                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                        FILED
                                                                                     June 25, 2020
In re P.M., M.M., L.G., and D.G.                                                    EDYTHE NASH GAISER, CLERK
                                                                                    SUPREME COURT OF APPEALS
                                                                                        OF WEST VIRGINIA
No. 19-1058 (Randolph County 19-JA-83, 19-JA-84, 19-JA-85, and 19-JA-86)



                              MEMORANDUM DECISION


        Petitioner Mother C.M., by counsel Gregory R. Tingler, appeals the Circuit Court of
Randolph County’s October 17, 2019, order terminating her parental rights to P.M., M.M., L.G.,
and D.G. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel Brandolyn N. Felton-Ernest, filed a response in support of the circuit court’s order. The
guardian ad litem (“guardian”), Heather M. Weese, 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
terminating her parental rights without first granting her an improvement period and in finding
that the DHHR made reasonable efforts to preserve and/or reunify the family.

        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 2019, the DHHR filed a child abuse and neglect petition alleging that petitioner
abused methamphetamine during her pregnancy with P.M., who was born drug exposed.
Petitioner admitted to the DHHR worker that she abused methamphetamine weekly, had a long
history of substance abuse, and last used methamphetamine two days before P.M.’s birth.
Thereafter, petitioner waived her preliminary hearing, and the circuit court ordered her to
randomly drug screen through the “Call-To-Test” program and participate in supervised
visitations.

       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
        At an adjudicatory hearing held in August of 2019, petitioner stipulated to the allegations
as contained in the petition. The circuit court accepted petitioner’s stipulation and adjudicated
her as an abusing parent. Petitioner moved for a post-adjudicatory improvement period, but the
circuit court held the motion in abeyance.

        In September of 2019, the circuit court held the final dispositional hearing. Petitioner
reiterated her request for an improvement period but did not testify or provide any other evidence
in support of her request. The DHHR moved to terminate petitioner’s parental rights, arguing
that she had been noncompliant with drug screening throughout the proceedings. Testimony
showed that petitioner failed to consistently call in to ascertain whether she needed to submit to a
drug screen, missed many drug screens, and tested positive for substances several times in
August of 2019. The DHHR further argued that in addition to supervised visitations and drug
screening services in the case at bar, it also provided a plethora of services to petitioner in prior
Child Protection Services (“CPS”) interventions and proceedings. 2 Specifically, the DHHR
worker testified that petitioner received twenty months of parenting sessions, seventy-nine
months of transportation services, twenty-two months of safety and in-home services, and
twenty-two months of adult life skills sessions. 3 Despite receiving such extensive services, the
DHHR argued that petitioner failed to improve her parenting ability and that there were no
additional services it could offer her to remedy the conditions of abuse and neglect. Upon
hearing the evidence presented, the circuit court denied petitioner’s motion finding that she was
unlikely to participate in an improvement period, as evidenced by her lack of compliance with
drug screening. The circuit court noted that petitioner failed to testify “or otherwise present proof
that she’s likely to fully participate in the terms and conditions of the improvement period, were
it to be granted” and that she failed to otherwise assist her attorney in “the defense of her case.”
The circuit court concluded 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. The circuit court entered an order reflecting its decision
on October 17, 2019. Petitioner appeals this dispositional order. 4

        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


        2
            The record indicates that petitioner received such services as a “non-party respondent.”
        3
       According to the guardian, upon the DHHR’s disclosure of discovery materials in
August of 2019, “records were disclosed of the services offered to [petitioner] since 2007.”
        4
         All parents’ parental rights have been terminated, with the exception of M.M.’s
unknown father. The DHHR indicates that it is seeking the termination of the unknown father’s
parental rights. The children’s permanency plan is adoption by the current foster family.



                                                    2
       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
without first granting her a post-adjudicatory improvement period when she had not previously
been granted an improvement period and “when the allegations from a previous case . . . were
relied upon as a basis for the DHHR’s failure to offer any services to [her].” According to
petitioner, the circuit court “imposed an improper burden of proof upon [her] as she was not
absolutely required to testify in order to sustain her burden” and the evidence presented below
“satisfied that burden without [her] testimony.” We disagree. 5

        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 (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.”). We have also held that a parent’s “entitlement to an improvement period is
conditioned upon the ability of the [parent] to demonstrate ‘by clear and convincing evidence,
that the [parent] is likely to fully participate in the improvement period.’” In re Charity H., 215
W. Va. 208, 215, 599 S.E.2d 631, 638 (2004).



