                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                      FILED
                                                                                  August 31, 2015
                                                                                RORY L. PERRY II, CLERK
In Re: A.N., A.N., A.N., & A.N.                                               SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
No. 14-1175 (Clay County 12-JA-24 through 27, & 12-JA-98 through 101)


                               MEMORANDUM DECISION
        Petitioner Mother K.N., by counsel Teresa C. Monk, appeals the Circuit Court of Clay
County’s October 3, 2014, order terminating her parental rights to A.N.-1, A.N.-2, A.N.-3, and
A.N.-4.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
William P. Jones, filed its response in support of the circuit court’s order. The guardians ad litem
(“guardians”), Herbert L. Hively II and Barbara Harmon-Schamberger, each filed summary
responses on behalf of the children in support of the circuit court’s order. On appeal, petitioner
alleges that the circuit court erred in (1) finding that petitioner failed her improvement period; (2)
finding that petitioner had a drug addiction based on two positive drug screens; and (3)
terminating petitioner’s parental rights to the children.

        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 February of 2012, the DHHR filed its first abuse and neglect petition against petitioner
and the children’s father alleging that A.N.-1 missed twenty days of school, which made that
child truant and resulted in educational neglect. At the adjudicatory hearing on the first petition,
petitioner and the children’s father stipulated to those allegations, and the circuit court granted
them improvement periods. The children remained in the home.

       1
         Because the children share the same initials, the Court will distinguish them using
numbers 1, 2, 3, and 4. The circuit court case numbers also serve to distinguish these children.
We also note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and recodified
during the 2015 Regular Session of the West Virginia Legislature. The new enactment, West
Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and became effective
ninety days after the February 19, 2015, approval date. In this memorandum decision, we apply
the statutes as they existed during the pendency of the proceedings below. Further, there were
eight case numbers issued below because these children were the subject of two abuse and
neglect proceedings filed by the DHHR. The circuit court appointed a different guardian for each
of the two proceedings below


                                                  1


         In June of 2012, the circuit court held a review hearing on the couple’s improvement
periods. At that hearing, the circuit court heard allegations of domestic violence occurring in the
home between the children’s father, petitioner, and one of the children’s grandparents. In late
June of 2012, the DHHR filed a second abuse and neglect petition against petitioner and the
children’s father alleging domestic violence in the children’s presence. According to the petition,
the DHHR and petitioner agreed to enter into a safety plan wherein she retained custody of the
children but the children’s father was to have no contact with her or the children. The children’s
father ultimately stipulated to abuse and neglect of the children by committing domestic violence
in their presence.

       Given the issues raised in the second petition and petitioner’s agreement to act in
accordance with a safety plan, at multiple hearings between September of 2012 and March of
2013, the circuit court ordered that she have no contact with the children’s father. In October of
2012, the circuit court also ordered her to remain drug and alcohol free.

        At a review hearing in December of 2012, the circuit court found that petitioner failed
two drug screens in October and November of 2012, respectively. Petitioner tested positive for
methamphetamine, amphetamine, and cannabinoid. Further, the circuit court found that
petitioner maintained contact with the children’s father. The circuit court concluded that
petitioner violated its orders to remain drug and alcohol free and to have no contact with the
children’s father. The children were removed from petitioner’s home, and the matter was set for
disposition.

        Between February and March of 2013, the circuit court held several dispositional
hearings. At those hearings, the circuit court heard evidence of petitioner’s failed drug screens
and continued contact with the children’s father. In her defense, petitioner presented the
testimony of a pharmacist who claimed that certain medications can cause false-positive results
on drug screens. However, the circuit court found that the pharmacist was not an expert in
toxicology; had not conducted any of the drug screens herein; and based his opinion on hearsay.
The circuit court terminated the children’s father’s parental rights, but it granted petitioner a
“nine-month rehabilitation period.”2 As terms and conditions of that nine-month rehabilitation
period, the circuit court ordered that petitioner again have no contact with the children’s father
and have no contact with the children apart from court-ordered visitation; remain drug and
alcohol free; submit to drug screening; complete a substance abuse evaluation; and comply with
the recommendations of that evaluation.

       Between March of 2013 and July of 2014, the circuit court held hearings with regard to
the children’s placement and petitioner’s progress. Also during that time, the circuit court
granted petitioner a second improvement period due to the DHHR’s alleged failure to timely file
a case plan, and it considered a motion to terminate petitioner’s parental rights, which it denied
in April of 2014, to provide petitioner more time for parental improvement. However, at a
hearing in July of 2014, following more than one year on rehabilitation and improvement

       2
         The parties do not address the legality of this court-ordered nine-month rehabilitation
period, and we do not address the same in this memorandum decision.
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periods, the circuit court revoked petitioner’s improvement period and set the matter for a
dispositional hearing.

