                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS
                                                                                     FILED
In re J.B. and M.C.                                                             November 21, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0652 (Ritchie County 16-JA-31 and 16-JA-32)                               SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Mother L.B., by counsel Ira A. Richardson, appeals the Circuit Court of
Ritchie County’s June 15, 2018, order terminating her parental and custodial rights to J.B. and
M.C.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
S.L. Evans, filed a response in support of the circuit court’s order and a supplemental appendix.
The guardian ad litem for J.B. (“guardian for J.B.”), Dreama D. Sinkkanen, filed a response on
behalf of J.B. in support of the circuit court’s order. The guardian ad litem for M.C. (“guardian
for M.C.”), Michael D. Farnsworth Jr., filed a response on behalf of M.C. in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred by not “reopening
the dispositional hearing,” terminating her parental and custodial rights rather than imposing a
less-restrictive dispositional alternative, and denying post-termination visitation with 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 September of 2016, the DHHR filed a petition alleging that petitioner was acting
erratically while in public and was deficient in caring for her youngest child. The DHHR alleged
that a Child Protective Service worker requested that petitioner take a drug screen and, despite
petitioner’s insistence that she would pass the screen, she tested positive for amphetamine and
methamphetamine. Petitioner later admitted that she used methamphetamine after receiving it as
a birthday present in August of 2016. Additionally, petitioner admitted to abusing marijuana and
prescription drugs. Thereafter, the circuit court held an adjudicatory hearing in October of 2016,
                                                            
              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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at which petitioner stipulated to the allegation that substance abuse negatively affected her ability
to parent. The circuit court adjudicated petitioner as an abusing parent and granted her a post-
adjudicatory improvement period. Petitioner agreed to participate in parenting and adult life
skills classes, drug screening, supervised visitations, and a psychological evaluation.

        In March of 2018, the circuit court held a dispositional hearing. According to the
evidence, in October of 2016, petitioner became subject to conditions of bond associated with a
felony charge of fleeing from an officer in a vehicle. However, petitioner’s bond was revoked in
December of 2016 after she tested positive for use of controlled substances and continued
associating with a convicted felon. Petitioner was later released on bond, but that bond was
revoked in February of 2017 after she was dishonest about substance use and tested positive for
benzodiazepines. Petitioner participated in inpatient substance abuse treatment from June of
2017 to July of 2017. However, a treatment manager at that facility testified that petitioner made
no progress in the program, was not receptive to making changes in her life, and was ultimately
discharged for non-compliance with the rules of the program. Petitioner again participated in an
inpatient substance abuse treatment program from August of 2017 to October of 2017. The
treatment coordinator from that facility testified that petitioner was “all talk, no action,” showed
no growth during the program, and was involuntarily discharged from the program for being
disrespectful to staff and other residents. The treatment coordinator further opined that petitioner
required long-term inpatient substance abuse treatment of at least nine to twelve months in
duration.

         Three service providers testified regarding petitioner’s limited progress through parenting
classes, adult life skills classes, and supervised visitations. The service provider testified that
petitioner did not complete the curriculum of the parenting or adult life skills classes, and that
while petitioner would participate, she made no change to her behavior. The provider further
noted that petitioner expressed unreasonable expectations for the children and recalled one
example wherein petitioner locked the older child in a closest for an entire weekend in order to
teach her how to be alone. The provider opined that petitioner’s relationship with the older child
was more like an older sister than a parent and that petitioner acted more like a babysitter than a
parent to the younger child. The provider indicated that petitioner allowed the older child to care
for the younger and took a “backseat role.” A second provider testified that she provided services
to petitioner from August of 2017 to October of 2017 and that petitioner did not complete those
services. This provider testified that petitioner expressed a desire to obtain social security
benefits rather than work to support her children. The provider noted that petitioner had no
objective indication of disability. Finally, petitioner’s visitation supervisor testified that the
children did not respond to petitioner during visitations, as they were neither excited to see her
nor sad to leave her. The supervisor believed that the visitations were not positive for the
children.

       Petitioner testified and admitted that she did not complete the services required in order
to regain custody of her children. Petitioner explained that she was currently incarcerated, but
would become parole eligible in April of 2018. Petitioner requested that the great-aunt of the
children be appointed as guardian of the children until petitioner could complete services. The
great-aunt testified that petitioner had a bond with the children; however, she also expressed that
she had not seen the children since July of 2016. Similarly, the children’s maternal grandmother

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testified regarding petitioner’s bond with the children, but could not remember when she herself
last saw the children. At the conclusion of the hearing, the circuit court instructed the parties to
submit proposed findings of fact and conclusions of law.

