N. Taylor, filed a response on behalf of the children, also in support
of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying her
request for an improvement period and terminating her parental 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 affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        The DHHR filed a child abuse and neglect petition against petitioner in July of 2018,
alleging a myriad of issues. The DHHR alleged that, beginning in 2017, petitioner failed to
cooperate with their investigations, including a referral of inappropriate sexual acts committed by
J.P.-1. Petitioner refused to transport the children to their scheduled forensic interviews and
avoided Child Protective Services (“CPS”) workers’ attempts at contact. CPS workers were unable
to locate petitioner until February of 2018, and she remained noncompliant with their attempts to
investigate the issues in the home thereafter. Petitioner failed to enroll J.P.-1 in a “homebound”
program following his expulsion from school, leaving him without proper education for

       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 two of the children share the same initials,
we will refer to them as J.P.-1 and J.P.-2, respectively, throughout this memorandum decision.


                                                  1
approximately one month. Further, the children reported that petitioner allowed heavy foot traffic
in the home and that they did not want to sleep in their beds because petitioner engaged in sexual
intercourse with random men in their beds. A.P. threatened suicide if she were returned to
petitioner’s home. At some point in June of 2018, the DHHR was able to secure petitioner’s
agreement to enter into a temporary protection plan after she was incarcerated upon having been
charged as an accessory-after-the-fact for harboring a fugitive, who was charged with malicious
wounding and strangulation.2 Petitioner’s criminal history also included convictions for battery
and driving under the influence. In sum, the DHHR concluded that petitioner failed to provide her
children with the necessary food, clothing, supervision, housing, and financial support.

        In July, the circuit court held a preliminary hearing during which it heard the testimony of
a CPS worker and petitioner’s family friend regarding the allegations contained in the petition.
The CPS worker testified that petitioner was suspected of drug abuse due to the heavy foot traffic
in and out of her home. Further, the CPS worker stated that she attempted to arrange for the
children’s forensic interviews several times, but that petitioner failed to follow through with
bringing the children to the appointments. Petitioner’s family friend testified that J.P.-1 disclosed
to her that he had smoked marijuana with petitioner’s friends on prior occasions. Petitioner
admitted that, were she screened, she might test positive for marijuana, Suboxone, and other non-
prescribed medications. After hearing evidence, the circuit court found that imminent danger to
the physical well-being of the children existed and that there were no reasonable available
alternatives to removal of the children from petitioner’s custody. The circuit court ordered the
DHHR to arrange services for petitioner, such as random drug screens, supervised visitation that
was to be contingent on the provision of negative drug screens, transportation assistance, and
forensic interviews for the children. Additionally, petitioner was instructed to submit to a drug
screen following the hearing.

        The circuit court held an adjudicatory hearing in August of 2018. Petitioner failed to attend
but was represented by counsel. The circuit court noted the results of petitioner’s drug screen
following the preliminary hearing, which included amphetamines, methamphetamines, fentanyl,
codeine, morphine, and marijuana, all with “fairly significant levels.” The DHHR moved the
circuit court to consider the evidence presented at the preliminary hearing for the purpose of
adjudication, which the circuit court granted without objection. After hearing argument, the circuit
court adjudicated petitioner as an abusing parent.

         In November of 2018, the circuit court held a dispositional hearing. Testimony established
that petitioner entirely failed to participate in the proceedings. Following the preliminary hearing,
petitioner did not submit to any drug screens and, as such, was prohibited from visiting with her
children. Further, petitioner failed to attend any parenting or adult life skills classes. Petitioner
testified that she failed to remain in contact with the DHHR and participate in services because she
“kind of just went into a depressed state, and [moved to] Clay County with my mom.” She
explained, “I just . . . couldn’t get myself together.” Petitioner admitted that she had a drug problem


       2
         Prior to petitioner’s arrest, only J.P.-1, T.H., and D.N. were residing in her home. A.P.
resided with her paternal grandmother and J.P.-2 resided with a family friend. It appears that
petitioner was released from incarceration at some point during the proceedings.


