                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


In re: G.G., L.W., and K.W.                                                       FILED
No. 16-1086 (Jackson County 16-JA-19, 16-JA-20, & 16-JA-21)                    June 16, 2017
                                                                               RORY L. PERRY II, CLERK

                                                                             SUPREME COURT OF APPEALS

                                                                                 OF WEST VIRGINIA


                                MEMORANDUM DECISION
        Petitioner Mother B.S., by counsel Ryanne A. Ball, appeals the Circuit Court of Jackson
County’s October 12, 2016, order terminating her parental rights to G.G, L.W., and K.W.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”), Erica Brannon Gunn, 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
request for a post-adjudicatory improvement period and in terminating her parental rights.

        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 March of 2016, the DHHR filed an abuse and neglect petition against petitioner and
her boyfriend.2 Specifically, the petition alleged that K.W. was born drug-addicted and suffered
from withdrawal symptoms. The petition further alleged that petitioner abused drugs throughout
her pregnancy and continued to use drugs while acting as the caregiver for the children, thereby
affecting her ability to properly parent the children and leading to G.G.’s abandonment.

        In May of 2016, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the allegations in the petition and the circuit court adjudicated her as an abusing
parent. Specifically, petitioner admitted that her substance abuse negatively affected her ability
to parent the children. Following the adjudicatory hearing, petitioner filed a motion for a post­
adjudicatory improvement period. Subsequently, a multi-disciplinary team (“MDT”) held two
meetings wherein the MDT agreed that petitioner should be granted an improvement period 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).
       2
           Petitioner’s boyfriend, T.W., is the father of L.W. and K.W.
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the following conditions: that she enter an in-patient drug rehabilitation treatment program and
submit to random drug screening as a prerequisite for visitation with the children.

        In August of 2016, the DHHR filed a notice of intent to recommend the termination of
petitioner’s parental rights. Also in August of 2016, the circuit court held a dispositional hearing
wherein it addressed petitioner’s motion for a post-adjudicatory improvement period and the
DHHR’s motion to terminate her parental rights. A DHHR worker testified that, during the
pendency of the case, petitioner failed drug screens on numerous occasions, including testing
positive for methamphetamines and benzodiazepines. The worker also testified that, as a result of
her missed and positive drug screens, petitioner had not visited with the children. The worker
further testified that petitioner failed to complete an in-patient drug rehabilitation treatment
program and was terminated from the Beckley Women’s Treatment Program.3 Petitioner
admitted to daily drug abuse and to struggling with addiction for sixteen years. She testified that
she previously enrolled in two different in-patient drug rehabilitation treatment programs and
failed to complete either program.4 Based upon this evidence, by order entered on October 12,
2016, the circuit court found that there was no reasonable likelihood petitioner could
substantially correct the conditions of abuse and neglect, terminated her parental rights to the
children, and denied her motion for a post-adjudicatory improvement period.5 It is from that
order that petitioner appeals.

         The Court has previously established the following standard of review in cases such as
these:

                “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
         3
        The Beckley Women’s Treatment Program is an all-women’s drug treatment program
and rehabilitation center.
         4
         The record below indicates that petitioner voluntarily left one in-patient drug
rehabilitation treatment program and was terminated from a second program for failing a random
drug screen.
         5
        The parental rights of both biological parents of L.W. and K.W. were terminated below.
The guardian states that L.W. and K.W. were placed in the home of their paternal grandmother
and the permanency plan is adoption into that home. Additionally, petitioner’s parental rights to
G.G. were terminated below. M.G., the non-offending father of G.G., retained his parental rights
because there were no allegations of abuse or neglect against him. According to the guardian,
G.G. currently resides with his non-offending father with a permanency plan to remain in the
home.
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       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 post-adjudicatory improvement
period or in its termination of her parental rights.

          Petitioner first argues on appeal that the circuit court erred in denying her motion for a
post-adjudicatory improvement period. In support of her argument, petitioner asserts that she
established that she was likely to fully participate in an improvement period as evidenced by her
repeated attempts to enroll in in-patient drug rehabilitation treatment programs. Upon our review,
however, the Court finds that petitioner failed to satisfy the applicable burden to obtain an
improvement period. Regarding whether an improvement period should be granted, we have
often noted that 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, 778 S.E.2d 338 (2015) (stating that “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)
(holding that “[i]t is within the court’s discretion to grant an improvement period within the
applicable statutory requirements”).We have also held that a parent’s “entitlement to an
improvement period is conditioned upon the ability of the [parent] to demonstrate ‘by clear and
convincing evidence, that the respondent is likely to fully participate in the improvement period .
. . .’” In re: Charity H., 215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004).

        Here, it is clear from the record that petitioner failed to demonstrate her ability to fully
participate in an improvement period. Petitioner has an extensive history of drug abuse. The
circuit court was presented with evidence that petitioner continued to abuse drugs throughout the
underlying proceedings and failed to complete any in-patient drug rehabilitation treatment
programs. According to the record, petitioner tested positive for methamphetamines and
benzodiazepines. Petitioner’s own testimony that she abused drugs daily supports the circuit
court’s finding that she was unlikely to make a meaningful change with regard to her substance
abuse and parenting issues. Petitioner clearly failed to establish that she was likely to fully
participate in a post-adjudicatory improvement period, and we find no error in the circuit court
denying petitioner’s motion.

        Petitioner next argues that the circuit court erred in terminating her parental rights
without granting her request for an improvement period. The Court, however, does not agree.
Petitioner’s argument ignores the facts of the case presented below. Specifically, the circuit court
found that petitioner failed to remedy the conditions of abuse and neglect in the home. These
findings were based on substantial evidence, including evidence that petitioner abused drugs
daily and failed to complete any in-patient drug rehabilitation treatment programs. Further, we
have previously held that “a parent charged with abuse and/or neglect is not unconditionally
entitled to an improvement period.” Charity H., 215 W.Va. at 216, 599 S.E.2d at 639 (2004).




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       Pursuant to West Virginia Code § 49-4-604(c)(3), a situation in which there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes
one in which

       [t]he abusing parent . . . [has] not responded to or followed through with a
       reasonable family case plan or other rehabilitative efforts of social, medical,
       mental health or other rehabilitative agencies designed to reduce or prevent the
       abuse or neglect of the child, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child .
       ...

Further, we have 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).

        Based upon the substantial evidence outlined above, the circuit court found there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect because, according to the circuit court, her “history is an indicator that she is unwilling or
unable to remedy her substance abuse problems.” The circuit court further found that termination
of petitioner’s parental rights was necessary for the children’s welfare. Pursuant to West Virginia
Code § 49-4-604(b)(6), circuit courts are directed to terminate a parent’s parental rights upon
such findings. Accordingly, we find no error below.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 12, 2016, order is hereby affirmed.

                                                                                           Affirmed.

ISSUED: June 16, 2017


CONCURRED IN BY:

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

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