                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                     FILED
In Re: C.C. & T.C.
                                                                                  August 31, 2015
                                                                                RORY L. PERRY II, CLERK
No. 15-0039 (Ohio County 14-CJA-10 & 14-CJA-28)                               SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA



                               MEMORANDUM DECISION
        Joint petitioners Father A.C. and Mother O.M., by counsel Edward Lee Gillison Jr.,
appeal the Circuit Court of Ohio County’s November 18, 2014, order terminating their parental
rights to C.C. and T.C. The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Katherine M. Bond, filed its 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, petitioners allege that the circuit court
erred in (1) ratifying the emergency removal of the children at the preliminary hearings held in
March and April of 2014; (2) adjudicating petitioners as abusing parents because the DHHR
failed to prove abuse or neglect by clear and convincing evidence; (3) terminating petitioners’
improvement periods; (4) terminating petitioners’ parental rights to the children without post-
termination visitation; and (5) denying petitioners’ motions for less-restrictive dispositional
alternatives, pursuant to West Virginia Code § 49-6-5(a)(5).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 March of 2014, the DHHR filed its first abuse and neglect petition against petitioners
alleging that Petitioner Mother, then pregnant with T.C., left her two-year-old daughter, C.C.,
alone for thirty minutes in a vehicle that was not running and had a window cracked on a day
when the low temperature was twenty-nine degrees Fahrenheit. According to the petition, while
that child waited in the vehicle, Petitioner Mother gambled in a video lottery machine
establishment. The petition also alleged that Petitioner Mother failed to receive proper prenatal
care while pregnant with T.C.; that she used illegal substances while pregnant with that child;
that both petitioners failed to acknowledge the danger of leaving C.C. unattended in the vehicle

       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.


                                                  1


that day; and that both petitioners had substance abuse issues.2 At the preliminary hearing held in
later March of 2014, the circuit court heard evidence in support of the allegations in the petition.
Based on that evidence, the circuit court found that the DHHR properly removed C.C. due to
imminent danger.

        Soon thereafter, T.C. was born. Following T.C.’s birth, the DHHR filed a second petition
that contained the same allegations as the first petition but added the allegation that T.C. was in
imminent danger. At a preliminary hearing on the second abuse and neglect petition, the circuit
court found that the DHHR properly removed T.C. due to imminent danger while in petitioners’
custody due to their substance abuse issues.

        In May of 2014, the circuit court held an adjudicatory hearing on the second petition. A
Child Protective Services (“CPS”) worker testified that Petitioner Mother left C.C. in the vehicle
as alleged in the petition; that pills were found in and around the vehicle at that time; and that she
failed to receive any prenatal care while pregnant with T.C. since November of 2013. The
DHHR also presented several witnesses, including a law enforcement officer, who testified that
petitioner appeared intoxicated and staggering at the time she left her child unattended in the
vehicle and that the temperature was below freezing that night. Further testimony established that
petitioners both had a substantial substance abuse history with pills, marijuana, and heroin, and
both had been in a Suboxone program in the months leading up to the petition’s filing. Based on
the evidence presented, the circuit court adjudicated petitioners as abusing parents due to their
substance abuse and addictions that impaired their ability to parent and resulted in harm to the
children.

       In May and June of 2014, respectively, the circuit court granted petitioners post­
adjudicatory improvement periods to address their substance abuse issues. The terms and
conditions of each improvement period included participation in drug court, a substance abuse
evaluation, and compliance with the recommendations of that evaluation.

        In July of 2014, the guardian filed a motion to revoke petitioners’ improvement periods
based on their removal from the drug court program and other violations of the terms of those
improvement periods. In August of 2014, the circuit court held a hearing on the guardian’s
motion. Drug court probation officers testified that petitioners failed to comply with the drug
court program, citing attendance failures and an inability to be contacted by program
coordinators. Additionally, a CPS worker testified that petitioners missed twenty-eight drug
screens in June and July of 2014 and failed to obtain housing or employment. At that hearing,
Petitioner Mother testified that she “should” test negative for illegal substances, and the circuit
court took the matter under advisement and ordered that petitioners be immediately drug
screened. Another hearing was set for late August of 2014. Petitioners were not present at the
second hearing in August of 2014. By order entered in September of 2014, the circuit court
terminated their improvement periods and set the matter for disposition.




       2
        The DHHR later amended this abuse and neglect petition in April of 2014 to include
additional allegations of drug use.
                                                  2


        Petitioners failed to attend the dispositional hearing in October of 2014. The circuit court
heard evidence that petitioners’ services ended in August of 2014 for failure to attend and CPS
had been in contact with Petitioner Mother only once since the prior hearing through a cellular
telephone’s text messaging service. Another CPS worker testified that petitioners failed to
complete their services or to fully acknowledge their substance abuse issues. The CPS workers
also testified that petitioners’ drug screens from the hearing in August of 2014 were positive for
several illicit substances. Based on this evidence, the circuit court terminated petitioners’
parental rights to both children. This appeal followed.

       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).