        In September of 2014, the circuit court held a final dispositional hearing. Several
witnesses testified as to petitioner’s level of participation in her second improvement period. The
circuit court heard evidence that petitioner denied any drug use despite failing drug screens for
methamphetamine; that she continued contact with the children’s father; and that her visits with
the children were “chaos.” The circuit court also heard evidence that petitioner attempted to add
a bedroom for one of the children to her trailer by cutting a hole in its side and attaching an
“outbuilding” that also had a hole cut in its side, which resulted in a room lacking heat, air flow,
and windows. Dr. Jason Weaver, a clinical psychologist, testified that petitioner continued to
“deny responsibility, blame[] an overzealous DHHR, and believe[] there is a conspiracy.” He
recommended that petitioner receive a minimum of one-year of intensive therapy. The circuit
court also considered the two older children’s wishes as to petitioner’s parental rights. One child
wished to return with her mother while the other child did not. Based on the evidence presented,
the circuit court found that, despite numerous attempts at parental improvement over more than
two years, petitioner could not substantially correct the conditions at issue herein. Given that the
children had been out of petitioner’s home for twenty-three consecutive months at that time, the
circuit court also found that the children deserved permanency of placement, which would be in
their best interests. By order entered on October 3, 2014, the circuit court terminated petitioner’s
parental rights to all four children. This appeal followed.

       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’s first two assignments of error allege that the circuit court made
erroneous findings as to her drug use, the suitability of her home, and her failure to complete her
second improvement period.3 Citing Rule 19 of the West Virginia Rules of Procedure for Child
Abuse and Neglect Proceedings, petitioner argues that the circuit court should have limited its

       3
           As these assignments of error are related, we address them together.
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review to her participation and progress in those services related to truancy, which she
completed, because truancy was the only ground on which she was adjudicated as an abusing
parent. However, following our review of the record on appeal and briefing herein, we find that
petitioner waived this argument for appellate review.

         This Court has often held that a party must assert a right in the circuit court to preserve
the issue for appellate review and that errors invited by a party will not be reversed on appeal.
See State v. LaRock, 196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996) (stating that “[o]ne of the
most familiar procedural rubrics in the administration of justice is the rule that the failure of a
litigant to assert a right in the trial court likely will result in the imposition of a procedural bar to
an appeal of that issue”); State v. Jessie, 225 W.Va. 21, 27, 689 S.E.2d 21, 27 (2009) (“general
rule is that nonjurisdictional questions not raised at the circuit court level will not be considered
to the first time on appeal”) (citation omitted); Syl. Pt. 4, State v. Mann, 205 W.Va. 303, 518
S.E.2d 60 (1999) (citations omitted) (stating that “[a] judgment will not be reversed for any error
in the record introduced by or invited by the party seeking reversal”); see also W. Va. R. App. P.
10(c)(7) (requiring petitioner’s briefs to contain an argument exhibiting clearly the points of fact
and law presented and “appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were presented to the
lower tribunal”). Petitioner points to no portion of the record on appeal where she objected in
this regard or otherwise presented this issue to the circuit court. To the contrary, it appears from
the record on appeal that petitioner agreed to the terms and conditions of both of her
improvement periods, her “nine-month rehabilitation period[,]” and the safety plan. That is,
petitioner agreed to remain drug and alcohol free, to submit to drug screening, to find suitable
housing, and to have no contact with the children’s father, who had admitted to domestic
violence issues and who petitioner described in her brief to this Court as her “batterer.” Only on
appeal does petitioner now claim that the circuit court committed error in considering her drug
use, home conditions, and continued contact with the children’s father. Without objecting or
otherwise presenting this issue to the circuit court and having agreed to abide by those terms and
conditions, we find the issue waived for appellate review.

