                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


                                                                                  FILED
In re: I.W.
                                                                               June 16, 2017
No. 17-0166 (Raleigh County 15-JA-166-B)                                       RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Mother C.W., by counsel P. Michael Magann, appeals the Circuit Court of
Raleigh County’s January 20, 2017, order terminating her parental rights to I.W.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 (“guardian”), David A. Kirkpatrick, filed a response on behalf of the child in support of the
circuit court’s order and a supplemental appendix. On appeal, petitioner argues that the circuit
court erred in denying her motion for an improvement period at disposition 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 October of 2015, the DHHR filed an abuse and neglect petition against petitioner.
According to the petition, the DHHR received a referral that the child would often discuss
petitioner’s abuse of sleeping medicine. The petition further alleged that petitioner failed to
ensure the child’s proper hygiene and that the child often fell asleep at school. The child
indicated that he often did not eat dinner and that petitioner would give him a sleeping pill at
night. The DHHR also alleged that petitioner was observed slumped over the steering wheel of
her car. In addition, the petition included allegations that petitioner was arrested on criminal
charges of delivery of controlled substances, possession of controlled substances, and trafficking.
Further, petitioner admitted to a Child Protective Services (“CPS”) worker that she abused
prescription medications, including Oxycodone and Xanax.



       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).


                                                1

        In December of 2015, the circuit court held an adjudicatory hearing, during which
petitioner stipulated to abusing the child as a result of her substance abuse. The circuit court
granted petitioner a post-adjudicatory improvement period, which required that she (1) not be
arrested or charged with a crime; (2) submit to random drug screens; (3) submit to inpatient
substance abuse treatment; (4) participate in substance abuse counseling; (5) participate in grief
counseling; and (6) participate in parenting and adult life skills, among other requirements.

        In May of 2016, petitioner checked into a detoxification program at Southern Highlands
Community Mental Health Center. Four days later, petitioner checked herself out of the program
against medical advice. In July of 2016, the circuit court held a review hearing during which it
found that petitioner was not progressing in her improvement period. However, the circuit court
granted petitioner an extension of her improvement period upon her agreement to enter a
substance abuse treatment program. Petitioner entered the Mother’s Program but was later
discharged for noncompliance with the program’s rules and regulations. The DHHR then filed a
motion to terminate petitioner’s parental rights.

        In December of 2016, the circuit court held a dispositional hearing, during which
petitioner moved for an improvement period as disposition. The DHHR presented multiple
witnesses in support of its motion to terminate petitioner’s parental rights. According to these
witnesses, petitioner failed to comply with several aspects of her post-adjudicatory improvement
period. Specifically, the circuit court heard evidence that petitioner stopped submitting to drug
screens and attending counseling. In fact, one provider testified that petitioner missed roughly
ninety percent of her scheduled drug screens, despite the fact that the testing location was within
walking distance of petitioner’s residence. The circuit court also heard evidence about
petitioner’s two failed attempts at substance abuse detoxification and/or rehabilitation.
Testimony established that petitioner’s only compliance leading up to the dispositional hearing
was sporadic participation with parenting and adult life skills education and some visitation with
the child. However, between July of 2016 and October of 2016, petitioner did not attend any
visits with the child. Further, one provider testified that petitioner’s missed visits had a
detrimental effect on the child. Petitioner would tell the child she was going to attend a visit and
then fail to show up, resulting in the child being “upset for days at a time . . . .” According to
testimony, the child’s disappointment would manifest itself physically, with the child reporting
headaches and sickness as a result of the missed visits. Ultimately, the circuit court denied
petitioner’s motion for an additional improvement period and terminated her parental rights to
the child.2 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

       2
        Petitioner’s parental rights to the child were terminated below. The child’s father is
deceased. According to the DHHR, the child is placed in the home of his paternal grandparents
with a goal of adoption therein.
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       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, the Court finds no error in the circuit court’s denial of petitioner’s motion for an
improvement period at disposition. Pursuant to West Virginia Code § 49-4-610(3)(D), a circuit
court may grant a parent an improvement period at disposition if, “the [parent] demonstrates that
since the initial improvement period, the [parent] has experienced a substantial change in
circumstances. Further, the [parent] shall demonstrate that due to that change in circumstances,
the [parent] is likely to fully participate in the improvement period . . . .” Here, petitioner was
previously granted a post-adjudicatory improvement period. However, the record is clear that
petitioner could not establish a substantial change in circumstances since her initial improvement
period or that she was likely to fully participate in a new improvement period.

        At disposition, the circuit court was presented with ample evidence of petitioner’s
noncompliance with the terms and conditions of her post-adjudicatory improvement period. This
evidence included her failure to submit to drug screening and counseling, her failure to complete
inpatient substance abuse treatment, and her inconsistent visitation with the child. While
petitioner argues on appeal that she made sufficient progress and improvement to warrant an
additional improvement period, the Court finds nothing in the record to support this assertion. On
the contrary, the evidence overwhelmingly supports the circuit court’s determination that
petitioner established “a failure to comply with the family case plan.” Simply put, the issues of
abuse and neglect in the home continued unabated throughout the proceedings such that
petitioner could not establish a substantial change in circumstances to warrant an additional
improvement period. Moreover, her failure to comply with the terms and conditions of her post­
adjudicatory improvement period also showed that she was unlikely to fully comply with an
additional improvement period. For these reasons, we find no error in the circuit court’s denial of
petitioner’s motion for an improvement period at disposition.

        Finally, we find no error in the circuit court’s termination of petitioner’s parental rights.
On appeal, petitioner argues that there was insufficient evidence upon which to terminate her
parental rights, but we find this argument to be without merit. As noted above, the circuit court
specifically found that petitioner failed to comply with the terms and conditions of her family
case plan. 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



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       [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 .
       ...

Based upon the evidence outlined above, it is clear that there was no reasonable likelihood
petitioner could substantially correct the conditions of abuse and neglect. The circuit court
further found that termination of petitioner’s parental rights was necessary for the child’s welfare
because the child required permanency in his placement. Pursuant to West Virginia Code § 49-4­
604(b)(6), circuit courts are directed to terminate a parent’s parental rights upon such findings.
Moreover, we have previously held that

               “[t]ermination 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). 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
January 20, 2017, 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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