        In April of 2018, petitioner filed a “Motion to Reopen Dispositional Hearing and Present
Evidence.” In this motion, petitioner alleged that she had been granted parole and would be
released from incarceration in early May of 2018. Petitioner argued that her release from
incarceration was a substantial change in circumstances and justified further hearings. In June of
2018, the circuit court held a hearing on petitioner’s motion to reopen the dispositional hearing.
Ultimately, the circuit court denied petitioner’s motion to reopen as her release from
incarceration was not “tantamount to her ability to successfully complete an improvement period
in consideration of her past performance.” Further, the circuit court reasoned that the children
had been in foster care for fifteen of the last twenty-two months and that petitioner needed long-
term, inpatient substance abuse treatment to remedy her substance abuse issue. Ultimately, the
circuit court found that petitioner was habitually addicted to drugs to the extent that her parenting
skills were seriously impaired and that she had not responded to or followed through with the
recommended and appropriate treatment to improve parental functioning. The circuit court
further found that it was necessary for the welfare of the children to terminate petitioner’s
parental and custodial rights. The circuit court also denied petitioner’s motion for post-
termination visitation. Accordingly, the circuit court terminated petitioner’s parental and
custodial rights in its June 15, 2018, order. Petitioner now appeals that order.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). Upon our review, this Court
finds no error in the proceedings below.

                                                            
              2
        The children’s respective fathers’ parental rights were also terminated below. According
to the parties, the permanency plan for the children is adoption in their current relative foster
placement.



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        On appeal, petitioner argues that the circuit court erred in denying her motion to “reopen”
the dispositional hearing and refusing to hear additional evidence regarding her release from
incarceration. We disagree. Here, the circuit court granted petitioner a hearing on her motion to
reopen the dispositional hearing and fully considered petitioner’s release from incarceration and
the impact of such a fact in its dispositional decision. The circuit court’s decision to terminate
petitioner’s parental and custodial rights was not based on petitioner’s inability to participate in
an improvement period due to her incarceration. Rather, the decision was based on petitioner’s
previous conduct during the proceedings. The circuit court reasoned that petitioner’s limited
participation in her improvement period demonstrated an inability to comply with the terms of an
improvement period or remedy the conditions of abuse and neglect. Further, while petitioner
asserts on appeal that she has not used controlled substances since February of 2017, this
evidence was available to petitioner and presented at the final dispositional hearing, as was
evidence that petitioner was not inclined to change her lifestyle, despite parenting and adult life
skills services, and that she did abuse controlled substances during her improvement period.
Accordingly, we find that the circuit court did not err in denying petitioner’s motion to reopen
the dispositional hearing.

        Petitioner also argues that the circuit court erred in terminating her parental rights rather
than imposing a less-restrictive dispositional alternative. We disagree. West Virginia Code § 49-
4-604(b)(6) provides that a circuit court may 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 welfare of the children. West
Virginia Code § 49-4-604(c)(1) provides that there is no reasonable likelihood that the conditions
of abuse and neglect can be substantially corrected when “the abusing adult . . . [has] habitually
abused or [is] addicted to alcohol, controlled substance or drugs, to the extent that proper
parenting skills have been seriously impaired and the [parent] . . . [has] not responded to or
followed through the recommended and appropriate treatment.” Also, we have also 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). Here, the record supports the
circuit court’s findings that there was no reasonable likelihood that petitioner could substantially
correct the conditions of abuse and neglect and that termination was necessary for the welfare of
the children. Despite the DHHR’s intervention and services, petitioner continued to abuse drugs
during her improvement period, failed to make necessary parenting changes, and was
incarcerated as a result of her continuing drug abuse. Further, while petitioner participated in two
inpatient substance abuse treatment programs, both of her treatment providers agreed that she
made no progress during said treatment. Finally, petitioner continued to take a “backseat” during
visitations with the children and allowed her eight-year-old daughter to care for her four-year-old

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son. The circuit court’s findings that there was no reasonable likelihood that the conditions of
abuse and neglect could be substantially corrected and that termination was necessary for the
children’s welfare were not clearly erroneous. Therefore, termination of petitioner’s parental and
custodial rights, rather than some less-restrictive dispositional alternative, was appropriate.
Accordingly, we find petitioner is entitled to no relief.

         Finally, petitioner argues that the circuit court erred in denying her post-termination
visitation with the children because of uncontradicted evidence regarding the bond between her
and the children. We disagree.

                “When parental rights are terminated due to neglect or abuse, the circuit
       court may nevertheless in appropriate cases consider whether continued visitation
       or other contact with the abusing parent is in the best interest of the child. Among
       other things, the circuit court should consider whether a close emotional bond has
       been established between parent and child and the child’s wishes, if he or she is of
       appropriate maturity to make such request. The evidence must indicate that such
       visitation or continued contact would not be detrimental to the child’s well being
       and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
       446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002). On appeal, petitioner cites
generally to the circuit court’s dispositional order to assert that a close emotional bond exists.
However, the record includes testimony from services providers that “the visits were not positive
for the children and that the children were neither excited to see [petitioner] or sad to leave her
during these visits.” The children were further described as “very non-responsive” during the
visits. Clearly, if the visits were not positive for the children, it is not in their best interests to
visit with petitioner. Therefore, we find no error in the circuit court’s denial of post-termination
visitation.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 15, 2018, order is hereby affirmed.

                                                                                            Affirmed.

ISSUED: November 21, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment




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