                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS
                                                                                     FILED
In re H.S.                                                                      November 21, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
No. 18-0681 (Putnam County 17-JA-82)                                                 OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
        Petitioner Mother D.J., by counsel Shawn D. Bayliss, appeals the Circuit Court of
Putnam County’s June 22, 2018, order terminating her parental, guardianship, and custodial
rights to H.S.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”), Maggie J. Kuhl, 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; terminating her parental, guardianship, and custodial
rights; and in denying her motion for 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 September of 2017, the DHHR filed a petition alleging that petitioner’s substance
abuse negatively affected her ability to parent the child. According to the DHHR, petitioner
exposed the child to unsafe situations and environments and failed to supply the child with the
necessary food, clothing, shelter, supervision, medical care, and education. The DHHR also
alleged that petitioner and the father of the child were transient and their whereabouts were
currently unknown. The DHHR indicated that the paternal grandmother had physical custody of
the child, but neither parent had provided her with authority to seek medical treatment for the
child.


                                                            
              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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        The circuit court held a preliminary hearing in September of 2017. Petitioner did not
appear, but was represented by counsel. The circuit court determined that petitioner was not
properly served and rescheduled the preliminary hearing. Petitioner did not appear for the
subsequent preliminary hearing in November of 2017, but was represented by counsel. The
circuit court found that petitioner was properly served by publication. The circuit court further
found probable cause that the child was subjected to abuse and neglect and ordered that his
physical and legal custody remain with the DHHR.

        In December of 2017, the circuit court held an adjudicatory hearing and petitioner
stipulated to the allegations of abuse and neglect contained in the petition. The circuit court
adjudicated petitioner as an abusing parent. Petitioner moved for a post-adjudicatory
improvement period and offered to enter into inpatient substance abuse treatment in Virginia.
The circuit court held petitioner’s motion in abeyance, but ordered the DHHR to pay for
petitioner’s inpatient treatment. The circuit court held a dispositional hearing in January of 2018,
and petitioner renewed her motion for a post-adjudicatory improvement period. The circuit court
granted petitioner’s motion and ordered that she comply with the DHHR’s family case plan. The
circuit court further ordered petitioner to participate in random drug screening, long-term
inpatient substance abuse treatment, and outpatient substance abuse treatment until long-term
inpatient treatment was available.

        In April of 2018, the circuit court held a review hearing and the guardian moved to
revoke petitioner’s improvement period. Petitioner did not appear for the hearing, but was
represented by counsel. According to the guardian, petitioner discontinued her drug treatment
and failed to communicate with the multidisciplinary team (“MDT”). Ultimately, the circuit
court found that petitioner failed to comply with the case plan and terminated petitioner’s post-
adjudicatory improvement period. The case was set for a dispositional hearing.

        The circuit court held the final dispositional hearing in June of 2017 and ordered
petitioner to drug screen at the outset of the hearing. Petitioner tested positive for benzodiazepine
and methadone and admitted to using both substances without a valid prescription for either.
Petitioner moved for a post-dispositional improvement period. In support, petitioner proffered
that she experienced a substantial change in circumstances on the basis that she had stable
housing, employment, would soon have a motor vehicle, and had rejoined a church. The DHHR
and guardian moved to terminate petitioner’s parental rights.

        Ultimately, the circuit court found that petitioner failed to comply with her post-
adjudicatory improvement period. Further, the circuit court found petitioner did not demonstrate
a substantial change in circumstances that rendered her likely to fully participate in a second
improvement period. Accordingly, the circuit court denied petitioner’s motion for a post-
dispositional improvement period. Additionally, the circuit court found that petitioner habitually
abused controlled substances to the extent that her parenting was seriously impaired and had not
followed through with the recommended and appropriate treatment to improve her capacity for
adequate parental functioning. Therefore, the circuit court concluded that there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse or
neglect. The circuit court terminated petitioner’s parental, guardianship, and custodial rights and



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denied her motion for post-termination visitation. The circuit court memorialized its decision in
its June 22, 2018, order. Petitioner now appeals that order.2

              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.

        On appeal, petitioner argues that the circuit court erred in denying her motion for a post-
dispositional improvement period because she experienced a substantial change in
circumstances. Petitioner asserts that she found employment, housing, and returned to church by
the dispositional hearing and would soon have purchased a vehicle for transportation. Petitioner
further asserts that a less-restrictive disposition than termination of parental rights would have
been in the best interest of the child. We disagree.

