                          SUPREME COURT OF APPEALS
                                                                                FILED
In re: T.P.                                                                November 22, 2017
                                                                             EDYTHE NASH GAISER, CLERK
No. 17-0574 (Raleigh County 16-JA-125)                                       SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

                              MEMORANDUM DECISION
        Petitioner Mother N.F., by counsel Dennie S. Morgan, appeals the Circuit Court of
Raleigh County’s May 26, 2017, order terminating her parental rights to T.P.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. The guardian ad litem (“guardian”), Timothy P. Lupardus,
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 denying her motion for an extension of her 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 September of 2016, the DHHR filed an amended abuse and neglect petition against
petitioner due to her continued drug use during her pregnancy and when she gave birth to T.P. At
the time the petition was filed, petitioner was still involved in abuse and neglect proceedings
concerning an older child based on allegations of substance abuse and operating a
methamphetamine laboratory in her home, among other allegations.2 After giving birth to T.P.,
petitioner was observed by hospital staff trying to hide pain medication under her drinking cup.
In November of 2016, the circuit court held a hearing at which petitioner stipulated to “the fact
that she used controlled substances during the pregnancy to the detriment of [T.P.]’s health.”
During this hearing, petitioner voluntarily relinquished her parental rights to the older child.
With regard to T.P., petitioner was adjudicated as an abusing parent and was granted a post­
adjudicatory improvement period.

       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 voluntarily relinquished her parental rights to the older child in November of
2016. Petitioner did not appeal the order accepting her voluntary relinquishment of that child and
raises no argument concerning that child in her appellate brief herein. As such, that child is not
the subject of the current appeal.
                                                1

        In May of 2017, the circuit court held a dispositional hearing. The DHHR presented
testimony that petitioner missed five drug screens in May of 2017, had several positive screens
for multiple prohibited substances in April of 2017, and had positive screens and missed screens
for every month, dating back to September of 2016. The CPS worker testified that petitioner’s
case plan goals were to successfully complete the outpatient Day Report Center program; find
appropriate, safe, and stable housing; and to obtain employment or education services. The CPS
worker further testified that petitioner failed to complete the Day Report Center program and
failed to locate stable housing or employment/education services. The CPS worker also testified
that she did not believe that petitioner had succeeded in completing any part of her case plan.
The DHHR also presented testimony that petitioner missed two visits with the child and that she
missed at least one parenting class. Petitioner testified that she was unable to find employment
due to her homelessness and that she continued to use drugs. Petitioner moved for an extension
of her post-adjudicatory improvement period and argued that she tried to comply with the terms
and conditions of the improvement period. The circuit court denied her motion and terminated
her parental rights in its May 26, 2017, order.3 It is from the dispositional order 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). Upon our review, the Court finds
no error in the proceedings below.

        First, petitioner argues that the circuit court erred in denying her motion for an extension
of her post-adjudicatory improvement period. In support of her argument, petitioner asserts that
she substantially complied with her post-adjudicatory improvement period. She further argues
that an extension of her improvement period would not substantially impair the ability of the
DHHR to permanently place the child and would be in the best interest of the child. We disagree.

       3
        In addition to petitioner’s parental rights being terminated, the father of the child
voluntarily relinquished his parental rights on May 23, 2017. According to the guardian and the
DHHR, the child is placed in a foster home with a permanency plan of adoption in that home.
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Pursuant to West Virginia Code § 49-4-610(6), a circuit court may extend an improvement
period when

       the court finds that the [parent] has substantially complied with the terms of the
       improvement period; that the continuation of the improvement period will not
       substantially impair the ability of the department to permanently place the child;
       and that the extension is otherwise consistent with the best interest of the child.

        Here, the DHHR established that, throughout her improvement period, petitioner
continued to abuse drugs. She also missed multiple drug screens and had positive screens every
month from September of 2016 until the dispositional hearing. Further, she failed to satisfy
conditions of her case plan by failing to complete the Day Report Center program, or to find
stable housing and employment/education services. Therefore, petitioner did not substantially
comply with her post-adjudicatory improvement period. Due to her failure to comply with her
case plan and her continued use of drugs, an extension of petitioner’s post-adjudicatory
improvement period would not have been consistent with the best interest of the child. Based on
this evidence, the circuit court did not err in denying petitioner’s motion for an extension of her
post-adjudicatory improvement period.

        Next, petitioner argues that the circuit court erred in terminating her parental rights.
Petitioner asserts that because she substantially complied with her post-adjudicatory
improvement period, she should have been granted an extension to her post-adjudicatory
improvement period, and her parental rights should not have been terminated. Petitioner argues
that she would have “substantially corrected all of her issues if she had been able to attend in­
patient drug treatment[.]” As discussed above, petitioner failed to substantially comply with her
post-adjudicatory improvement period. West Virginia Code § 49-4-604(b)(6) provides that
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 children’s welfare. West Virginia Code § 49-4-604(c)(3)
provides that no reasonable likelihood that the conditions of abuse or neglect can be substantially
corrected exists when “[t]he abusing parent . . . ha[s] not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts[.]”

        Here, it is clear that there was no reasonable likelihood that petitioner could have
substantially corrected the conditions of abuse or neglect in the near future. As discussed above,
petitioner missed multiple drug screens from September of 2016 until the dispositional hearing in
May of 2017 and tested positive for multiple prohibited substances on several screens. Further,
she failed to comply with her case plan and did not secure housing or employment/education
services. Moreover, it is clear that termination was necessary for the child’s welfare, given that
petitioner failed to correct the conditions of abuse and neglect. For these reasons, we find no
error in the circuit court’s termination of petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 26, 2017, dispositional order is hereby affirmed.
                                                                                    Affirmed.



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ISSUED: November 22, 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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