                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

In re C.C. and L.G.

No. 18-0634 (Harrison County 17-JA-74-1 and 17-JA-76-1)


                              MEMORANDUM DECISION
        Petitioner Mother A.M., by counsel Dreama D. Sinkkanen, appeals the Circuit Court of
Harrison County’s June 7, 2018, order terminating her parental rights to C.C. and L.G.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”), Allison S. McClure, filed a response on behalf of the children in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying her
motion for a post-dispositional improvement period, finding there was no reasonable likelihood
that she could substantially correct the conditions of abuse and neglect, 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.

        On June 2, 2017, the DHHR filed an abuse and neglect petition alleging that petitioner
abused substances and did not have stable housing. Additionally, the DHHR received a referral
in May of 2017 alleging C.C. was taken to the hospital “dazed and vomiting.” The hospital
discovered two brain bleeds and bruising on the child’s face. According to petitioner, the child
spent several days with her father prior to the discovery of her injuries. Initially, the father told
petitioner that the child fell off the couch. However, the father later admitted to a Child
Protective Services (“CPS”) worker that he hit the child. Petitioner waived her preliminary
hearing. Petitioner was ordered by the circuit court to submit to random drug screening.


       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).




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        On August 28, 2017, the circuit court held an adjudicatory hearing. Petitioner stipulated
to the allegations of abuse and neglect contained in the petition. She was granted a post-
adjudicatory improvement period and agreed to complete intensive drug and alcohol abuse
treatment, random blood and urine drug testing, individual therapy, and parenting education
classes. She also agreed to maintain a stable and appropriate home.

         On March 9, 2018, the guardian filed a motion to terminate petitioner’s parental rights.
According to the guardian’s motion, petitioner failed to comply with supervised visitation and
adult life skills and parenting classes. Further, she had not had contact with C.C. since December
of 2017, tested positive for multiple substances on drug screens, and missed thirty-three drug
screens. According to the guardian, petitioner was unable to appreciate the severity of her
substance abuse problem, as evidenced by her substance abuse assessment. During the
assessment, petitioner repeatedly handwrote “Not on drugs!” on her evaluation, despite testing
positive for amphetamine, methamphetamine, morphine, and Ambien at the assessment.
Additionally, petitioner was arrested for possession of controlled substances on February 1,
2018, and March 3, 2018. On February 1, 2018, after trying to gain entry onto a school bus and
claiming a man was trying to hurt her, petitioner consented to a search of her possessions by law
enforcement, which revealed a spoon with a white substance that tested positive for
methamphetamine. Then, on March 3, 2018, a law enforcement officer observed petitioner
driving a vehicle that crossed the yellow line. During a traffic stop, a search of her belongings
revealed that petitioner was in possession of a spoon with residue on it, a plastic bag containing
brown powder, a plastic bag containing a white crystal-like substance, and six morphine pills.
The substances in the plastic bags tested positive for heroin and methamphetamine. On March
19, 2018, petitioner was accepted into a substance abuse treatment program; however, she
participated for approximately twenty days before leaving the program prematurely against
medical advice.

        On May 10, 2018, the circuit court held a dispositional hearing. The DHHR presented
evidence that petitioner continued to abuse substances during her post-adjudicatory improvement
period, left a substance abuse treatment facility against medical advice, and missed over forty
drug screens during her post-adjudicatory improvement period. The DHHR also presented
evidence that services and visitation were terminated in January of 2018 due to petitioner’s
noncompliance. Based upon petitioner’s testimony, the circuit court found that she failed to
comply with the recommendations of her substance abuse assessment, did not obtain
employment, failed to comply with her drug screening requirement, had not had contact with
L.G. for approximately one year,2 and had not had contact with C.C. for approximately four
months. Petitioner also admitted that she was potentially facing incarceration for criminal
charges in two different West Virginia counties. Petitioner conceded that she had not complied
with the terms and conditions of her post-adjudicatory improvement period since at least January
1, 2018. However, according to petitioner, she entered into an inpatient treatment facility on


       2
         In October of 2017, the parties agreed that petitioner would not be permitted any contact
with L.G. for reasons not made clear by the record on appeal. However, the record shows that
petitioner failed to have any contact with L.G. for several months prior to the agreement.



                                                2
April 25 2018, and remained there at the time of the dispositional hearing. Based on the evidence
presented, the circuit court found there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future and that the
termination of petitioner’s parental rights was in the children’s best interests. Ultimately, the
circuit court terminated petitioner’s parental rights in its June 7, 2018, order.3 It is from this 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, this Court
finds no error in the proceedings below.

