                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                   FILED
In Re: S.M. & C.P.                                                              April 13, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
No. 14-1126 (Mercer County 12-JAT-468 & 13-JAT-459)                            OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Mother M.H., by counsel Gerald R. Linkous, appeals the Circuit Court of
Mercer County’s October 7, 2014, order terminating her parental rights to S.M. and C.P. The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans,
filed its response in support of the circuit court’s order and a supplemental appendix. The
guardian ad litem, John Earl Williams Jr., filed a response on behalf of the children supporting
the circuit court’s order. On appeal, petitioner alleges that the circuit court erred in denying her
motion for a dispositional improvement period.

        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 December of 2012, the DHHR filed an abuse and neglect petition against the parents
alleging that S.M. missed a total of twenty-one days of school during the 2012-2013 school year.
By order dated February 22, 2013, the circuit court granted petitioner a pre-adjudicatory
improvement period despite petitioner’s failure to attend the preliminary hearing. In May of
2013, the circuit court held a review hearing and found that S.M. was missing one out of every
three school days. The circuit court further found that petitioner had been arrested on a charge of
burglary and that her improvement period was not successful. After the hearing, petitioner
submitted to a drug screen and tested positive for cannabinoids and hydromorphone. Sometime
after this hearing, petitioner became a fugitive.

        In October of 2013, the DHHR filed an amended petition that included petitioner’s other
child, C.P., and alleged that C.P. lived with his paternal aunt. The amended petition further
alleged that petitioner’s parenting skills were impaired by her use of alcohol or other controlled
substances to a degree that posed a risk to the children. The petition also contained information
pertaining to petitioner’s arrest for burglary in May of 2013, and a subsequent capias issued for
her in Tazewell County, Virginia, in June of 2013. According to the amended petition,
petitioner’s whereabouts were unknown. Following a hearing on the amended petition, the circuit
court placed S.M. in the DHHR’s custody and left C.P. with his aunt.



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        In December of 2013, the circuit court held an adjudicatory hearing. Petitioner did not
attend due to her incarceration. Ultimately, the circuit court found that petitioner neglected the
children. In September of 2014, the circuit court held a dispositional hearing. Petitioner, who had
recently been released from incarceration, moved for a dispositional improvement period.
Additionally, the DHHR presented testimony that, following her positive drug screen in May of
2013, petitioner “disappeared” after violating her probation and went into hiding. Testimony
established that petitioner’s whereabouts were unknown to the DHHR for approximately one
year. Petitioner also admitted to the circuit court that if she had not been apprehended by law
enforcement, she would still be in hiding. The following month, the circuit court entered a
dispositional order, denied petitioner’s request for a dispositional improvement period, and
terminated her parental rights. Petitioner appeals from the dispositional order.

       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, the Court finds
no error in the circuit court’s denial of petitioner’s motion for a dispositional improvement
period.

         Pursuant to West Virginia Code § 49-6-12(c)(4), a circuit court may grant a dispositional
improvement period after a parent has previously been awarded an improvement period upon a
showing that 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.” While petitioner argues that she satisfied these burdens, the Court disagrees. Petitioner
cites to her own testimony below, wherein she stated that she experienced a substantial change in
circumstances because she ceased using drugs during her incarceration. Petitioner further
testified that because her parole was dependent on her remaining drug free, she would remain as
such.

        However, it is important to note that, at the time petitioner was granted a pre-adjudicatory
improvement period, the only allegations against her were for S.M.’s truancy. After obtaining a
pre-adjudicatory improvement period, petitioner not only continued to allow the child to be
truant, but she engaged in abuse of illegal substances, was arrested, and eventually became a

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fugitive. Accordingly, the circuit court found that petitioner abandoned her children and that she
would have remained a fugitive if not for her capture. Further, in denying petitioner’s motion, the
circuit court found that petitioner “knew her parenting ability was under [c]ourt scrutiny when
she fled from justice [and] put her needs before the needs of the children[.]” This evidence not
only establishes petitioner’s unwillingness to comply with services, but further evidences a
diminution in the conditions of neglect that necessitated the petition’s filing. Simply put, the
Court does not agree that because petitioner established she was being regularly drug tested as a
condition of parole, that her substance abuse issues were resolved or that she satisfied her burden
of establishing she was likely to fully participate in a dispositional improvement period. As such,
it is clear that the circuit court did not err in denying petitioner’s motion for a dispositional
improvement period, as petitioner could not establish either a substantial change in
circumstances or that she was likely to fully participate in the improvement period.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
October 7, 2014, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: April 13, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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