                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


In re C.H. and G.H.
                                                                                     FILED
                                                                                   May 14, 2018
No. 17-1137 (Monongalia County 15-JA-51 and 52)                                  EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 


                                                          MEMORANDUM DECISION
        Petitioner Mother A.H., by counsel Scott A. Shough, appeals the Circuit Court of
Monongalia County’s December 4, 2017, order terminating her parental rights to C.H. and G.H.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Ashley V. Williams Hunt, 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 denying her a
less-restrictive dispositional alternative to termination of 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.

        On August 27, 2015, the DHHR filed a petition alleging abuse and neglect by petitioner
toward her two children. Specifically, the petition alleged that petitioner’s severe substance
abuse rendered her unable to properly parent. On September 22, 2015, petitioner stipulated to the
allegations set forth in the petition and was adjudicated as an abusing parent. On November 10,
2015, the circuit court held a dispositional hearing. The hearing was continued and petitioner was
granted a six-month post-adjudicatory improvement period.

        According to the guardian, petitioner was incarcerated in March of 2016 following a
“string of criminal acts.” However, prior to her arrest, petitioner was not participating in drug
screens, visitation, or any other services offered by the DHHR. The guardian further explained
that, upon her release from incarceration, petitioner attended a treatment facility for inpatient
substance abuse treatment for sixty-seven days, but was discharged for fighting. Petitioner was
incarcerated again following a positive drug screen. After two more failed attempts to enter and
                                                            
              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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complete an inpatient treatment program, petitioner overdosed on heroin and was arrested for
violating the terms and conditions of her probation. However, on May 2, 2016, the circuit court
granted petitioner’s motion for a post-dispositional improvement period. In June of 2017,
petitioner was arrested following an incident wherein she overdosed at her mother’s residence
and hid from the police in a closet with the children. The children were removed from their
maternal grandmother’s home and placed with their maternal grandfather.

        After multiple extensions to her post-dispositional improvement period and nearly two
years of substance abuse treatment attempts by petitioner, on August 1, 2017, the circuit court
held a dispositional hearing. The DHHR presented testimony that petitioner had a history of
substance abuse and that she was asked to leave a rehabilitation facility for fighting. The DHHR
also presented testimony that petitioner’s mother allowed her to have unsupervised contact with
the children. Further, the DHHR presented testimony regarding the incident wherein petitioner
was found by police at her mother’s home, with the children, with drug paraphernalia on her
person, and was subsequently arrested. The DHHR recommended termination of petitioner’s
parental rights. Based on the evidence, the circuit court found no reasonable likelihood that
petitioner could substantially correct the conditions of abuse and neglect in the near future and
that termination of her parental rights was in the children’s best interests.

        On November 9, 2017, the circuit court held a hearing on the father’s motion for
reconsideration of the dispositional order. The circuit court again heard testimony and proffer
from all counsel regarding the appropriate disposition in the matter. Although an employee of a
rehabilitation program testified that petitioner completed a twenty-eight day inpatient substance
abuse treatment and began a step-down program, the DHHR presented evidence demonstrating
that petitioner failed to maintain sobriety for any significant amount of time since the initiation
of the proceedings. The DHHR and guardian recommended termination of petitioner’s parental
rights in order for the children to achieve permanency. The circuit court affirmed the findings in
the dispositional order after being thoroughly advised of the repercussions each dispositional
alternative would have on the permanency of the children. The circuit court noted that petitioner
should be allowed visitation with the children, pending her sobriety. The circuit court ultimately
terminated petitioner’s parental rights in its December 4, 2017, order.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
              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

                                                            
              2
      The father’s parental rights were terminated below. According to the guardian and the
DHHR, the permanency plan for the children is adoption by the maternal grandfather.
                                                               2

 
       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.

        On appeal, petitioner argues that the circuit court erred in terminating her parental rights
instead of employing a less-restrictive dispositional alternative. Petitioner specifically argues that
she has made “significant progress” towards achieving sobriety and that she “should have been
given a reasonable amount of time to see if she could complete treatment and maintain her
sobriety.” We disagree. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to
terminate parental rights upon findings that there is “no reasonable likelihood that the conditions
of neglect or abuse can be substantially corrected in the near future” and that termination is
necessary for the children’s welfare. Further, West Virginia Code § 49-4-604(c)(1) provides that
there is no reasonable likelihood that the conditions of neglect or abuse can be substantially
corrected when “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 the recommended and appropriate
treatment.”

        Here, it is clear that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and neglect in the near future due to her continued substance abuse. While
petitioner argues on appeal that she should have been given more time to complete treatment and
maintain sobriety, in nearly two years since the initiation of the proceedings, petitioner failed to
demonstrate her ability to remain sober or complete treatment. During the proceedings, petitioner
failed to participate in services, was repeatedly incarcerated due to her drug use, overdosed on
drugs, was expelled from a treatment facility for fighting, and had unsupervised contact with the
children.
       Moreover, the circuit court noted at the dispositional hearing that the children were young
and that it was in their best interests for permanency to be established, as the proceedings had
been ongoing for nearly two years. We have held that
               “[c]ourts are not required to exhaust every speculative possibility of
       parental improvement . . . 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 part, In re
       R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).
Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4.
        Finally, it was not error for the circuit court to employ a less-restrictive dispositional
alternative because
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               “[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). As set forth above, there was
no reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect in the near future. 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
December 4, 2017, dispositional order is hereby affirmed.


                                                                                          Affirmed.




ISSUED: May 14, 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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