                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS

                                                                                    FILED
In re T.M. and K.M.
                                                                                March 12, 2018
                                                                                EDYTHE NASH GAISER, CLERK
No. 17-0873 (Ohio County 17-JA-14 and 15)                                       SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Mother E.M., by counsel Michael Baum, appeals the Circuit Court of Ohio
County’s July 24, 2017, order terminating her parental rights to T.M. and K.M.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Neizgoda,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”),
Joseph J. Moses, filed a response on behalf of the children in support of the circuit court’s order.
On appeal, petitioner argues that the circuit court erred in terminating her parental rights to T.M.
and K.M. on the sole basis of her incarceration.

        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 February of 2017, the DHHR filed a petition alleging that T.M. and K.M.’s father
overdosed on opiates and maintained a marijuana grow operation in the home where the children
resided. Petitioner could not be located. The father and children stated that they had not heard
from petitioner in a few years and the father believed that petitioner may be incarcerated out of
state. Accordingly, the petition alleged that petitioner had failed to provide any emotional,
physical, or financial support and had abandoned the children. At the preliminary hearing, the
DHHR notified the circuit court that petitioner was then incarcerated in the State of Florida.

        The circuit court held an adjudicatory hearing, and petitioner appeared by phone from her
correctional facility in Florida. Petitioner stipulated that she was a drug addict and was

                                                            
              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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incarcerated on felony drug charges. Petitioner believed she would be released from
incarceration in May of 2019.

         The circuit court held a dispositional hearing and heard testimony from petitioner, the
father, and a DHHR worker. Petitioner testified that she began using drugs at the age of fifteen,
now age thirty-five. Although she experienced periods of sobriety, petitioner was abusing
substances when she was arrested for her current felony charges in 2016. Petitioner’s lengthy
criminal history was introduced into evidence and she testified she was motivated to commit her
drug and theft related crimes as a way to procure more controlled substances. Petitioner
participated in a substance abuse treatment program in 2008, but relapsed within the year.
Petitioner testified that she last saw T.M. and K.M. in 2014 and 2015, respectively. Petitioner
testified that she shared custody with the father without a custody agreement and that petitioner
allowed the children to visit with the father. Petitioner alleged that the father did not let the
children return to Florida after these last visits; the father denied this allegation and asserted that
petitioner never exercised custody over the children. Instead, the father asserted that for several
years the children resided with either petitioner’s mother or his mother in Florida, and petitioner
merely visited the children. The father testified that once he learned petitioner was abusing
substances in 2014, he decided to remove the children from Florida so they would not be
exposed to her substance abuse. Further, the father testified that petitioner did not attempt to
make contact with the children by phone or through social media, nor did she provide any kind
of support.

        The circuit court found petitioner had a lengthy criminal and substance abuse history, was
currently incarcerated, and was unable to adequately provide for her children due to her
incarceration. Further, the circuit court found that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected in the near future and that it was
in the best interest of the children to terminate petitioner’s parental rights. Ultimately, the circuit
court terminated petitioner’s parental rights in a July 24, 2017 order. 2 Petitioner now appeals
that 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
                                                            
              2
         According to the respondents, the children’s father’s is participating in an improvement
period. The children are currently placed in a kinship home. The permanency plan is either
reunification with the father or adoption in that relative’s home.



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       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.

        On appeal, petitioner argues that the circuit court abused its discretion and committed
clear error by terminating her parental rights on the sole basis of her incarceration. Petitioner
relies on Cecil T. and asserts that “no other factors were considered at the disposition hearing
other than petitioner’s incarceration.” We disagree.

