                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                      FILED
In re D.S.
                                                                                 February 23, 2018
No. 17-0744 (Preston County 16-JA-60)                                            EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 


                                                          MEMORANDUM DECISION
         Petitioner Mother M.S., by counsel Jeremy B. Cooper, appeals the Circuit Court of
Preston County’s July 20, 2017, order terminating her parental rights to D.S.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”), Cheryl L.
Warman, filed a response on behalf of the child also in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in terminating her parental rights when less-
restrictive alternatives were available.

        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 July of 2016, the DHHR filed an abuse and neglect petition against petitioner alleging
that she was involved in a motor vehicle accident in which the child was not properly restrained
in the vehicle, that the driver of the vehicle was impaired due to the consumption of illegal drugs,
and that petitioner allowed the child to be a passenger in a vehicle which was operated by an
intoxicated driver. The DHHR also alleged that petitioner consumed illegal drugs with the driver
prior to the accident and that her drug use impaired her ability to properly care for the child. The
DHHR further alleged that petitioner’s drug abuse and untreated mental illness caused her to
abuse and neglect the child.

        In August of 2016, the circuit court held a preliminary hearing and found that placing the
child in petitioner’s care “would be contrary to her welfare and best interests.” Later in August,
the circuit court held an adjudicatory hearing during which petitioner stipulated to failing to
properly restrain the child during the vehicle collision and failing to address her issues with
                                                            
              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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mental health and the use of controlled substances. The circuit court accepted her stipulation and
granted a post-adjudicatory improvement period, which required that she (1) participate in
supervised visitation, (2) participate in parenting classes, (3) submit to random drug screens, (4)
submit to mental health and substance abuse treatment, and (5) undergo a psychological
evaluation.

        Several review hearings were held to assess petitioner’s progress in her post-adjudicatory
improvement period. The circuit court was advised that service providers were concerned that
petitioner was overmedicating with prescription drugs, as she tested positive for illicit drugs and
obtained drugs from multiple physicians, often for short periods of time. The circuit court
ordered petitioner to utilize the services of only one primary care physician in order to alleviate
concerns of “doctor shopping” and medication interactions for her diagnosed conditions. Despite
the DHHR’s concerns and recent positive drug screens, the circuit court extended petitioner’s
improvement period in March of 2017.

         In June of 2017, the circuit court held two dispositional hearings to address petitioner’s
parental rights. Petitioner requested a post-dispositional improvement period or, in the
alternative, a disposition pursuant to West Virginia Code § 49-4-604(b)(5).2 The DHHR and the
guardian moved the circuit court to terminate petitioner’s parental rights. At disposition, a
community corrections worker testified that petitioner tested positive for marijuana, alcohol,
methamphetamine, buprenorphine, and morphine during the proceedings, and failed to report for
drug screens after May 19, 2017. The worker further testified that, regarding petitioner’s
prescription drug use, her prescriptions were from multiple providers and for short durations
which made it difficult to determine whether petitioner was taking her medications as prescribed.
The worker finally testified that petitioner appeared for drug screens on two occasions and was
so impaired that the worker was concerned for her safety. Similarly, a service provider testified
that petitioner participated in services “as long as she was coherent.” The provider also testified
that petitioner would fall asleep, stumble, and write illegibly during some in-home parenting and
adult life-skills sessions. A DHHR worker testified that petitioner failed to make any significant
improvement during her improvement period, despite being provided with services and
multidisciplinary team (“MDT”) intervention. The DHHR worker also testified that petitioner
was resistant to in-patient drug treatment and consistently stated that she did not have a drug
abuse problem. Further, petitioner’s intoxication led to the suspension of her supervised
visitation with the child and she had no contact with the child after April of 2017.

        Petitioner testified that she did not have a drug problem and did not neglect her child. She
also testified that she completed parenting and adult life-skills classes, despite the provider’s

                                                            
              2
                  West Virginia Code § 49-4-604(b)(5) provides that

              [u]pon a finding that the abusing parent or battered parent or parents are presently
              unwilling or unable to provide adequately for the child’s needs, commit the child
              temporarily to the care, custody, and control of the state department, a licensed
              private child welfare agency, or a suitable person who may be appointed guardian
              by the court.


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testimony to the contrary. According to petitioner, any issues with the completion of her services
were due to the failure of the workers and service providers to contact her. She further testified
that she stopped appearing for drug screening because of her employment and did not go to in-
patient drug treatment because she could not afford to. At the conclusion of the hearing, the
circuit court found that petitioner demonstrated an inadequate capacity to solve the issues of
abuse and neglect on her own or with help, was habitually addicted to controlled substances to
the extent that her parenting skills had been seriously impaired, and failed to follow through with
treatment that could have improved her capacity for parental functioning. Ultimately, the circuit
court terminated petitioner’s parental and custodial rights upon findings that there was no
reasonable likelihood that she could substantially correct the conditions of abuse and neglect in
the near future and that termination was necessary for the child’s welfare.3 It is from the
dispositional order dated July 20, 2017, 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).

        On appeal, petitioner argues that the circuit court erred in terminating her parental rights
when less-restrictive alternatives were available. Specifically, petitioner argues that the circuit
court could have granted her a post-dispositional improvement period. We disagree. Pursuant to
West Virginia Code § 49-4-610(3)(D), a circuit court may grant a parent an improvement period
at disposition if, “the [parent] demonstrates that since the initial improvement period, the [parent]
has experienced a substantial change in circumstances. Further, the [parent] shall demonstrate
that due to that change in circumstances, the [parent] is likely to fully participate in the
improvement period . . . .” Here, petitioner was previously granted a post-adjudicatory
improvement period. However, the record demonstrates that she could not establish a substantial
change in circumstances since her initial improvement period or that she was likely to fully
participate in a new improvement period.

