                                                          STATE OF WEST VIRGINIA
                                                        SUPREME COURT OF APPEALS
                                                                                           FILED
    In Re: G.W., P.W., A.W., & B.W.                                                    October 20, 2015 
                                                                                      RORY L. PERRY II, CLERK
                                                                                    SUPREME COURT OF APPEALS
    No. 15-0467 (Mineral County 13-JA-12 through 13-JA-15)                              OF WEST VIRGINIA 




                                                              MEMORANDUM DECISION
            Petitioner Mother D.W., by counsel Brian J. Vance, appeals the Circuit Court of Mineral
    County’s December 23, 2014, order terminating her parental rights to eleven-year-old G.W.,
    nine-year-old P.W., six-year-old A.W., and five-year-old B.W. The West Virginia Department of
    Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed its response in support
    of the circuit court’s order. The guardian ad litem (“guardian”), Zelene Harman, filed a response
    on behalf of the children also in support of the circuit court’s order. On appeal, petitioner argues
    that the circuit court erred in terminating her parental rights.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 2013, the DHHR received a referral from the Mineral County Sheriff’s
    Office after deputies took emergency custody of the children after responding to two domestic
    violence 911 calls at petitioner’s home with her then-current boyfriend, D.L. When the deputies
    arrived at petitioner’s residence, she was “unresponsive” and the children were running around
    the home unsupervised. D.L. fled the residence and was considered to be armed and dangerous.
    During the investigation, G.W. and P.W. told investigators that they witnessed repeated acts of
    domestic violence and drug use. G.W. and P.W. also told investigators that D.W. exposed them
    to sexual activities. G.W. and P.W. further stated that D.L. abused them and A.W. and B.W.
    Finally, D.W. admitted to investigators that she abused alcohol and that the children were unsafe
    when the deputies took emergency custody of the children. The DHHR filed a petition for abuse
    and neglect based upon the May 31, 2013, referral.

          In July of 2013, the circuit court held its adjudicatory hearing. Petitioner stipulated that
    she exposed her children to domestic violence, illegal drug use, and inappropriate sexual
                                                                
                  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 
     
 
behavior and allowed the children to be supervised by an inappropriate caregiver. The circuit
court ordered the DHHR to provide petitioner with services aimed at correcting the conditions of
abuse and neglect. The following month, the circuit court suspended petitioner’s visitation rights
because she failed to minimally comply with her services.

        In October of 2013, the circuit court held a status hearing. Petitioner admitted that she
failed to comply with her services. The circuit court granted petitioner’s motion for a post-
adjudicatory improvement period under terms that required petitioner to participate in
individualized parenting and therapy, adult life skills classes, and substance abuse treatment and
screening.

         In February of 2014, the guardian filed a motion to terminate petitioner’s improvement
period because she failed to attend multidisciplinary team meetings, cancelled visitations, and
failed to schedule a psychological evaluation. The circuit court held a status hearing in July of
2014. After a period of noncompliance during which petitioner failed multiple drug tests, the
parties presented evidence that petitioner has since participated in parenting classes, supervised
visitation, and obtained employment. As such, the circuit court continued petitioner’s
improvement period until November 27, 2014.

        In November of 2014, the circuit court held a dispositional hearing. The DHHR presented
several witnesses who testified that while petitioner complied with the terms of her improvement
period, petitioner failed to achieve the goals of her improvement period which was granted the
previous month. According to one service provider, petitioner complied with her parenting
classes and supervised visitations. However, petitioner’s individual therapy provider testified that
petitioner missed four appointments in October of 2014. According to this provider, petitioner
needed additional counseling services to address her alcohol abuse issues. Finally, the DHHR
worker testified that petitioner failed to maintain employment, failed to participate in services for
approximately eight months, and made little successful progress in achieving the goals of her
improvement period. The DHHR worker also testified that there is “no more stability in the
home right now” and that there are no additional services that could be afforded to petitioner to
remedy the conditions of abuse and neglect. The circuit court deferred its ruling on termination
until December 12, 2014, and cautioned petitioner that she needed to “show up with everything
you need to, have everything lined up, a place for the kids, their daycare, the whole nine
yards[.]”

        In December of 2014, the circuit court held its final dispositional hearing during which
additional testimony was presented. The DHHR worker testified that petitioner tested positive
for cocaine in October of 2014, failed to attend regular drug screens, had contact with her abuser,
and failed to set-up child care. A service provide testified that petitioner has cancelled “some”
parenting sessions since the November hearing. Based on the evidence presented, the circuit
court found that petitioner failed to adequately solve the problems of abuse despite receiving a
lengthy improvement period. Given those findings, the circuit court concluded that petitioner
could not substantially correct the conditions of neglect in the near future and that termination
was necessary for the children’s welfare. By order entered December 23, 2014, the circuit court
terminated petitioner’s parental rights to the children. It is from this order that petitioner now
appeals

                                                 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).

        On appeal, petitioner argues that the circuit court erred in terminating her parental rights
when she substantially complied with the terms and conditions of her improvement period and
that the termination was not in the children’s best interests. As we recently held, “[i]n making the
final disposition in a child abuse and neglect proceeding, the level of a parent’s compliance with
the terms and conditions of an improvement period is just one factor to be considered. The
controlling standard that governs any dispositional decision remains the best interests of the
child.” Syl. Pt. 4, In re: B.H. and S.S., 233 W.Va. 57, 754 S.E.2d 743 (2014). Pursuant to West
Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights when they
find that there was no reasonable likelihood that a parent could substantially correct the
conditions of neglect in the near future and that termination was necessary for the children’s
welfare. West Virginia Code § 49-6-5(b)(3) provides that no reasonable likelihood that the
conditions of abuse or neglect can be substantially corrected exists when “[t]he abusing parent . .
. [has] not responded to or followed through with a reasonable family case plan or other
rehabilitative efforts[.]”

        In the case at bar, witnesses testified that while petitioner complied with her services, she
failed to achieve the goals of her improvement period. Service providers testified that petitioner
missed individual therapy sessions and parenting classes and failed to establish appropriate child
care for her children. Importantly, despite completing substance abuse education services and
attending Narcotics Anonymous meetings, petitioner tested positive for cocaine in October of
2014. It is clear that petitioner did not substantially comply with her services, and there was no
reasonable likelihood that she could substantially correct the conditions of abuse or neglect in the
near future. The circuit court also correctly noted that the children’s best interests were served by
establishing permanency following a lengthy improvement period. Given the circumstances of
this case, we find no error in the circuit court’s order terminating petitioner’s parental rights.




                                                 3 
 
        For the foregoing reasons, we find no error in the circuit court’s December 23, 2014,
order, and we hereby affirm the same.


                                                                                   Affirmed.

ISSUED: October 20, 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
 




                                             4 
 