        First, petitioner argues that the circuit court erred in denying her motion for a post-
dispositional improvement period. In support, she asserts that she enrolled in a long-term
inpatient substance abuse treatment program in April of 2018. She alleges that through her
efforts to enroll and participate in treatment, she demonstrated by clear and convincing evidence
that she was likely to fully participate in a post-dispositional improvement period. Further, she
asserts that her “admission of her substance problem” and enrollment in a treatment program
constituted a substantial change in circumstances. We disagree.

        West Virginia Code § 49-4-610(3)(D) provides that when a parent has previously been
granted an improvement period, the parent must prove that “since the initial improvement period,
the [parent] has experienced a substantial change in circumstances” and that “due to that change
in circumstances the [parent] is likely to fully participate in a further improvement period.”
Additionally, we have stated that “West Virginia law allows the circuit court discretion in
deciding whether to grant a parent an improvement period.” In re M.M., 236 W.Va. 108, 115,

       3
         C.C.’s father’s parental rights were terminated. L.G.’s father is a nonabusing parent and
retains his parental rights. L.G. remains in his father’s custody. The permanency plan for C.C. is
adoption by her current foster family.




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778 S.E.2d 338, 345 (2015). While petitioner argues that her enrollment in a treatment program
for fifteen days prior to the dispositional hearing constitutes a change in circumstances, the
record shows that petitioner repeatedly failed to acknowledge the severity of her substance abuse
issues, continued to abuse substances throughout the proceedings, and failed to complete a
treatment program during her post-adjudicatory improvement period. Petitioner also fails to
acknowledge several other conditions of her post-adjudicatory improvement period with which
she failed to comply. Petitioner failed to participate in parenting classes and visits, which were
ultimately terminated due to her noncompliance. Further, the record shows that petitioner failed
to obtain employment and suitable housing. Moreover, petitioner does not provide evidence that
would have demonstrated that she would be likely to fully participate in a post-dispositional
improvement period and, therefore, she did not meet the applicable burden to receive one. As
such, we find no error.  

        Next, petitioner argues that the circuit court erred in finding there was no reasonable
likelihood that she could substantially correct the conditions of abuse and neglect. In support,
petitioner asserts that she was participating in a substance abuse treatment program and
addressing “her problems and deficiencies.”4 We disagree.

        West Virginia Code § 49-4-604(c)(3) provides that a situation in which there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes
one in which the abusing parent “ha[s] 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
discussed, petitioner failed to participate in any of the terms of her post-adjudicatory
improvement period. Petitioner continued to abuse substances and failed to complete a substance
abuse treatment program during the proceedings. She was arrested multiple times during her
post-adjudicatory improvement period for possession of illegal substances. Further, she failed to
obtain employment and appropriate housing. Based on this evidence, the circuit court was
correct in finding there was no reasonable likelihood that petitioner could substantially correct
the conditions of abuse and neglect in the near future.

        Further, we find no error in the circuit court’s termination of petitioner’s parental rights.
Petitioner argues that her failure to visit with the children was not voluntary and should not have
been a basis for the termination of her parental rights.5 We disagree. West Virginia Code § 49-4-

       4
        Petitioner also argues that the circuit court erroneously implied that she “effectively
abandoned” the children. However, the circuit court did not find that petitioner abandoned the
children; therefore, this argument is without merit.
       5
        Petitioner argues that her failure to visit the children was not voluntary because she was
incarcerated or in treatment and also argues that she did not see L.G. due to her compliance with
the agreement reached during a hearing in October of 2017. However, petitioner fails to
acknowledge that she did not visit with L.G. for several months prior to the circuit court’s order.
Nor does she acknowledge that she last visited with C.C. in December of 2017 and visitation
with that child was terminated in January of 2018 due to her noncompliance with visitation and

                                                                                    (continued . . . )
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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. The evidence
discussed above also supports the termination of petitioner’s parental rights. The circuit court
considered the totality of the circumstances in the matter and did not base termination solely on
petitioner’s failure to visit with the children. Petitioner argues that no evidence was presented to
show that the termination of her parental rights was in the children’s best interests. However, the
evidence of her failure to participate in services and visits with the children, continued substance
abuse, arrests for possession of substances, failure to obtain employment and housing, and failure
to complete substance abuse treatment clearly shows that the termination of petitioner’s parental
rights was in the children’s best interests. The circuit court specifically found in its dispositional
order that the termination of petitioner’s parental rights was necessary for the welfare of the
children. Further, termination of petitioner’s parental rights was necessary in order to establish
permanency for the children. For these reasons, we find no error in the circuit court’s termination
of petitioner’s parental rights.

        For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 7, 2018, dispositional order is hereby affirmed.


                                                                                           Affirmed.




ISSUED:


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment




services. Further, at the time of the dispositional hearing, petitioner had spent only approximately
thirty-five days in treatment in March and April of 2018. While the exact dates of petitioner’s
incarceration were not specified in the record, her arrests were in February and March of 2018,
months after she last visited the children.



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