                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS         FILED
                                                                                November 21, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
In re P.W., E.W., A.W., and K.S.                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 

No. 18-0635 (Cabell County 17-JA-145, 17-JA-146, 17-JA-147, and 17-JA-148)

                                                          MEMORANDUM DECISION
        Petitioner Mother M.W., by counsel Allison K. Huson, appeals the Circuit Court of
Cabell County’s June 12, 2018, order terminating her parental rights to P.W., E.W., A.W., and
K.S.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”), Robert E. Wilkinson, 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 and terminating her parental rights rather
than imposing a less-restrictive dispositional alternative.

        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 June of 2017, the DHHR filed an abuse and neglect petition alleging that petitioner
abused alcohol and that her alcohol abuse negatively affected her ability to parent the children.
The DHHR alleged that petitioner was found unresponsive in her home in the presence of three
of the children and the fourth child was not picked up from her bus stop after school. According
to the DHHR, petitioner was visibly intoxicated and arrested for child neglect. Additionally, the
DHHR alleged that petitioner was prescribed Suboxone and methadone at different times during
the last three years. Petitioner’s children disclosed that they had seen petitioner exchange pills
for cash during this time. The children were removed from petitioner’s custody and placed with
their maternal grandmother.


                                                            
              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 an adjudicatory hearing in October of 2017 and petitioner
stipulated to the allegations of abuse and neglect contained in the petition. The circuit court noted
that petitioner was inconsistent with drug screening and recently tested positive for alcohol.
Nevertheless, the circuit court granted petitioner a post-adjudicatory improvement period. In
November of 2017, the circuit court reviewed petitioner’s improvement period and found that
petitioner completed a twenty-eight-day substance abuse treatment program and entered into a
new long-term treatment program. Accordingly, the circuit court found that petitioner was
complying with her improvement period.

        The circuit court held a subsequent review hearing in February of 2018. Petitioner did not
appear, but was represented by counsel. Based on representations of counsel and the record, the
circuit court found that petitioner was discharged from her substance abuse treatment facility in
January of 2018 for failing to report her prescription for pain medication. Following her
discharge, petitioner overdosed in mid-February of 2018. At the time of the review hearing,
petitioner had not re-entered a treatment program. The circuit court found that petitioner failed to
abide by the terms of her improvement period, terminated her improvement period, and set a
dispositional hearing.

         In May of 2018, the circuit court held a dispositional hearing. Petitioner moved for a
post-dispositional improvement period on the basis that she had entered into a long-term
substance abuse treatment facility in March of 2018 and continued to participate in treatment.
Petitioner admitted that she participated in multiple substance abuse treatments in the past to
remedy “probably [thirteen], [fourteen] years” of addiction, but never successfully completed a
treatment program. According to petitioner, the current program was divided into four phases
and she was on the third phase. Petitioner did not give an estimate as to when she would
complete the program. A DHHR worker testified and opined that it was in the children’s best
interest for the petitioner’s parental right to be terminated. According to the worker, permanent
guardianship would expose the children to continued risk of placement with the mother and that
the two oldest children did not wish to return to her care. The grandmother and current caretaker
of the children, C.M., testified that “for the two older children it’s probably too late,” but that she
desired petitioner’s parental rights to remain intact for the benefit of the younger children.
Additionally, the guardian asserted that he believed that a permanent legal guardianship in the
custody of the grandmother was in the best interest of the children because of the safety provided
in their relative placement.

       Ultimately, the circuit court denied petitioner’s motion for a post-dispositional
improvement period. The circuit court weighed petitioner’s decade-long addiction against her ten
weeks of recent sobriety and found that there was no reasonable likelihood that petitioner could
substantially correct her addiction in the near future. The circuit court concluded that it was in
the best interest of the children to terminate petitioner’s parental rights. Accordingly, the circuit




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court terminated petitioner’s parental rights in its June 12, 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.

        First, petitioner argues that the circuit court erred in denying her motion for a post-
dispositional improvement period. Petitioner asserts that she demonstrated a substantial change
in circumstances because she “promptly re-enrolled in treatment” after being dismissed from her
first substance abuse treatment. Petitioner argues that her ten-week participation in the
subsequent treatment program proves she could fully comply with the terms of a post-
dispositional improvement period. We find no error.