       5
         Regarding petitioner’s contention that the circuit court improperly relied upon
information concerning the DHHR’s provision of services to petitioner in prior CPS
interventions and child abuse and neglect proceedings, petitioner fails to cite to the record in
support of this argument. In fact, a review of the record reveals that the circuit court relied upon
petitioner’s complete failure to satisfy her burden to demonstrate that she was likely to fully
participate in an improvement period and upon the DHHR’s evidence presented below. The
circuit court does not suggest that it denied petitioner’s request for an improvement period based
upon her previous receipt of services from the DHHR in prior matters. Confusingly, in the body
of petitioner’s brief, she complains that her “history” of regaining custody of the children should
have been relied upon by the circuit court when determining whether to grant her an
improvement period. Petitioner’s arguments are not only unclear but are also unsupported. As
such, we find this argument without merit.



                                                 3
        Petitioner concedes that she “bears the burden of proof in providing clear and convincing
evidence that she is likely to fully participate in an improvement period.” Yet, petitioner ignores
the fact that she completely failed to satisfy this burden when she presented no evidence in
support of her request for an improvement period. Of course, petitioner was not “absolutely
required” to testify, but she was required to put forth some evidence in support of her request of
an improvement period. Petitioner was free to carry her burden by presenting evidence other than
her own testimony but failed to do so. Because she put forth no evidence whatsoever, the
DHHR’s evidence of her noncompliance with drug screening remained unrebutted, and the
circuit court was left only with evidence showing that she was unlikely to fully participate in an
improvement period. As such, the circuit court had no choice but to rely on the evidence
presented, which was adverse to petitioner’s request for an improvement period. Indeed, on
appeal, petitioner concedes that she had “positive tests and [drug] screening compliance lapses.”
In light of petitioner’s failure to present any evidence demonstrating that she was likely to
comply with the terms and conditions of an improvement period, we find no error in the circuit
court’s denial of said request.

       Petitioner next argues that the circuit court erred in finding that the DHHR made
reasonable efforts to preserve and/or reunify the family because she was not provided drug
treatment. Petitioner also contends that the circuit court failed to analyze the “factors set forth in
[West Virginia Code] § 49-4-604(b)(6)(A)-(C) (2019).” 6 Petitioner acknowledges that there are


       6
        Although the Legislature amended West Virginia Code § 49-4-604 effective June 5,
2020, including renumbering the provisions, the amendments do not impact this case. West
Virginia Code § 49-4-604(b)(6)(A) through (C) (2019) states, in part, as follows:

       Upon a finding that there is no reasonable likelihood that the conditions of neglect
       or abuse can be substantially corrected in the near future and, when necessary for
       the welfare of the child, terminate the parental . . . rights and responsibilities of
       the abusing parent. . . If the court shall so find, then in fixing its dispositional
       order the court shall consider the following factors:

       (A) The child’s need for continuity of care and caretakers;

       (B) The amount of time required for the child to be integrated into a stable and
       permanent home environment; and

       (C) Other factors as the court considers necessary and proper. Notwithstanding
       any other provision of this article, the court shall give consideration to the wishes
       of a child 14 years of age or older or otherwise of an age of discretion as
       determined by the court regarding the permanent termination of parental rights . . .
       . In determining whether or not parental rights should be terminated, the court
       shall consider the efforts made by the department to provide remedial and
       reunification services to the parent. The court order shall state:


                                                                                     (continued . . . )
                                                  4
several circumstances in which the DHHR is not required to make reasonable efforts to reunify a
family but argues that none of those circumstances exist in this case. See W. Va. Code § 49-4-
602(d) (2019). Further, if those conditions existed, the circuit court failed to state such a finding
as a basis for relieving the DHHR of its duty to provide petitioner with additional remedial
services. We disagree.

        According to West Virginia Code § 49-4-601(d), “[a]t the time of the institution of any
proceeding under this article, the [DHHR] shall provide supportive services in an effort to
remedy circumstances detrimental to a child.” Petitioner correctly asserts that none of the
circumstances set forth in West Virginia Code § 49-4-602(d) existed in this case and that the
DHHR was required to provide remedial services. However, contrary to petitioner’s arguments,
the DHHR, in fact, provided services to petitioner—supervised visitations and random drug
screening. Petitioner argues that she should have been entitled to substance abuse treatment, yet
she could not comply with the meager requirement to regularly submit to drug screening. As
petitioner did not comply with the services offered, she cannot now dictate that reasonable
efforts should have included drug treatment. For these reasons, we find petitioner’s argument
unpersuasive and without merit.

