                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                   FILED
In Re: J.F., L.C., R.C., & F.C.
                                                                               August 31, 2015
                                                                             RORY L. PERRY II, CLERK
No. 15-0204 (Barbour County 14-JA-13 through 14-JA-16)                     SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Mother L.F., by counsel Chaelyn W. Casteel, appeals the Circuit Court of
Barbour County’s February 3, 2015, order terminating her parental rights to J. F., L.C., R.C., and
F.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”), Karen Hill Johnson, filed a response on behalf of the children in support of
the circuit court’s order. On appeal, petitioner alleges that the circuit court erred in denying her
motion for a dispositional improvement period and in terminating her parental rights instead of
imposing a less-restrictive dispositional alternative.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 April of 2014, the DHHR filed a petition for immediate custody of the minor children
in imminent danger alleging that petitioner allowed then fifteen-year-old J.F. to drive an
automobile without a licensed driver in the car, which resulted in a serious accident. J.F. suffered
a traumatic brain injury, a broken pelvis, and other broken bones. The DHHR also alleged that
petitioner had an extensive history with Child Protective Services (“CPS”) and substantiated
claims of maltreatment because she failed to supervise her children. The petition also alleged that
petitioner left her children unsupervised for extended periods of time and abused alcohol.

        In June of 2014, the circuit court held an in camera hearing with L.C., R.C., and F.C.
Then nine-year-old R.C. testified that petitioner gave him “little tiny pieces” of sleeping pills,
locked herself in her bedroom, and left the children unsupervised for extended periods of time.
Then eleven-year-old L.C. and seven-year-old F.C. corroborated R.C.’s testimony, testifying that
petitioner also gave them sleeping pills. L.C. added that petitioner allowed J.F. to drive an

       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.
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automobile without a properly licensed adult in the vehicle. The following month, the circuit
court held an in camera hearing with then sixteen-year-old J.F. J.F. testified that she smoked
marijuana with petitioner when she was approximately twelve years old, that she witnessed
petitioner snort “hydros,” and that she snorted “hydros” with petitioner “a couple times.”2 J.F.
further testified that petitioner allowed her to consume alcohol in the house and allowed her to
drive an automobile without a properly licensed adult in the car. Finally, J.F. testified that
petitioner drove the children to school while under the influence of narcotics.

        In October of 2014, the DHHR filed an amended petition further alleging that petitioner
provided her children with prescription sleeping medication in violation of State law; furnished
J.F. with marijuana, prescription medications, and alcohol since she was twelve years old; and
used J.F. to illegally purchase prescription pain medication from a classmate. See n. 2, supra. The
DHHR alleged that the children witnessed petitioner snort pills prior to transporting them to
school and prior to teaching students.3 Finally, the DHHR alleged that petitioner was previously
arrested in South Carolina for possession of cocaine and marijuana. Thereafter, the circuit court
held an adjudicatory hearing during which petitioner stipulated that she allowed J.F. to drive an
automobile without a licensed adult in the car and that she failed to properly supervise the
children. Despite the children’s testimony, petitioner denied the other allegations. The circuit
court specifically found petitioner’s testimony to be “evasive and not credible[,]” noting that she
“cover[ed] herself in denying everything that took place in the home,” and that her “statements
today [were] extremely evasive, equivocal, and wanting to do just a minimum without being
truthful as to what was going on in the home[.]” The circuit court denied petitioner’s motion for
a post-adjudicatory improvement period.

        Following the adjudicatory hearing, petitioner received services to help her address her
failure to properly supervise the children. The circuit court held a dispositional hearing in
November of 2014. During the hearing, petitioner’s service provider testified that petitioner
complied with her parental skills classes as they related to proper supervision of the children.
However, the service provider also testified that petitioner denied introducing J.F. to illegal drugs
and that “she has not addressed all the manners in which the [circuit court] found her to be
abusive and neglectful.” Ultimately, the circuit court denied petitioner’s motion for a
dispositional improvement period because she failed to acknowledge that she introduced J.F. to
illegal drugs, gave the children prescription drugs, and used drugs with J.F. The circuit court
terminated petitioner’s parental rights. Petitioner appeals from the dispositional 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
       2
           J.F. also testified that she bought “hydros” from a classmate for petitioner at petitioner’s
request.
       3
           According to the appendix record, petitioner was an elementary/middle school teacher.
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       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, the Court finds
no error in the circuit court’s order denying petitioner’s motion for a dispositional improvement
period or in terminating her parental rights.

        Petitioner argues that she was entitled to a dispositional improvement period because she
participated in and was receptive to services provided to her throughout the initial phases of the
underlying case. According to petitioner, this established that she was “reasonably likely to
comply with the terms of an improvement period.” However, the Court does not agree. As the
circuit court specifically found below, petitioner failed to acknowledge her substance abuse
issues and denied providing J.F. with illegal drugs. These findings are supported by testimony
from petitioner’s children that petitioner gave them sleeping pills, smoked marijuana with J.F.,
and snorted “hydros” with J.F. Further, one of petitioner’s service providers testified that
petitioner has not addressed all of the manners in which the circuit court found her to be abusive
and neglectful.

        Pursuant to West Virginia Code § 49-6-12(c)(2), circuit courts have discretion to grant an
improvement period when the parent “demonstrates, by clear and convincing evidence, that the
[parent] is likely to fully participate in the improvement period . . . .” Moreover, in discussing
improvement periods, we have previously held that

       [i]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
       of the basic allegation pertaining to the alleged abuse and neglect or the
       perpetrator of said abuse and neglect, results in making the problem untreatable
       and in making an improvement period an exercise in futility at the child’s
       expense.

In re Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). In the instant matter, it is clear that the circuit
court did not abuse its discretion in denying petitioner’s motion for a dispositional improvement
period because of her failure to fully acknowledge the conditions of abuse and neglect in the
home. As outlined above, petitioner minimized her conduct throughout the proceedings in that
she denied she had a substance abuse problem and that she introduced J.F. to using illegal drugs.
Moreover, even after receiving services, petitioner has failed to address all the issues of the
underlying abuse and neglect. In light of this evidence, we find no error in the circuit court’s
order denying her a dispositional improvement period.



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        Further, the Court finds that the circuit court properly terminated petitioner’s parental
rights upon a finding that she could not substantially correct the conditions of abuse and neglect
in the home. The Court further finds that, notwithstanding petitioner’s argument to the contrary,
a less-restrictive dispositional alternative did not exist. Pursuant to West Virginia Code § 49-6­
5(a)(6), circuit courts are directed to terminate parental rights upon findings that there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected and
when necessary for the child’s welfare. We have held as follows:

               “Termination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49–6–5 . . . 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) . . . 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). Pursuant to West Virginia
Code § 49-6-5(b)(3), a situation in which there is no reasonable likelihood that the conditions of
abuse or neglect can be substantially corrected includes one in which

       [t]he 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.

        The circuit court was presented with evidence that, while petitioner responded to some
services implemented below, she continued to deny any wrongdoing in regard to introducing the
children to using drugs, giving the children drugs, and using drugs with J.F. Petitioner minimized
her conduct throughout the proceedings, denied that she had a substance abuse problem, denied
introducing her children to using illegal drugs, and failed to address all of the issues of the
underlying abuse and neglect. For these reasons, termination of petitioner’s parental rights to
these children was not error.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 3, 2015, order is hereby affirmed.
                                                                                     Affirmed.

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

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