         On appeal, petitioner’s first two assignments of error allege that the circuit court erred in
ratifying the emergency removal of the children at the preliminary hearings held in March and
April of 2014.3 Pursuant to Rule 16(c) of the Rules of Procedure for Child Abuse and Neglect
Proceedings, a circuit court may place a child into the custody of the DHHR or a responsible
person, in accordance with the provisions of West Virginia Code § 49-6-3(b), at any time during
the pendency of the child abuse and/or neglect proceedings if the circuit court determines that the
child is in imminent danger. West Virginia Code § 49-1-3(8) provides that “‘imminent danger to
the physical well being of the child’ means an emergency situation in which the welfare or the
life of the child is threatened.” Such a situation exists when “[t]he parent, guardian or custodian
abuse of alcohol or drugs or other controlled substance . . . has impaired his or her parenting
skills to a degree as to pose an imminent risk to a child’s health or safety[.]” In this case, the CPS
worker testified that both petitioners had a history of substance abuse, appeared intoxicated at the
time of the vehicle incident or shortly thereafter, and failed to acknowledge the danger the
vehicle incident posed. Based on that testimony, the circuit court had sufficient evidence to find
that the children were in imminent danger because their welfare was threatened by the risk
petitioners posed to their health and safety.

       3
        Petitioner presents a separate assignment of error for the circuit court’s removal of each
child. As these assignments of error are clearly related, we address them together.
                                                  3


        Next, petitioners assign error to the circuit court’s adjudication of them as abusing
parents.4 A neglected child is one whose “physical or mental health is harmed or threatened by a
present refusal, failure or inability of the child’s parent . . . to supply the child with necessary
food, clothing, shelter, supervision, medical care or education[.]” W.Va. Code § 49-1­
3(11)(A)(i). We have also explained that the West Virginia Code requires the DHHR, “in a child
abuse or neglect case, to prove ‘conditions existing at the time of the filing of the petition . . . by
clear and convincing proof.’ The statute, however, does not specify any particular manner or
mode of testimony or evidence by which the [DHHR] is obligated to meet this burden.” Syl. Pt.
3, In re F.S., 233 W.Va. 538, 759 S.E.2d 769 (2014) (citations omitted). While petitioners claim
the DHHR failed to prove abuse or neglect by clear and convincing evidence, the record clearly
demonstrates that Petitioner Mother left her child unsupervised in March of 2014 and that both
petitioners suffered from a substance abuse problem affecting their ability to parent, as evidenced
by their appearance of intoxication at the time of the petition’s filing in March of 2014; by the
pills found in or around the vehicle; by petitioners’ prior use of drugs such as pills; and by their
use of Suboxone/Subutex as a treatment for that problem in 2013 and 2014. Evidence also
established that Petitioner Mother tested positive for oxycodone, oxymorphone, and Xanax while
pregnant with T.C. Notably, petitioners chose not to testify at the adjudicatory hearing in this
matter. We have previously held that:

              [b]ecause the purpose of an abuse and neglect proceeding is remedial,
       where the parent or guardian fails to respond to probative evidence offered against
       him/her during the course of an abuse and neglect proceeding, a lower court may
       properly consider that individual’s silence as affirmative evidence of that
       individual’s culpability.

Syl. Pt. 2, W.Va. Dep’t of Health and Human Res. ex rel. Wright v. Doris S., 197 W.Va. 489, 475
S.E.2d 865 (1996). Given the great weight of evidence before the circuit court, including the
affirmative evidence of petitioners’ culpability due to their silence, the circuit court did not err in
adjudicating petitioners as abusing parents.

        Petitioners’ fourth assignment of error is that the circuit court erred in terminating their
improvement periods. With regard to termination of an improvement period, we have held that
“[i]t is within the court’s discretion to grant an improvement period within the applicable
statutory requirements; it is also within the court’s discretion to terminate the improvement
period . . . if the court is not satisfied that the [subject parent] is making the necessary progress.”
Syl. Pt. 2, in part, In re Lacey P., 189 W.Va. 580, 433 S.E.2d 518 (1993); see also West Virginia
Code § 49-6-12 (providing circuit courts discretion regarding improvement periods). As
petitioners’ assignment of error hinges on the circuit court’s discretion to weigh evidence, we
also note that “in the context of abuse and neglect proceedings, the circuit court is the entity
charged with weighing the credibility of witnesses and rendering findings of fact.” In re Emily,

       4
        West Virginia Code § 49-1-3(2) defined “abusing parent” as “a parent, guardian or other
custodian . . . whose conduct, as alleged in the petition charging child abuse or neglect, has been
adjudged by the court to constitute child abuse or neglect.” (Emphasis added).


