                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS

                                                                                     FILED
In re K.C., K.T-G., K.T., K.G.-1, and K.G.-2.                                    October 19, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
No. 18-0361 (Wood County 16-JA-60, 61, 62, 63, and 17-JA-265)                        OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
       Petitioner Mother T.C., by counsel Courtney L. Ahlborn, appeals the Circuit Court of
Wood County’s March 27, 2018, order terminating her parental rights to K.C., K.T-G., K.T.,
K.G.-1, and K.G.-2.1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Lee Niezgoda, filed a response in support of the circuit court’s order. The
guardian ad litem (“guardian”), Eric K. Powell, 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
terminating her parental rights without the imposition of a less-restrictive alternative and in
denying her 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.

       On May 19, 2016, the DHHR filed an abuse and neglect petition alleging that petitioner
and her boyfriend were arrested and incarcerated, for delivery of heroin, and that they abused
and sold heroin in the home they shared with the children.2 The DHHR also alleged that the
home was unsafe and unsanitary for the children. Petitioner waived the preliminary hearing. On
                                                            
              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, they will be referred to as K.G.-1 and K.G.-2, respectively, throughout this memorandum
decision.
              2
        At the time the original petition was filed, petitioner and her boyfriend had one child
together, K.G.-1. Petitioner is also the biological mother of K.C. Petitioner’s boyfriend’s
biological child, K.T., also lived in the home. Although not a biological child of petitioner or her
boyfriend, the boyfriend had custody of K.T-G. and claimed to be the child’s psychological
parent. K.T. and K.T-G. share the same mother. Petitioner and her boyfriend are also the
biological parents of K.G.-2, who was born after the original petition was filed.  
                                                                   1

 
June 2, 2016, the circuit court held an adjudicatory hearing during which petitioner stipulated to
the allegations of abuse and neglect. The circuit court granted petitioner a six-month post-
adjudicatory improvement period and ordered her to complete parenting and adult life skills
classes and comply with drug screens and treatment for her addiction.

        On February 21, 2017, the circuit court held a review hearing and granted petitioner an
extension of her post-adjudicatory improvement. The DHHR reported that petitioner had been
compliant with the terms and conditions of her post-adjudicatory improvement period. On April
28, 2017, the circuit court held a review hearing. The DHHR reported that petitioner screened
positive for illegal substances on April 3, 2017, and April 17, 2017. She admitted to using heroin
on April 17, 2017, but denied other use. Petitioner was ordered to continue participating in
services, and the matter was scheduled for further review in June of 2017. On June 2, 2017, the
circuit court held a review hearing where it found that petitioner was compliant with her
improvement period. The circuit court granted petitioner an additional six-month improvement
period.

        On August 23, 2017, the circuit court held a review hearing. The DHHR reported that
petitioner had had several positive drug screens for heroin. Counsel for petitioner indicated that
petitioner would submit to inpatient substance abuse treatment. According to the guardian, one
of the children reported allegations of “drug activity” in the home during a visit. The circuit court
suspended visitation with the children until petitioner could produce “a series of clean and
normal drug screens.” Following the hearing, during a forensic interview, the child again
disclosed that petitioner was packaging drugs in the home during an unsupervised visit.

        Following the birth of K.G.-2 in September of 2017, the DHHR filed an amended petition
alleging, among other things, that petitioner used heroin throughout her pregnancy with K.G.-2.
The child’s umbilical cord also tested positive for heroin. On October 20, 2017, the circuit court
held a review hearing, and the DHHR reported that petitioner continued to test positive for illicit
substances but was seeking inpatient treatment. On November 7, 2017, petitioner did not appear
for what was scheduled as an adjudicatory hearing on the amended petition, but was represented
by counsel. The DHHR reported that petitioner checked into an inpatient substance abuse
treatment program on October 31, 2017, but left on November 2, 2017, without completing the
program. On December 20, 2017, the circuit court held an adjudicatory hearing on the amended
petition and petitioner admitted to using heroin during her pregnancy with K.G.-2. Petitioner was
adjudicated of abuse and neglect as to K.G.-2 and the continued abuse and neglect of her other
children based upon her substance abuse and packaging drugs in the children’s presence.

