                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: C.W.                                                                        FILED
                                                                                June 15, 2015
                                                                             RORY L. PERRY II, CLERK
No. 14-1001 (Webster County 14-JA-3)                                       SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Mother, by counsel Daniel R. Grindo, appeals the Circuit Court of Webster
County’s September 2, 2014, order terminating her parental rights to C.W. The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Christopher S. Dodrill, filed
its response in support of the circuit court’s order. The guardian ad litem (“guardian”), Jamella L.
Lockwood, filed a response on behalf of the child supporting the circuit court’s order. On appeal,
petitioner alleges that the circuit court erred in terminating her parental rights upon the finding
that she had not corrected the conditions of abuse and neglect from her prior termination of
parental rights and in denying her visitation with the child throughout the proceedings below.1

        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 January of 2014, the DHHR filed an abuse and neglect petition that alleged petitioner
previously had her parental rights to older children involuntarily terminated. The prior abuse and
neglect petition was based on allegations that petitioner operated a methamphetamine laboratory
in the home and abused controlled substances while the children were in her custody. In the prior
proceeding, petitioner was required to establish a fit and suitable home, comply with counseling
requirements, and obtain employment. However, petitioner did not comply with these
requirements and the circuit court ultimately terminated her parental rights to two older children.
As to the subsequently born C.W., the DHHR alleged that petitioner was addicted to controlled
substances and unable to provide the child with a fit and suitable home. The DHHR further
alleged that petitioner had not remedied the conditions in the home that required the prior
termination of parental rights.



       1
         We 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.
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        The circuit court held a preliminary hearing and denied petitioner’s request for visitation
with the child pending a psychological evaluation. In July of 2014, the circuit court held an
adjudicatory hearing, during which it took judicial notice of the prior termination of petitioner’s
parental rights to older children. The circuit court then heard testimony from several witnesses.
Ultimately, the circuit court found that petitioner had not corrected the conditions from the prior
abuse and neglect proceeding and that her psychological evaluation showed a poor prognosis for
correcting those conditions. As such, the circuit court denied petitioner visitation with the child
and adjudicated her as an abusing parent. Ultimately, following a dispositional hearing in August
of 2014, the circuit court terminated petitioner’s parental rights to C.W. Petitioner appeals from
the dispositional order.

       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 circuit court terminating petitioner’s parental rights or in denying her visitation
with the child during the pendency of the proceedings below.

       In discussing prior terminations of parental rights, we have previously held that

       [w]here there has been a prior involuntary termination of parental rights to a
       sibling, the issue of whether the parent has remedied the problems which led to
       the prior involuntary termination sufficient to parent a subsequently-born child
       must, at minimum, be reviewed by a court, and such review should be initiated on
       a petition pursuant to the provisions governing the procedure in cases of child
       neglect or abuse set forth in West Virginia Code §§ 49–6–1 to –12 (1998).
       Although the requirement that such a petition be filed does not mandate
       termination in all circumstances, the legislature has reduced the minimum
       threshold of evidence necessary for termination where one of the factors outlined
       in West Virginia Code § 49–6–5b(a) (1998) is present.

In re Kyiah P., 213 W.Va. 424, 427, 582 S.E.2d 871, 874 (2003) (quoting Syl. Pt. 2, In the
Matter of George Glen B., 205 W.Va. 435, 518 S.E.2d 863 (1999)). In support of her appeal,

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petitioner argues that she remedied her substance abuse issues, as evidenced by numerous
negative drug screens during this matter. However, while commendable, the Court does not
agree that this is sufficient to establish that petitioner remedied the conditions of abuse and
neglect that necessitated the prior termination of parental rights. It is clear from the record that
several other conditions contributed to the abuse and neglect in the prior proceeding and that
they persisted throughout the current matter.

        Specifically, the circuit court found that petitioner not only failed to follow through with
recommended counseling and substance abuse treatment, she was also “less than candid with the
[circuit c]ourt about missing appointments” with her therapist. Moreover, the record is clear that
the circuit court’s finding that petitioner failed to establish a fit and suitable home was supported
by substantial evidence. This includes the fact that petitioner resided with her grandmother, an
individual that the DHHR stated was not “a fit and suitable person for placement of the infant”
because she tested positive for multiple controlled substances during a drug screen shortly before
the instant proceedings. While petitioner argues that her inability to obtain a suitable home was
based primarily on her financial limitations, the Court does not agree. The record is clear that the
DHHR offered petitioner services to assist in obtaining housing, including an offer to pay the
first month’s rent and security deposits on an appropriate apartment. Moreover, contrary to
petitioner’s argument that such services would ultimately be ineffective due to her lack of
employment, the record further shows that the DHHR encouraged petitioner to relocate within
West Virginia to an area with more employment opportunities where the DHHR could assist
petitioner in finding a job. However, petitioner continually denied these services. For these
reasons, it is clear that petitioner failed to correct the conditions that led to the prior termination
of her parental rights to two older children, and the circuit court did not err in terminating her
parental rights upon this evidence.

        As to petitioner’s argument that the circuit court erred in denying her visitation with the
child during the pendency of the proceedings below, we find no error in this regard. To be clear,
petitioner does not allege the circuit court erred in denying her post-termination visitation, but
instead argues that the circuit court erred in denying her visitation with the child during the
proceedings and then later relying on the lack of a bond in terminating her parental rights.
However, the Court notes that the record does not support this argument, as the circuit court
clearly acknowledged at disposition that it created the lack of a bond by denying visitation and
did not rely upon the same in terminating petitioner’s parental rights to the child. As such, we
find no error in the circuit court denying petitioner visitation with the child prior to termination
of her parental rights because visitation was not in the child’s best interests.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
September 2, 2014, order is hereby affirmed.


                                                                                            Affirmed.




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ISSUED: June 15, 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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