                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In Re: J.H. and R.D.                                                              FILED
                                                                                November 26, 2013
                                                                             RORY L. PERRY II, CLERK
No. 13-0523 (Kanawha County 12-JA-263 and 12-JA-264)                       SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA



                                MEMORANDUM DECISION

        Petitioner Mother filed this appeal, by counsel Edward L. Bullman, from the Circuit
Court of Kanawha County, which terminated her parental rights to the subject children by order
entered on April 26, 2013. The guardian ad litem for the children, W. Jesse Forbes, filed a
response supporting the circuit court’s order. The Department of Health and Human Resources
(“DHHR”), by its attorney Michael L. Jackson, has also filed a response in support of the circuit
court’s order. Petitioner argues that the circuit court erred by not granting her an improvement
period and by not dismissing the case to allow her to petition for further parenting time in family
court.

        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 November of 2012, the DHHR filed the abuse and neglect petition that initiated the
instant case. The petition recounted the DHHR’s prior efforts to institute in-home services with
petitioner in February of 2012, which were without success because petitioner failed to comply
with services for drug treatment, parenting skills, and anger management. The petition further
alleged that one of petitioner’s children tested positive for cocaine at birth and that petitioner
continues to abuse narcotics. Petitioner waived her rights to a preliminary hearing. The circuit
court adjudicated petitioner as abusive and neglectful to her children due to her drug use and
granted both of the children’s respective fathers care and custody of them. At both the
adjudicatory hearing and the dispositional hearing, the circuit court heard testimony that
petitioner failed to comply with the services the DHHR offered to her. By order entered on April
26, 2013, the circuit court denied petitioner’s motion for an improvement period and terminated
her parental rights, but granted visitation at the discretion of the children’s fathers. Petitioner
now appeals this 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

                                                1
       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 raises two assignments of error. First, petitioner argues that the
circuit court erred by denying her an opportunity to participate in an improvement period. She
asserts that the three-month duration of the case was too short a time to control her drug
addiction. Upon our review of the record, we find no error or abuse of discretion by the circuit
court. Pursuant to West Virginia Code § 49-6-12, a parent who moves to participate in an
improvement period bears the burden of proving to the circuit court, by clear and convincing
evidence, that he or she will substantially comply with the terms of an improvement period. The
circuit court has the discretion to grant or deny a motion for an improvement period. The record
reflects that petitioner failed to take full advantage of the services offered to her, not only after
the November of 2012 petition was filed, but as the case proceeded through the abuse and
neglect proceedings. For instance, at the adjudicatory hearing, petitioner testified that she was
able to care for her children while abusing opiates. At the dispositional hearing, a DHHR worker
testified that petitioner failed to participate in drug screens after the adjudicatory hearing in
December of 2012.

        Petitioner also argues that the circuit court erred in terminating her parental rights rather
than dismissing the case. Petitioner asserts that because her children are placed with their fathers,
she could have petitioned for further parenting time had her rights not been terminated. Petitioner
argues that a less restrictive alternative under West Virginia Code § 49-6-5(a)(5)(iii) or (iv) was
available with their relative placements. Upon our review, we find no error with the circuit
court’s decision to terminate petitioner’s parental rights. “‘Although parents have substantial
rights that must be protected, the primary goal in cases involving abuse and neglect, as in all
family law matters, must be the health and welfare of the children.’ Syl. Pt. 3, In re Katie S., 198
W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W.Va. 44, 743 S.E.2d 352
(2013). Our review of the record reflects that petitioner made no progress throughout this case.
Petitioner was offered services but failed to substantially comply. The record and the circuit
court’s findings support its conclusions that there was no reasonable likelihood to believe that
conditions of abuse and neglect could be substantially corrected in the near future, and that
termination was necessary for the children’s welfare. Pursuant to West Virginia Code § 49-6­
5(a)(6), circuit courts are directed to terminate parental rights upon such findings.

       For the foregoing reasons, we affirm.



                                                 2
                                      Affirmed.

ISSUED: November 26, 2013

CONCURRED IN BY:

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




                                  3