                                                  2
and only attempted to enter a rehabilitation program one day prior. Petitioner requested the
opportunity to enter into a rehabilitation program and suggested that the children be placed with
their respective fathers to allow her the opportunity to regain custody of the children. Ultimately,
the circuit court terminated petitioner’s parental rights. In making its findings, the circuit court
determined that petitioner was presently unwilling or unable to provide adequately for the
children’s needs, continued to use drugs, failed to participate in any services, and refused to accept
responsibility for her actions. Accordingly, the court found that there was no reasonable likelihood
that petitioner could correct the conditions of abuse and neglect in the near future and that
termination of her parental rights was necessary for the children’s welfare. It is from the November
15, 2018, dispositional order that petitioner appeals.3

       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).

        On appeal, petitioner argues that the circuit court should not have terminated her parental
rights without first granting her an improvement period. According to petitioner, she was making
efforts to address her drug abuse and depression. She states that the children were in safe
placements and, as such, she should have been given more time to pursue treatment. Petitioner
avers that “[t]here will be progress and setbacks for any addict” and that she should have been
given more time to address her issues. We disagree.

        Pursuant to West Virginia Code § 49-4-610, a circuit court may grant a post-adjudicatory
improvement period when the parent files a motion in writing requesting an improvement period
and “demonstrates, by clear and convincing evidence, that the [parent] is likely to fully participate
in the improvement period.” The decision to grant or deny an improvement period rests in the
sound discretion of the circuit court. See In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345


       3
          The fathers of T.H., D.H., and A.P. are nonabusing parents. T.H. and D.H. were placed in
their father’s care, while A.P. was placed with her paternal grandmother per her father’s agreement.
The parental rights of the father of J.P.-1 and J.P.-2 were terminated below. Those children were
placed in a kinship placement with a permanency plan of adoption therein.


                                                  3
(2015) (“West Virginia law allows the circuit court discretion in deciding whether to grant a parent
an improvement period.”); Syl. Pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996)
(“It is within the court’s discretion to grant an improvement period within the applicable statutory
requirements . . . .”).

        Here, the record does not indicate that petitioner ever filed a written motion for an
improvement period, nor does petitioner cite to the record to demonstrate that she orally requested
one. However, assuming that petitioner’s request at the dispositional hearing for an “opportunity”
to enter a treatment facility establishes that she did request an improvement period, we find that
petitioner failed to demonstrate that she was likely to fully participate in the same. Despite not
having been granted a formal improvement period, petitioner was given several services such as
random drug screens, supervised visitation with her children, and parenting and adult life skills
classes. However, petitioner failed to participate in any service she was provided. Petitioner
submitted to only one drug screen following the preliminary hearing and tested positive for a
myriad of substances including amphetamines, methamphetamines, codeine, and fentanyl.
Thereafter, petitioner disappeared and was not heard from until the dispositional hearing. She
failed to attend any parenting or adult life skills classes and did not visit the children a single time
following the preliminary hearing. “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.” Id. at 90 n.14, 479 S.E.2d at 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, petitioner’s assertions that
she needed more time to address her substance abuse ring hollow in light of her complete lack of
effort to address her issues during the proceedings below. Given this evidence, it is clear that
petitioner failed to establish that she was entitled to an improvement period, and, accordingly, we
find no error.

       We likewise find no error in the circuit court’s termination of petitioner’s parental rights.
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 children’s
welfare. 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 the parent has

       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.

        As set forth above, petitioner clearly failed to respond to or follow through with
rehabilitative efforts designed to reduce or prevent the abuse and neglect of her children. Petitioner
abused drugs, disappeared for several months, failed to maintain contact with the DHHR, did not
attend her parenting or adult life skills classes, and failed to visit with the children. While she now

                                                   4
claims that she needed more time to enter a rehabilitation program, we note that she made no effort
to contact any programs until one day before the dispositional hearing. Moreover, we have
previously held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [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 [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). Given the evidence of
petitioner’s complete lack of participation in the underlying proceedings, we agree with the circuit
court’s findings that there was no reasonable likelihood that petitioner could correct the conditions
of abuse in the near future and that termination of her parental rights was necessary for the
children’s welfare. Accordingly, we find that petitioner is entitled to no relief in this regard.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 15, 2018, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: May 24, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




                                                 5