                                                  4


208 W.Va. 325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206
W.Va. 478, 525 S.E.2d 669 (1999)); see also Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388,
497 S.E.2d 531, 538 (1997) (stating that “[a] reviewing court cannot assess witness credibility
through a record. The trier of fact is uniquely situated to make such determinations and this
Court is not in a position to, and will not, second guess such determinations.”). In this case, while
petitioners argue that they had “credible reasons” for each violation of their improvement
periods, the record on appeal reveals that the circuit court considered those “reasons” before
ruling that petitioners failed to make the necessary progress to warrant continuation of those
improvement periods. The evidence established that petitioners were removed from the drug
court for failing to attend that program and failing to maintain contact with the program’s
coordinators; had missed more than two-dozen drug screens; and had failed to acquire housing or
employment. In their defense, petitioners claimed that they did not receive notice from drug
court due to “moving back and forth between Weirton and Washington, PA”; that they could not
complete drug screens because they lost their proper identification cards; and that they generally
had transportation and telephone problems. Despite these “reasons,” we find that the circuit court
properly weighed the evidence before it and rendered findings consistent with the evidence.

        Petitioners further claim that the circuit court was not legally permitted to terminate their
improvement periods because it stated that it would not do so if petitioners entered a substance
abuse treatment program. However, as noted above, the circuit court has discretion to terminate
an improvement period if it is satisfied that a subject parent is not making the necessary progress.
The evidence demonstrates that petitioners were not making any significant progress in their
improvement periods, and it is clear from the record on appeal that they did not enter a substance
abuse treatment program. Petitioner O.M. claims to have completed a ten-day detoxification
program, but no evidence of that allegedly completed program appears in the record on appeal,
nor is a short-term detoxification program tantamount to the substance abuse treatment
contemplated in the proceedings below. Given the circumstances of this case, we find no abuse
of discretion in the circuit court’s termination of petitioners’ improvement periods.

        Petitioners’ fifth assignment of error is that the circuit court erred in terminating their
parental rights, without ordering post-termination visitation. As to post-termination visitation,
petitioners point to no place in the record on appeal where they made a motion for the same. This
Court has often held that a party must assert an issue in the circuit court to preserve it for
appellate review. See State v. LaRock, 196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996) (stating
that “‘[o]ne of the most familiar procedural rubrics in the administration of justice is the rule that
the failure of a litigant to assert a right in the trial court likely will result’ in the imposition of a
procedural bar to an appeal of that issue”); State v. Jessie, 225 W.Va. 21, 27, 689 S.E.2d 21, 27
(2009) (“general rule is that nonjurisdictional questions not raised at the circuit court level will
not be considered for the first time on appeal”) (citation omitted); see also W. Va. R. App. P.
10(c)(7) (requiring petitioner’s briefs to contain an argument exhibiting clearly the points of fact
and law presented with “appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were presented to the
lower tribunal”). Because the issue of post-termination visitation was not raised before the circuit
court, we do not address on appeal the circuit court’s failure to grant the same.




                                                   5


        As to the circuit court’s termination of petitioners’ parental rights to the children, we find
no error. West Virginia Code § 49-6-5(b)(3) explains that circumstances in which a parent fails
to respond to rehabilitative efforts or a reasonable family case plan are considered circumstances
in which there is no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected. In this case, the circuit court heard evidence that, during the pendency of
these proceedings, petitioners were removed from a drug court program for noncompliance;
missed over two dozen drug screens; failed drug screens; failed to obtain housing or
employment; failed to maintain contact with CPS; failed to complete services and to fully
acknowledge their substance abuse issues; and failed to appear for the last two hearings below.
Based on the foregoing, the circuit court found that there was no reasonable likelihood that
petitioners could substantially correct the conditions of abuse and neglect in the near future and
the children’s welfare required termination. It is clear that the circuit court properly found that
petitioners failed to respond to rehabilitative efforts and that there was no reasonable likelihood
that the conditions of neglect or abuse could be substantially corrected. Pursuant to West
Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon such
findings. Therefore, under the circumstances of this case, we find no error in the circuit court’s
order terminating petitioners’ parental rights.

        Petitioners’ sixth and final assignment of error is that the circuit court failed to impose
less-restrictive dispositional alternatives, particularly a disposition pursuant to West Virginia
Code § 49-6-5(a)(5). As explained above, the evidence in this matter supported the findings that
there was no reasonable likelihood that petitioners could substantially correct the conditions of
abuse and neglect in the near future and the children’s welfare required termination. West
Virginia Code § 49-6-5(a)(6) directs circuit courts to terminate parental rights upon such
findings. Moreover, we have held that

               [a]s a general rule the least restrictive alternative regarding parental rights
       to custody of a child under W.Va. Code [§] 49–6–5 (1977) will be employed;
       however, courts are not required to exhaust every speculative possibility of
       parental improvement before terminating parental rights where it appears that the
       welfare of the child will be seriously threatened, and this is particularly applicable
       to children under the age of three years who are more susceptible to illness, need
       consistent close interaction with fully committed adults, and are likely to have
       their emotional and physical development retarded by numerous placements.

Syl. Pt. 1, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980). Therefore, because the circuit
court properly found that termination was required in this matter, we find no error in the circuit
court’s order terminating petitioners’ parental rights without imposing less-restrictive
dispositional alternatives.

       Therefore, we find no error in the circuit court’s November 18, 2014, order, and we
hereby affirm the same.


                                                                                           Affirmed.



                                                  6


ISSUED: August 31, 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




                                    7