        Petitioner’s remaining arguments are predicated upon the circuit court’s alleged failure to
analyze the factors set forth in West Virginia Code §§ 49-4-604(b)(6) and (7) (2019), which
require the circuit court to consider the efforts made by the DHHR to provide remedial and
reunification services to the parent or whether such services or reasonable efforts were required
or unreasonable due to specific circumstances. However, the circuit court’s order addressed
several of the required factors. Specifically, the circuit court found that the children “need
continuity in caretakers, and a significant amount of time is required to be integrated into a stable
and permanent home environment.” Further, the circuit court found that petitioner failed to
participate in the DHHR’s services, specifically the “Call-To-Test” program for random drug
screening. Finally, the circuit court found that petitioner did not appear to have an interest in


       (i) That continuation in the home is not in the best interest of the child and why;

       (ii) Why reunification is not in the best interests of the child;

       (iii) Whether or not the department made reasonable efforts, with the child's
       health and safety being the paramount concern, to preserve the family, or some
       portion thereof, and to prevent the placement or to eliminate the need for
       removing the child from the child's home and to make it possible for the child to
       safely return home, or that the emergency situation made those efforts
       unreasonable or impossible; and

       (iv) Whether or not the department made reasonable efforts to preserve and
       reunify the family, or some portion thereof, including a description of what efforts
       were made or that those efforts were unreasonable due to specific circumstances.




                                                  5
fully participating in the proceedings and had “historically received many months of services
from the [DHHR] without sustained change.”

        While we acknowledge that West Virginia Code §§ 49-4-604(b)(6) and (7) (2019),
require additional findings regarding the DHHR’s reasonable efforts to reunify the family, we
find that the circuit court’s failure to explicitly set forth these findings in the order on appeal
does not require vacation. 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). The record shows that
petitioner received extensive services from the DHHR as far back as 2007, including twenty
months of parenting sessions, seventy-nine months of transportation services, twenty-two months
of safety and in-home services, and twenty-two months of adult life skills sessions. Despite
receiving these services, petitioner made no improvement in her parenting, which supports the
circuit court’s finding that she “historically received many months of services from the [DHHR]
without sustained change.” Further, on appeal, petitioner admits that she failed to comply with
the DHHR’s services during the underlying proceedings and received extensive services in prior
matters. As such, we cannot find that vacation of this order is warranted, given that this does not
constitute a substantial disregard or frustration of the rules and statutes governing abuse and
neglect proceedings.

        We further find that the record also supports the termination of petitioner’s parental
rights. West Virginia Code § 49-4-604(b)(6) (2019) 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) (2019), “[n]o reasonable
likelihood that the conditions of neglect or abuse can be substantially corrected” means that “the
abusing adult or adults have demonstrated an inadequate capacity to solve the problems of abuse
or neglect on their own or with help.” As discussed above, petitioner received extensive services
from the DHHR, both in prior cases and in the case at bar, without sustained improvement. The
record establishes that petitioner demonstrated an inadequate capacity to solve the problems of
abuse and/or neglect on her own or with help. Because petitioner failed to remedy the conditions
of abuse and neglect, the children’s welfare would necessarily be threatened in her care.
Accordingly, we find no error in the circuit court’s termination of petitioner’s parental rights.

         Lastly, we recognize that proceedings against M.M.’s unknown father in the circuit court
are still ongoing. As such, this Court reminds the circuit court of its duty to establish permanency
for the children. Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings
requires:

                                                 6
       At least once every three months until permanent placement is achieved as
       defined in Rule 6, the court shall conduct a permanent placement review
       conference, requiring the multidisciplinary treatment team to attend and report as
       to progress and development in the case, for the purpose of reviewing the progress
       in the permanent placement of the child.

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the
children within twelve months of the date of the disposition order. As this Court has stated,

               [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedure[] for Child Abuse and Neglect Proceedings for permanent
       placement of an abused and neglected child following the final dispositional order
       must be strictly followed except in the most extraordinary circumstances which
       are fully substantiated in the record.

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 6. Moreover, this Court has stated that

               [i]n determining the appropriate permanent out-of-home placement of a
       child under [West Virginia Code § 49-4-604(b)(6) (2019)], the circuit court shall
       give priority to securing a suitable adoptive home for the child and shall consider
       other placement alternatives, including permanent foster care, only where the
       court finds that adoption would not provide custody, care, commitment, nurturing
       and discipline consistent with the child’s best interests or where a suitable
       adoptive home can not be found.

Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W. Va. 648, 408
S.E.2d 400 (1991).

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 17, 2019, order is hereby affirmed.

                                                                                          Affirmed.

ISSUED: June 25, 2020

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



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