        On February 23, 2018, the circuit court held a dispositional hearing. The DHHR
presented evidence that petitioner failed to complete inpatient substance abuse treatment and that
she continued to test positive for heroin. Out of approximately two hundred drug screens,
petitioner failed to appear for approximately sixty-three screens, tested positive on forty-two
screens, and had approximately ninety-five negative screens. Following the presentation of
testimonial evidence, the DHHR argued that the children had been in the DHHR’s custody for
twenty-one months, and that, during that time, petitioner failed to complete substance abuse
treatment. Following arguments, the circuit court noted that the children were in need of
continuity of care and caretakers and that returning to petitioner’s home was not in the children’s

                                                 2

 
best interests. The circuit court found that the DHHR made reasonable efforts during the
proceedings to reunify the family. It further found no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect. Petitioner’s request for post-termination
visitation was denied. Ultimately, the circuit court terminated petitioner’s parental rights in its
March 27, 2018, order. Petitioner now appeals that order.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). Upon our review, this Court
finds no error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred in terminating her parental rights
rather than imposing a less-restrictive dispositional alternative. In support, she argues that
disposition under West Virginia Code § 49-4-604(b)(6) “should only be considered as a last
resort.” However, West Virginia Code § 49-4-604(b)(6) provides that the circuit court may
terminate parental rights when “there is no reasonable likelihood that the conditions of neglect or
abuse can be substantially corrected in the near future” and when termination is necessary for the
welfare of the child. Further, West Virginia Code § 49-4-604(c)(3) provides that there is no
reasonable likelihood that the conditions of neglect or abuse can be substantially corrected when
the parent has not “responded to or followed through with a reasonable family case plan or other
rehabilitative efforts.”

        While petitioner was compliant with the terms and conditions of her post-adjudicatory
improvement period at the beginning of the proceedings, she resumed her substance abuse in
April of 2017 and continued to test positive for illegal substances until February of 2018, when
the dispositional hearing was held. Although she argues that she “did not give up on attempting
to get treatment,” during the twenty-one months that the proceedings were pending, petitioner

                                                            
              3
         The parental rights of K.T-G.’s and K.T.’s mother were also terminated. The parental
rights of the children’s respective fathers were also terminated. The permanency plan for K.C.,
K.G.-1, and K.G.-2 is adoption by their maternal aunt. The permanency plan for K.T. and K.T-G.
is to continue in the legal guardianship of their maternal grandparents.
                                                               3

 
failed to complete an inpatient substance abuse treatment program as required by her case plan.
Indeed, the record shows that petitioner submitted to such treatment for less than a week.
Petitioner continued to abuse substances during her pregnancy with K.G.-2, resulting in the child
being born with substances in her system. The record shows that petitioner also participated in
“drug activity” in the home during an unsupervised visit with the children in August of 2017.
Due to her failure to complete treatment, continued substance abuse, and drug activity in the
home during the proceedings, the circuit court was correct in finding that 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.

        Petitioner further asserts that her parental rights should remain intact to allow her “more
time to seek treatment for her substance abuse problem[.]” She argues that the children were
placed with her aunt, “so there was no need to terminate her parental rights.” However, we have
held as follows:

               “[C]ourts are not required to exhaust every speculative possibility of
       parental improvement . . . where it appears that the welfare of the child will be
       seriously threatened, and this is particularly applicable to children under the age
       of three years who are more susceptible to illness, need consistent close
       interaction with fully committed adults, and are likely to have their emotional and
       physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re
       R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4. The circuit court was not required to
provide petitioner every possible opportunity to improve, especially when there was no
reasonable likelihood that she would improve. Regardless of the children’s placement with a fit
relative, granting petitioner a less-restrictive dispositional alternative would only delay
permanency for the children. Finally, we have held that

               “[t]ermination 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). Accordingly, we find no error
in the circuit court’s order terminating petitioner’s parental rights rather than imposing a less-
restrictive dispositional alternative.

        Finally, petitioner argues that the circuit court erred in denying post-termination visitation
with the children. In support, she asserts that she has a “very strong bond with her children.” We
do not find this argument persuasive.



                                                  4

 
                “When parental rights are terminated due to neglect or abuse, the circuit
       court may nevertheless in appropriate cases consider whether continued visitation
       or other contact with the abusing parent is in the best interest of the child. Among
       other things, 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 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. 5, In re Christina L., 194 W.Va.
       446, 460 S.E.2d 692 (1995).
Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002). While it is uncontested that
petitioner may have a close bond with the children, her continued substance abuse and failure to
complete treatment demonstrate that continued contact with the children is not in their best
interests. Therefore, we find the circuit court did not abuse its discretion in denying petitioner
post-termination visitation with the children.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
March 27, 2018, order is hereby affirmed.

                                                                                         Affirmed.

ISSUED: October 19, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins
 
Justice Allen H. Loughry II suspended and therefore not participating
 


 




                                                5

 