        Petitioner also maintains that the circuit court erred in disregarding the testimony of her
expert pharmacist who sought to testify that petitioner’s two positive drug screens were false
positives due to her use of legal cold medicine. We have held that “[t]he admissibility of
testimony by an expert witness is a matter within the sound discretion of the trial court, and the
trial court’s decision will not be reversed unless it is clearly wrong.” Syl. Pt. 6, Helmick v.
Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991). The witness at issue testified that
he was a pharmacist for seventeen years, but that he had no experience conducting or performing
drug tests in a laboratory. He also expressly testified that he was not a toxicologist. For these
reasons, we find no error in the circuit court’s ruling that the witness was not an expert in
toxicology or drug testing, and, therefore, excluding this witness’ evidence as it relates to
toxicology and drug testing. To the extent petitioner argues that this witness’ testimony, as
presented, should have been given more weight by the circuit court, we have explained that “[a]
reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely
situated to make such determinations[,] and this Court is not in a position to, and will not, second
guess such determinations.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531,
538 (1997); see also In re: Emily, 208 W.Va. 325, 339, 540 S.E.2d 542, 556 (2000) (stating that

                                                   4


“in the context of abuse and neglect proceedings, the circuit court is the entity charged with
weighing the credibility of witnesses and rendering findings of fact.”) (citations omitted).
Therefore, we find no error in this regard.

        As to petitioner’s claim that she completed all of the terms of her improvement period,
the record on appeal is clear that petitioner was not fully compliant. In addition to her prior
positive drug screens for methamphetamine, amphetamine, and cannabinoids, evidence indicated
that she maintained contact with the children’s father in violation of a court order and failed to
take responsibility for all of her past conduct. Petitioner also admitted that she was only
“working on obtaining stable housing” at the time of the final dispositional hearing. However,
while the level of compliance with an improvement period is considered at the final disposition,
we recently held that “[i]n making the final disposition in a child abuse and neglect proceeding,
the level of a parent’s compliance with the terms and conditions of an improvement period is just
one factor to be considered. The controlling standard that governs any dispositional decision
remains the best interests of the child.” Syl. Pt. 4, In re: B.H. and S.S., 233 W.Va. 57, 754 S.E.2d
743 (2014). Petitioner does not contest her adjudication for neglect under the first petition. She
argues instead that the circuit court erred in its findings and considerations in making the final
disposition. Therefore, the level of her compliance in the second improvement period is just one
factor for the circuit court to consider. As the children herein were removed from petitioner’s
home for twenty-three months by the time of the final disposition, and petitioner was still only
“working on obtaining stable housing,” the circuit court did not err in finding that the children’s
best interests required permanency and termination. For the foregoing reasons, we find no
reversible error as to petitioner’s first two assignments of error.4

        Petitioner’s third and final assignment of error is that the circuit court erred in terminating
her parental rights to the children, particularly her sixteen-year-old daughter who did not wish
for petitioner’s parental rights to be terminated. West Virginia Code § 49-6-5(a)(6)(c) provides in
relevant part that “the court shall give consideration to the wishes of a child fourteen years of age
or older or otherwise of an age of discretion as determined by the court regarding the permanent
termination of parental rights.” Based upon our review of the record, we find no error in the
circuit court’s compliance with this provision. While the circuit court must consider the child’s
wishes, the statutory mandate does not bind the circuit court to any one outcome.

        Indeed, West Virginia Code § 49-6-5(a)(6) requires circuit courts to terminate the
parental rights of an abusing parent “[u]pon a finding that there is no reasonable likelihood that
the conditions of neglect or abuse can be substantially corrected in the near future and, when
necessary for the welfare of the child.” Further, West Virginia Code § 49-6-5(b)(3) provides that
“no reasonable likelihood that conditions of neglect or abuse can be substantially corrected”
exists when a respondent parent fails to respond or follow through with a reasonable family case

       4
         Although not listed as a separate assignment of error, petitioner also argues that the
circuit court erred because no case plan was filed for over one year in this matter. However, it is
clear from the record that petitioner raised this issue in a motion for a second improvement
period due to this procedural error, and, over objection, the circuit court granted petitioner’s
motion. Therefore, because the circuit court granted petitioner’s motion, we find no prejudice to
petitioner on this issue. Any error in this regard is harmless.
                                                  5


plan or other rehabilitative efforts. As discussed above, the circuit court found that petitioner
failed to complete the goals she agreed to as part of her improvement period for rehabilitation
and reunification with her children. Petitioner admitted that she did not have suitable housing at
the time of the final disposition, noting that she was “working on” obtaining the same.
Additionally, the circuit court found that the children deserved permanency after they had been
removed from petitioner’s home for almost two years. Following a thorough review of the many
hearing transcripts, orders, and arguments by the parties, we find no error in the circuit court’s
findings given the evidence presented below. Based on these findings, we conclude that the
circuit court did not err in terminating petitioner’s parental rights to these children.

        Therefore, we find no error in the decision of the circuit court, and its October 3, 2014,
order is hereby affirmed.


                                                                                        Affirmed.


ISSUED: August 31, 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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