        West Virginia Code § 49-4-610(3) provides that a circuit court may grant a post-
dispositional improvement period when “[t]he respondent moves in writing for the improvement
period” and “demonstrates, by clear and convincing evidence, that the respondent is likely to
fully participate in the improvement period[.]” Further West Virginia Code § 49-4-610(3)(D)
provides that, if a respondent was previously granted an improvement period, a respondent must
“demonstrate[] that since the initial improvement period, the respondent has experienced a
substantial change in circumstances” and that “due to that change in circumstances, the
respondent 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 (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.”).
                                                            
              2
       The father’s parental rights were also terminated below. According to the parties, the
permanency plan for H.S. is adoption in his relative foster placement.



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        The circuit court correctly denied petitioner’s motion for a post-dispositional
improvement period because petitioner could not demonstrate that her change in circumstances
made her likely to fully participate in an improvement period. In her brief, petitioner admits that
“there is without question an absence of [petitioner’s] presence and participation during the
pendency of her original improvement period[.]” Petitioner provides no excuse as to why she did
not participate in the proceedings or case plan. Additionally, although petitioner asserted
multiple changes in her lifestyle, she does not address how these changes impacted her ability to
participate in an improvement period. Most concerning, however, petitioner continued to abuse
controlled substances throughout the proceedings, as evidenced by her positive drug screen
during the final dispositional hearing. Petitioner could show no change in her behavior since the
filing of the petition. Accordingly, we find no error in the circuit court’s decision to deny
petitioner’s motion for a post-dispositional improvement period.

        Petitioner’s lack of progress also supports the termination of her parental, guardianship,
and custodial rights to the child. West Virginia Code § 49-4-604(b)(6) provides that a circuit
court may 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 welfare of the children. West Virginia Code § 49-4-604(c)(1)
provides that there is no reasonable likelihood that 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 . . . [has] not responded to or followed through the
recommended and appropriate treatment[.]” Petitioner admitted that her substance abuse
negatively affected her ability to parent. Yet, despite an attempt at substance abuse treatment,
petitioner continued to abuse controlled substances. On appeal, petitioner declares that there is
no evidence that she cannot be successfully rehabilitated into an effective parent. However, the
record shows that petitioner refused to cooperate with rehabilitation. Further, as petitioner’s
substance abuse remained unchecked, the child would necessarily be exposed to continued
neglect while in her care. It is against the child’s best interests to be cared for by a neglectful
parent. We have also held as follows:

               “Termination 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). The record supports the circuit
court’s findings that there was no reasonable likelihood petitioner could have remedied the
conditions of abuse and neglect in the near future and that termination of her parental rights was
in the best interest of the child. Accordingly, we find no error with the circuit court’s termination
of petitioner’s parental, guardianship, and custodial rights.



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         Finally, petitioner argues that the circuit court erred in denying her motion for post-
termination visitation. Petitioner stresses that the allegations did not involve “active abuse,” but
rather passive abuse due to her substance abuse addiction and homelessness. Petitioner further
asserts that the child has a strong emotional bond with her. In regard to post-termination
visitation, we have previously held that

       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 a 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. 8, In re Isaiah A., in part, 228 W.Va. 176, 718 S.E.2d, 775 (2010). Further, “a close
emotional bond generally takes several years to develop.” In re Alyssa W., 217 W.Va. 707, 711,
619 S.E.2d 220, 224 (2005). Although petitioner asserts that she has a strong emotional bond
with the child, she does not cite to the record in support. Rather, the record reflects that petitioner
left her child in the care of others in order to pursue her addiction and did not visit with the child
during her improvement period. Additionally, petitioner’s argument that she did not “actively”
abuse her child further underscores her lack of understanding of her conduct and its effect on the
the child. West Virginia Code § 49-1-201 provides that a neglected child is one “[w]hose
physical or mental health is harmed or threatened by a present refusal, failure, or inability of the
child’s parent, guardian or custodian to supply the child with necessary food, clothing, shelter,
supervision, medical care or education[.]” This code section does not differentiate between
“active” and “passive” forms of abuse. Petitioner admitted that her substance abuse negatively
affected her ability to parent her child and that construes neglect under the West Virginia Code.
Accordingly, we find no error in the circuit court’s denial of post-termination visitation.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 22, 2018, order is hereby affirmed.


                                                                                            Affirmed.

ISSUED: November 21, 2018


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


 


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