                               STATE OF WEST VIRGINIA
                             SUPREME COURT OF APPEALS

                                                                                        FILED
In re E.M.                                                                           June 25, 2020
                                                                                   EDYTHE NASH GAISER, CLERK
                                                                                   SUPREME COURT OF APPEALS
No. 19-0824 (Greenbrier County 18-JA-16)                                               OF WEST VIRGINIA




                                MEMORANDUM DECISION



        Petitioner Mother S.T., by counsel Martha J. Fleshman, appeals the Circuit Court of
Greenbrier County’s August 8, 2019, order terminating her parental rights to E.M. 1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Katherine A.
Campbell, filed a response in support of the circuit court’s order and a supplemental appendix. The
guardian ad litem, Richard M. Gunnoe, filed a response on behalf of the child in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating her
parental rights by (1) failing to provide additional time to obtain appropriate housing, (2) failing
to provide additional time to cease smoking, and (3) unnecessarily delaying reunification by
suspending visitation with the child.

       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 2018, the DHHR filed an abuse and neglect petition against petitioner and E.M.’s
father alleging that E.M. was born drug-exposed. 2 The petition alleged that petitioner tested
positive for Subutex, but she was unable to provide an explanation for the positive screen and
denied using the drug. The petition further alleged that petitioner had previously had her rights to
two other children involuntarily terminated. Finally, the petition alleged that petitioner lacked


       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
           The petition alleged E.M.’s cord blood tested positive for opiates and morphine.
                                                  1
stable and suitable housing. Thereafter, the circuit court ratified the child’s removal, and petitioner
waived her preliminary hearing.

        In May of 2018, the circuit court held an adjudicatory hearing wherein petitioner stipulated
to “her illicit use of morphine, which resulted in the child having Neonatal Abstinence Syndrome.”
The circuit court adjudicated petitioner of abuse and neglect and found that the DHHR was not
required to make reasonable efforts to reunify the family because she had a prior involuntary
termination of parental rights. Petitioner then requested a post-adjudicatory improvement period,
which the DHHR opposed. After testimony, the circuit court granted petitioner a three-month post-
adjudicatory improvement period.

        In December of 2018, the circuit court held a dispositional hearing where petitioner moved
for a post-dispositional improvement period. The circuit court found that petitioner was “likely to
fully participate” in the improvement period and that it was in the best interest of the child to allow
her to participate. Accordingly, the circuit court granted petitioner a three-month post-dispositional
improvement period with the same terms and conditions of her post-adjudicatory improvement
period.

        At a hearing in April of 2019, the circuit court found that “there was a substantial
likelihood” petitioner would comply with an extension of her post-dispositional improvement
period and extended her improvement period for one month, deferring a ruling on disposition. The
child remained in the custody of the DHHR. In May of 2019, the circuit court held a review hearing
to discuss petitioner’s progress. At the hearing, the circuit court was made aware that E.M. had a
respiratory condition prohibiting individuals from smoking around her. As a result, petitioner was
required to cease smoking as a condition of her improvement period. Additionally, the DHHR
provided petitioner a nicotine patch treatment under the guidance of a physician.

        In July of 2019, the circuit court held a final dispositional hearing. At the hearing, petitioner
moved for an extension of her post-dispositional improvement period. The DHHR and guardian
ad litem opposed the requested extension and moved for petitioner’s parental rights to be
terminated. The DHHR alleged that petitioner was noncompliant with several terms of her
improvement period. Notably, the DHHR alleged that petitioner had multiple positive drug screens
during her improvement periods and was unable to secure housing. After the testimony of several
witnesses, the circuit court found that petitioner had “failed to progress in her improvement
periods,” had “not secured stable housing,” “provided positive drug screens,” and “failed to
comply with [a] nicotine patch treatment” to help her quit smoking, which exacerbated the child’s
respiratory disease. Additionally, the circuit court found that E.M. had been in the DHHR’s
custody for nearly her entire life and that it was not in her best interest to return to petitioner.
Finally, the circuit court found that there was no reasonable likelihood petitioner could
substantially correct the conditions of abuse and neglect, given that she failed to follow through
with the family case plan and associated services. Accordingly, the circuit court terminated
petitioner’s parental rights to the child. 3 It is from the August 8, 2019, dispositional order that
petitioner appeals.


        3
        E.M.’s father voluntarily relinquished his parental rights. The permanency plan is for E.M.
to be adopted by her current foster family.
                                                   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).

