                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                  FILED
                                                                              November 8, 2019
                                                                               EDYTHE NASH GAISER, CLERK
In re B.F., M.H., and B.R.                                                     SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
No. 19-0416 (Wood County 17-JA-242, 17-JA-243, and 17-JA-244)




                              MEMORANDUM DECISION


        Petitioner Mother K.R., by counsel Jeffrey B. Reed, appeals the Circuit Court of Wood
County’s March 8, 2019, order terminating her parental rights to B.F., M.H., and B.R.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”),
Jessica E. Myers, filed a response on behalf of the children in support of the circuit court’s order.
Petitioner filed a reply. On appeal, petitioner argues that the circuit court failed to make
sufficient findings of fact in its dispositional order, erred in terminating her parental rights, and
erred in denying her request for post-termination visitation.

        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 September 6, 2017, the DHHR filed an abuse and neglect petition against petitioner
alleging that, immediately following the birth of B.F., petitioner tested positive for
methamphetamine, amphetamine, THC, and cocaine. The child tested positive for


       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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methamphetamine, amphetamine, THC, and Suboxone after he was born. Petitioner later
admitted that she snorted heroin in her hospital room right before delivering B.F.

        On December 5, 2017, the circuit court held an adjudicatory hearing. Based upon her
stipulation to the allegations in the petition, petitioner was adjudicated as an abusing parent. The
circuit court granted her a post-adjudicatory improvement period. On February 8, 2018,
petitioner was arrested and incarcerated upon a charge of possession with intent to deliver a
controlled substance. On February 20, 2018, the circuit court held a review hearing during which
it found that petitioner failed to comply with her post-adjudicatory improvement period prior to
her incarceration. Due to petitioner’s lack of participation, the circuit court scheduled a
dispositional hearing.

        On April 17, 2018, the circuit court held a dispositional hearing and granted petitioner a
post-dispositional improvement period. Petitioner subsequently admitted herself to an in-patient
substance abuse treatment program. On September 18, 2018, the circuit court held a review
hearing regarding petitioner’s post-dispositional improvement period. The DHHR presented
evidence that petitioner was not complying with services and failed to complete the treatment
program. The DHHR moved to terminate petitioner’s improvement period, and the circuit court
scheduled the case for a dispositional hearing. On November 5, 2018, the circuit court held a
dispositional hearing, which was continued.

         On December 7, 2018, the circuit court resumed the dispositional hearing and was
informed that petitioner had been complying with some of the terms and conditions of her
improvement period. The court granted petitioner’s motion to extend her post-dispositional
improvement period. In February of 2019, petitioner again entered an in-patient substance abuse
treatment program. She was subsequently caught with alcohol in the facility. The facility allowed
her to continue treatment, but suggested that petitioner needed a more structured treatment
facility.

        On March 5, 2019, the circuit court held a final dispositional hearing in the matter. The
DHHR presented evidence that petitioner began multiple substance abuse treatment programs
during the course of the proceedings, but failed to complete any of them. Additionally, petitioner
failed to fully participate in parenting and adult life skills classes and was released by the
provider due to her noncompliance. Petitioner also failed to participate in drug screens and tested
positive for illegal substances on multiple occasions. The DHHR and guardian moved to
terminate petitioner’s parental rights and deny her request for post-termination visitation due to
her continued substance abuse issues. The circuit court took judicial notice of the case file and
adopted the position of the DHHR and the guardian. The court noted on the record that petitioner
failed to make any substantial improvements during the proceedings, which had been ongoing
for approximately nineteen months. Based upon the evidence presented, the circuit court found
that there was no reasonable likelihood that petitioner could substantially correct the conditions
of abuse and neglect in the near future and that the termination of her parental rights was in the
children’s best interests. Ultimately, the circuit court terminated petitioner’s parental rights and




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denied her request for post-termination visitation in its March 8, 2019, order. Petitioner now
appeals that order.2

       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, this Court
finds no error in the proceedings below.

        First, petitioner argues that the circuit court’s dispositional order “does not contain
sufficient findings of fact and conclusions of law for proper appellate review.” In support,
petitioner contends that the court failed to comply with Rule 36 of the Rules of Procedure for
Child Abuse and Neglect Proceedings which provides, in part, that “[a]t the conclusion of the
disposition hearing, the court shall make findings of fact and conclusions of law, in writing or on
the record, as to the appropriate disposition in accordance with the provisions of W. Va. Code §
49-4-604.”3 Petitioner asserts that the statements in the dispositional order were conclusions, not
       2
        According to the parties, the permanency plan for M.H. is to remain in the custody of
her nonabusing father. S.F., the father of B.F. and B.R., successfully completed an improvement
period and the petition against him was dismissed. The permanency plan for B.F. is to remain in
his father’s custody. The permanency plan for B.R., who has resided with his maternal
grandmother since she was granted legal guardianship shortly after the child was born, is to
remain in the legal guardianship with the maternal grandmother.
       3
         Also in support of her argument, petitioner contends that the circuit court’s order
violates case law that provides that

       [w]here a trial court order terminating parental rights merely declares that there is
       no reasonable likelihood that a parent can eliminate the conditions of neglect,
       without explicitly stating factual findings in the order or on the record supporting
       such conclusion, and fails to state statutory findings required by West Virginia
       Code § [49-4-604(b)(6)] . . . on the record or in the order, the order is inadequate.