                                                            
              3
        The father’s parental rights remain intact. However, the circuit court found that he was
unable to care for the child at the time of its ruling and left custody of the child with the DHHR.
According to the parties, the permanency plan is for the child to remain in the home of a cousin.
                                                               3

 
        Petitioner argues that she provided sufficient evidence to suggest that she stabilized her
medications for her various health conditions, demonstrating a significant change in
circumstances. However, petitioner testified at disposition that she did not have a substance
abuse problem, even though she tested positive for marijuana at the outset of her improvement
period and for other non-prescribed medications throughout the proceedings. Moreover,
petitioner’s “evidence” was her own self-serving testimony that she ceased taking any proscribed
medications. We have previously held that

       [i]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
       of the basic allegation pertaining to the alleged abuse and neglect or the
       perpetrator of said abuse and neglect, results in making the problem untreatable
       and in making an improvement period an exercise in futility at the child’s
       expense.

In re Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Petitioner failed to acknowledge her substance
abuse problem throughout the entirety of the proceedings, claiming that her behavior was a result
of the interaction of several prescribed medications. Petitioner ignores the fact that she was under
the influence of controlled substances when she was in a collision in which her daughter was
unrestrained, and tested positive for marijuana and other non-prescribed medications. Further,
petitioner was instructed to see only one primary care physician in an effort to properly manage
her medications but failed to follow through with that order. Accordingly, we agree with the
circuit court’s finding that petitioner failed to show that she was likely to participate in an
improvement period or establish a substantial change in circumstances since her initial post-
adjudicatory improvement period.

        Next, petitioner argues that, in the alternative, the circuit court should have granted an
alternative disposition pursuant to West Virginia Code § 49-4-604(b)(5), which would allow the
child to remain in the custody of the DHHR and leave petitioner’s parental rights intact.
According to West Virginia Code § 49-4-604(b)(6), 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 child’s
welfare. Pursuant to West Virginia Code § 49-4-604(c)(3), a situation in which there is no
reasonable likelihood that the conditions of abuse or neglect can be substantially corrected
include one in which “[t]he abusing parent . . . ha[s] not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts[.]” We have also held that
“[t]ermination . . . may be employed without the use of intervening less[-]restrictive alternatives
when it is found that there is no reasonable likelihood . . . that conditions of neglect or abuse can
be substantially corrected.” Syl. Pt. 7, in part, In re Katie S., 198 W.Va. 79, 82, 479 S.E.2d 589,
592 (1996).

       Contrary to petitioner’s argument, substantial evidence established that she failed to
follow through with rehabilitative efforts. Petitioner continuously arrived to her classes while
under the influence. At disposition, a service provider testified that petitioner often came to her


                                                 4

 
parenting classes in an incoherent state, stumbling, slurring her speech, and falling asleep.
Petitioner also went to two supervised visits with the child while under the influence of
controlled substances. At the time, petitioner refused medical assistance and insisted that she did
not have a substance abuse problem. Her behavior was such that services were terminated due to
her non-compliance and petitioner did not see the child after April of 2017. Moreover, the record
demonstrates that petitioner’s behavior escalated and she was arrested and indicted for her third
offense of shoplifting, with all underlying occurrences happening during the extended post-
adjudicatory improvement period. Given this evidence, the circuit court found that there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect in the near future and that termination was necessary for the child’s welfare, specifically
noting that that there were no less-drastic alternatives than termination. As previously mentioned,
circuit courts are to terminate parental rights upon such findings. Accordingly, we find no error.

       Lastly, because the child remains in the custody of the DHHR and permanent placement
has not been achieved pursuant to Rule 3(n) of the Rules of Procedure for Child Abuse and
Neglect Proceedings, this Court reminds the circuit court of its duty to establish permanency for
the child.4 Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings
requires:

              At least once every three months until permanent placement is achieved as
              defined in Rule 6, the court shall conduct a permanent placement review
              conference, requiring the multidisciplinary treatment team to attend and report as
              to progress and development in the case, for the purpose of reviewing the progress
              in the permanent placement of the child.

        Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules
of Procedure for Child Abuse and Neglect Proceedings to find permanent placement for children
within twelve months of the date of the disposition order. As this Court has stated,


                                                            
              4
       According to Rule 3(n) of the Rules of Procedure for Child Abuse and Neglect
Proceedings,

              “Permanent placement” of a child shall mean:

              (1) The petition has been dismissed and the child has been returned to the home or
              to a relative with no custodial supervision by the Department;

              (2) The child has been placed in the permanent custody of a non-abusive parent;
              or

              (3) A permanent out-of-home placement of the child has been achieved following
              entry of a final disposition order. A permanent out-of-home placement has been
              achieved only when the child has been adopted, placed in a legal guardianship,
              placed in another planned permanent living arrangement (APPLA), or
              emancipated[.] 
                                                               5

 
               [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
       placement of an abused and neglected child following the final dispositional order
       must be strictly followed except in the most extraordinary circumstances which
       are fully substantiated in the record.

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that

               [i]n determining the appropriate permanent out-of-home placement of a
       child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4-
       604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
       home for the child and shall consider other placement alternatives, including
       permanent foster care, only where the court finds that adoption would not provide
       custody, care, commitment, nurturing and discipline consistent with the child’s
       best interests or where a suitable adoptive home can not be found.

Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 20, 2017, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: February 23, 2018


CONCURRED IN BY:

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




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