        On appeal, petitioner alleges three assignments of error. All three assignments of error
effectively argue that petitioner should have received more time in her improvement period to
correct the conditions of abuse and neglect that led to the petition. 4 However, the record reflects
that petitioner received both a post-adjudicatory improvement period and post-dispositional
improvement period, including an extension of each improvement period. In total, petitioner
participated in multiple improvement periods from May of 2018 until the termination of her
parental rights in July of 2019. Petitioner argues that the DHHR was not required to make efforts
to terminate her parental rights when it did, given that West Virginia Code § 49-4-605(a)(1)
requires the DHHR “to seek a ruling in any pending proceeding to terminate parental rights” when

       a child has been in foster care for 15 of the most recent 22 months as determined
       by the earlier of the date of the first judicial finding that the child is subjected to
       abuse or neglect or the date which is 60 days after the child is removed from the
       home

According to petitioner, this did not apply to the child herein. While it is true that the DHHR was
not required to seek termination under this statute, this Court has nonetheless previously held that

               “[a]lthough it is sometimes a difficult task, the trial court must accept the
       fact that the statutory limits on improvement periods (as well as our case law
       limiting the right to improvement periods) dictate that there comes a time for


       4
         In her second assignment of error, petitioner asserts that the circuit court erred in
terminating her parental rights upon evidence that she failed to cease smoking because smoking
was not included as an allegation in the abuse and neglect petition. While petitioner is correct that
smoking was not listed in the petition, the requirement to cease smoking was made a condition of
petitioner’s post-dispositional improvement period. Given that petitioner agreed to comply with
the terms and conditions of the improvement period, she has waived her right to challenge it on
appeal.
                                                  3
       decision, because a child deserves resolution and permanency in his or her life, and
       because part of that permanency must include at minimum a right to rely on his or
       her caretakers to be there to provide the basic nurturance of life.”

State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 260, 470 S.E.2d 205, 214 (1996) (emphasis
added). Accordingly, it is clear that, absent either a statutory requirement for the DHHR to seek
termination of petitioner’s parental rights or a statutory prohibition upon further time for an
improvement period under West Virginia Code § 49-4-610(9), 5 our prior holdings governing the
circuit court’s discretion in granting improvement periods or extensions permitted termination of
petitioner’s parental rights under the facts of this case.

        Despite the extensive time involved in the case, petitioner argues that but for a premature
termination of her improvement period she would have secured necessary housing and that she
otherwise largely complied with the terms and conditions of her improvement period. While
petitioner is correct that the record shows that she was, at times, compliant with the terms of her
improvement period and that the circuit court permitted the improvement period to continue after
multiple review hearings, she ignores the fact that her compliance was sporadic. Petitioner tested
positive for opiates on multiple drug screens—despite denying that she abused drugs—and had
difficulties maintaining stable and suitable housing throughout the proceedings. As such, the
record is clear that despite several continuances of her improvement period, petitioner failed to
maintain compliance with her improvement period throughout the proceedings. Ultimately,
petitioner’s assertion that she substantially complied with the improvement period ignores the fact
that her lack of suitable housing, failure to stay drug free, and lack of candor with the circuit court
were not remedied sufficiently to justify the return of the child to her care.

        Finally, based on the evidence of petitioner’s sporadic compliance and her failure to secure
stable housing, remain drug free, and cease smoking, the circuit court found that petitioner failed
to follow through with the DHHR’s rehabilitative services. Importantly, this constitutes a situation
in which there is no reasonable likelihood the conditions of abuse and neglect can be substantially
corrected in the near future under West Virginia Code § 49-4-604(c)(3) (2019). 6 On appeal,
petitioner asserts that the circuit court’s decision to terminate was improper when she was making
substantial progress toward reunification. We disagree and find that the circuit court’s order is
specific and enumerates several areas where petitioner failed to make progress as the basis for the
termination of her parental rights. The circuit court’s findings are based on substantial evidence
that petitioner was never fully compliant in her improvement period and failed to avail herself of
many of the services offered. Moreover, the circuit court found that termination of petitioner’s
parental rights was in the child’s best interests. According to West Virginia Code § 49-4-604(b)(6)
(2019), circuit courts may terminate parental rights upon these findings. Further, we have long
held that


       5
         Pursuant to West Virginia Code § 49-4-610(9), “[n]otwithstanding any other provision of
this section, no combination of any improvement periods or extensions thereto may cause a child
to be in foster care more than fifteen months of the most recent twenty-two months.”
       6
        Although the Legislature amended West Virginia Code § 49-4-604 effective June 5,
2020, including renumbering the provisions, the amendments do not impact this case.
                                                  4
                “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [West Virginia
       Code § 49-4-604 (2019)] . . . may be employed without the use of intervening less
       restrictive alternatives when it is found that there is no reasonable likelihood under
       [West Virginia Code § 49-4-604(c) (2019)] . . . 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 shows that the circuit
court had ample evidence upon which to base these findings, and we decline to disturb them on
appeal.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 8, 2019, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: June 25, 2020

CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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