                                                                                   (continued . . . )
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findings of fact. We disagree and find that the order in question meets the applicable
requirements for review on appeal.
        The record shows that the circuit court made sufficient findings on the record to support
its written findings in the dispositional order. The court adopted the position of the DHHR and
the guardian and specifically found that petitioner failed to make any measurable improvements
during the proceedings, which lasted approximately nineteen months. In its dispositional order,
the circuit court made the appropriate findings regarding termination of parental rights as
required by West Virginia Code § 49-4-604. Therefore, the circuit court did not err, and
petitioner is entitled to no relief.

        Next, petitioner argues that the circuit court erred in terminating her parental rights
because the children had already achieved permanency with family members. We disagree. West
Virginia Code § 49-4-604(b)(6) provides that a circuit court may 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 welfare of the
children. Further, West Virginia Code § 49-4-604(c)(3) provides that there is no reasonable
likelihood that the conditions of abuse and neglect can be substantially corrected when the
abusing parent has

       not responded to or followed through with a reasonable family case plan or other
       rehabilitative efforts of social, medical, mental health, or other rehabilitative
       agencies designed to reduce or prevent the abuse or neglect of the child, as
       evidenced by the continuation or insubstantial diminution of conditions which
       threatened the health, welfare, or life of the child.

        Here, the record shows that petitioner entered multiple in-patient treatment programs, but
failed to complete any program during the proceedings. Further, petitioner failed to fully
participate in parenting and adult life skills classes and was ultimately released by the provider
due to her noncompliance. Additionally, petitioner missed several drug screens and tested
positive for substances multiple times during the proceedings. In sum, petitioner was unable to
make any meaningful improvements, despite ample time and opportunities. Although petitioner
argues that the termination of her parental rights was unnecessary because the children had
achieved permanency with family members, the termination of petitioner’s parental rights was
necessary for the children’s welfare due to her continued substance abuse issues and failure to
correct the conditions of abuse and neglect. Further, M.H. remains in the sole custody of her
biological father. See In re Emily, 208 W. Va. 325, 344, 540 S.E.2d 542, 561 (2000) (stating that
West Virginia law “permits the termination of one parent’s parental rights while leaving the
rights of the nonabusing parent completely intact, if the circumstances so warrant.”). Moreover,
the circuit court specifically found that the termination of petitioner’s parental rights was in the
children’s best interests and that the children needed continuity of care and caretakers. Based on
the foregoing, it is clear that there was no reasonable likelihood that petitioner could

Syl. Pt. 4, in part, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001).




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substantially correct the conditions of abuse and neglect in the near future and that termination
was necessary for the children’s welfare. We have also held as follows:

                “Termination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [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 [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). Accordingly, we find no error
in the circuit court’s termination of petitioner’s parental rights.

         Finally, petitioner argues that the circuit court erred in denying her post-termination
visitation with the children. According to petitioner, the Court Appointed Special Advocate’s
report recommended “possible supervised visits . . . at the guardian’s discretion” and that the
guardian recommended that any post-termination visitation “should be at the discretion of the
grandparents and/or parents.” Petitioner asserts that it was “totally inappropriate” for the
guardian to change her position and argue against post-termination visitation at the dispositional
hearing. We disagree.

       In regard to post-termination visitation, we have previously held that

                “[w]hen parental rights are terminated due to neglect or abuse, the circuit
       court may nevertheless in appropriate cases consider whether continued visitation
       or other contact with the abusing parent is in the best interest of the child. Among
       other things, the circuit court should consider whether a close emotional bond has
       been established between parent and child and the child’s wishes, if he or she is of
       appropriate maturity to make such request. The evidence must indicate that such
       visitation or continued contact would not be detrimental to the child’s well being
       and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
       446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002). The circuit court had the
discretion to grant or deny post-termination visitation consistent with the children’s best interests
and was not bound by any of the recommendations or arguments of the parties. Petitioner did not
present any evidence during the dispositional hearing regarding her bond with the children. In
fact, the record shows that the two older children lived with other family members before the
abuse and neglect petition was even filed. The record shows that petitioner’s contact with the
children during the proceedings was sporadic and that she did not see the children during most of
her post-dispositional improvement period. Further, petitioner’s failure to comply with her
family case plan and her continued substance abuse issues demonstrated that post-termination
visitation was contrary to the children’s best interests. Therefore, the circuit court did not abuse
its discretion in denying petitioner’s request for post-termination visitation.



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      For the foregoing reasons, we find no error in the decision of the circuit court, and its
March 8, 2019, order is hereby affirmed.


                                                                                     Affirmed.

ISSUED: November 8, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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