        Our review of the record on appeal reveals the circuit court considered factors other than
petitioner’s incarceration, in addition to petitioner’s incarceration, in its decision to terminate her
parental rights. It is clear from the record on appeal that the circuit court considered petitioner’s
“extensive criminal and substance abuse history,” petitioner’s history of incarceration, and her
lack of consistent care of the children. In fact, petitioner testified and admitted to all these
circumstances and referenced the admission in her argument on appeal. Those were all factors
included in the dispositional order. Additionally, the record shows that petitioner admitted to a
pattern of criminal and substance abuse activity beginning at age fifteen; did not contact the
children for two years after they left Florida; never sought contact with the children during the
proceedings; did not provide the children with any financial or emotional support since 2015,
either before or during her incarceration; and consistently relied on family members to parent her
children during her multiple incarcerations. The circuit court heard much of this evidence from
petitioner herself. Moreover, petitioner is incorrect in arguing that incarceration cannot be the
sole basis for the termination of parental rights. “[T]his Court has never held that incarceration
can not be the sole basis for terminating parental rights.” Cecil T., 228 W.Va. at 96, 717 S.E.2d
at 880. Accordingly, even taking petitioner’s argument as true, the circuit court committed no
error. For these reasons, petitioner is entitled to no relief in this regard.

        West Virginia Code § 49-4-604(b)(6) provides that the circuit court may terminate
parental rights when “there is no reasonable likelihood that the conditions of neglect or abuse can
be substantially corrected in the near future and, when necessary for the welfare of the child.”
Further, West Virginia Code § 49-4-604(c) provides that there is no reasonable likelihood that
the conditions of neglect or abuse can be substantially corrected when the parent has
“demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own or
with help” and, more specifically, “the abusing parent . . . [has] habitually abused or [is] addicted
to . . . controlled substances or drugs, to the extent that proper parenting skills have been
seriously impaired and the person . . . [has] not responded to or followed through with the
recommended and appropriate treatment.” Upon such a finding, the circuit court may terminate a
parent’s parental rights without the use of less-restrictive alternatives. Syl. Pt. 5, In re Kristin Y.,
227 W.Va. 558, 712 S.E.2d 55 (2011).

       The circuit court correctly found that there was no reasonable likelihood that petitioner
could correct the conditions of abuse and neglect in the near future. Through petitioner’s candid

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testimony, the circuit court learned of her cycle of drug abuse and incarceration which required
that others take responsibility for her children. Petitioner even testified that once T.M. and K.M.
left Florida, the pain of the separation led her to further abuse controlled substances. Rather than
attempt to make any contact with her children, petitioner resorted to substance abuse. As a result,
petitioner is incarcerated and unable to properly parent her children. Moreover, the controlling
standard that governs any dispositional decision is the best interests of the children. Syl. Pt. 4, In
re B.H., 233 W.Va. 57, 754 S.E.2d 743 (2014). Petitioner asserts that maintaining a parental
bond would be in the children’s best interest; however, petitioner did not maintain that bond for
over two years and she will be in prison until 2019. The record is clear that petitioner’s past
actions were consistently motivated by substance abuse rather than the best interest of her
children. The circuit court was correct in finding there was no reasonable likelihood that
petitioner could correct the conditions of abuse and neglect in the near future. Accordingly, we
find that the circuit court did not abuse its discretion or commit clear error in terminating
petitioner’s parental rights.
       Lastly, because the proceedings in circuit court regarding the father are still ongoing, this
Court reminds the circuit court of its duty to establish permanency for the child. Rule 39(b) of
the Rules of Procedure for Child Abuse and Neglect Proceedings requires:

       At least once every three months until permanent placement is achieved as
       defined in Rule 6, the court shall conduct a permanent placement review
       conference, requiring the multidisciplinary treatment team to attend and report as
       to progress and development in the case, for the purpose of reviewing the progress
       in the permanent placement of the child.

        Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules
of Procedure for Child Abuse and Neglect Proceedings to find permanent placement for children
within twelve months of the date of the disposition order. As this Court has stated,

               [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
       placement of an abused and neglected child following the final dispositional order
       must be strictly followed except in the most extraordinary circumstances which
       are fully substantiated in the record.

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that

               [i]n determining the appropriate permanent out-of-home placement of a
       child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4-
       604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
       home for the child and shall consider other placement alternatives, including
       permanent foster care, only where the court finds that adoption would not provide
       custody, care, commitment, nurturing and discipline consistent with the child’s
       best interests or where a suitable adoptive home can not be found.

Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the

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child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 24, 2017, order is hereby affirmed.


                                                                                      Affirmed.

ISSUED: March 12, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
 




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