        West Virginia Code § 49-4-610(3) provides that a circuit court may grant a post-
dispositional improvement period when the parent “files a written motion requesting the
improvement period” and the parent “demonstrates, by clear and convincing evidence, that the
[parent] is likely to fully participate in the improvement period[.]” Further, West Virginia Code §
49-4-610(3)(D) provides that, if the parent has previously been granted an improvement period
that parent must “demonstrate[] 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 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

                                                            
              2
        According to the parties, the fathers are either deceased or had their parental rights
terminated. The permanency plan for the children is adoption in their current relative foster
placement.



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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.”).

        The circuit court did not abuse its discretion in denying petitioner’s motion for a post-
dispositional improvement period. During the proceedings, petitioner entered into and was
discharged from a substance abuse treatment facility. Although petitioner argues that she
“promptly re-enrolled in treatment,” it is clear from the record that petitioner abused substances
for a month and a half and overdosed during that period. Further, despite the services she was
provided from November of 2017 to January of 2018 in the first treatment, petitioner could not
control her substance abuse. Considering this example and testimony regarding the numerous
treatments petitioner previously underwent to resolve her addiction, petitioner entering a new
long-term substance abuse treatment is not a substantial change in circumstances, as there is
nothing in the record that suggests petitioner was more likely to be successful in this program.
“[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[.]” Cecil T., 228 W.Va.
at 91, 717 S.E.2d at 875, Syl. Pt. 4 (2011). Again, considering the numerous treatments that
petitioner previously and unsuccessfully attempted, it was unlikely that another substance abuse
treatment program would ultimately be successful. Accordingly, we find no abuse of discretion
in the circuit court’s denial of petitioner’s motion for a post-dispositional improvement period.

        Petitioner also argues that the circuit court erred in terminating her parental rights for two
reasons. First, petitioner argues that the record below does not support a finding that there was no
reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in
the near future. Second, petitioner argues that the circuit court erred by not ordering a permanent
legal guardianship, which was a less-restrictive alternative to the termination of her parental
rights. However, we find no error in the circuit court’s termination of petitioner’s parental rights.

        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 children. Further, West Virginia Code § 49-4-604(c)(1) provides that there is no
reasonable likelihood that the conditions of neglect or abuse can be substantially corrected when
the 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[.]” The record
supported a finding that there was no reasonable likelihood that the conditions of abuse and
neglect could be substantially corrected because petitioner admitted to multiple failed addiction
treatment attempts and failed again to complete treatment during these proceedings. As
previously mentioned, the circuit court does not need to exhaust every possibility of parental
improvement. Petitioner’s attempt and failure to remedy her addiction simply deepened the
pattern of her past behavior. Therefore, despite petitioner entering into a subsequent treatment
program, there was no reason to expect that petitioner would necessarily be successful on this
attempt. Accordingly, the record supports a finding that there was no reasonable likelihood that
the conditions of abuse and neglect could be substantially corrected.




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       With respect to petitioner’s argument that the circuit court should have granted
permanent legal guardianship to C.M. rather than terminating petitioner’s parental rights, we
have previously 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). The record supports the circuit
court’s finding that there was no reasonable likelihood that the conditions of abuse or neglect
could be substantially corrected within a reasonable time and that termination was necessary for
the child’s welfare. While, petitioner argues on appeal that the grandmother and the guardian
both asserted that termination of parental rights was not in the best interest of the children,3 she
fails to recognize that the two older children did not desire to be returned to her custody. The
guardian expressed that these older children did not “really care, they just want to stay where
they are at.” Also, the grandmother acknowledged that “for the older children it’s probably too
late.” Moreover, every party to the proceedings agreed that it was in the children’s best interests
to avoid sibling separation. By terminating petitioner’s parental rights, the circuit court ensured
that permanency was achieved for the children. The circuit court correctly found that termination
of parental rights was in the children’s best interests and in accordance with the wishes of the
children of appropriate maturity.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 12, 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

DISQUALIFIED:
Justice Paul T. Farrell sitting by temporary assignment.
                                                            
              3
         It is worth noting that, in response to petitioner’s appeal, the guardian supports the
circuit court’s order terminating petitioner’s parental rights.



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