                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: C.A. and R.A.                                                              FILED
                                                                             February 21, 2017
No. 16-0473 (Mercer County 14-JA-004-DS & 14-JA-005-DS)                         RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Mother B.S., by counsel David B. Kelley, appeals the Circuit Court of Mercer
County’s April 19, 2016, order terminating her parental, custodial, and guardianship rights to
C.A. and R.A.1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel S.L. Evans, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Raeann Osborne, filed a response on behalf of the children supporting the circuit
court’s order. On appeal, petitioner argues that the circuit court erred in terminating her parental
rights upon insufficient evidence.2

        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 January of 2014, the DHHR filed an abuse and neglect petition against petitioner and
the biological father of M.S.3 The petition alleged that petitioner and the father, T.S., subjected
the children to domestic violence in the home, as indicated by disclosures from both C.A. 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).
       2
         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 on May 20, 2015. In this memorandum decision, we apply the statutes as they
existed during the pendency of the proceedings below. It is important to note, however, that the
abuse and neglect statutes underwent minor stylistic revisions and the applicable changes have
no impact on the Court’s decision herein.
       3
        M.S. is not the subject of this appeal. The DHHR later filed an amended petition to
include allegations against the biological father of R.A.
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petitioner. The petition additionally alleged substance abuse issues in the home. The DHHR
initially completed a protection plan on petitioner’s behalf and encouraged her to file for a
domestic violence protective order, which she did. After the protective order was issued, the
father appealed the same. However, petitioner moved to dismiss the protective order because she
and the father reconciled. In fact, before the protective order was dismissed, petitioner and the
father married. Although the protective order was dismissed, the DHHR did not return the
children to petitioner’s care due to the outstanding issues of domestic violence in the home.
Additionally, several days later, both parents tested positive for controlled substances.

        Petitioner waived the preliminary hearing in January of 2014. Thereafter, the circuit court
held an adjudicatory hearing, during which petitioner stipulated to the allegations in the petition,
including that she abused the children by virtue of exposing them to domestic violence. The
circuit court then granted petitioner a post-adjudicatory improvement period. In May of 2014, the
children were removed from their relative placement and placed in a foster home after the
guardian requested the same due to concerns about the relative’s failed home study.

        During a review hearing in 2014, the circuit court was informed that petitioner required
counseling because of her lack of progress in her improvement period. It was reported that
petitioner was unwilling to prioritize her children over her romantic interests. Thereafter, the
circuit court extended petitioner’s post-adjudicatory improvement period. Additionally, in
February of 2015, the circuit court granted petitioner an improvement period as disposition. At
this point in the proceedings, the DHHR indicated that petitioner’s substance abuse constituted
the largest factor that prevented reunification with her children, as petitioner continued to test
positive for controlled substances. The DHHR secured long-term inpatient substance abuse
treatment for petitioner, but she left the program because she felt that she did not need such
treatment. Following her exit from the program, petitioner tested positive for prescription drugs.
Petitioner alleged that she had a prescription for the drugs, but her service provider later testified
that she had “not seen a prescription for Percocet.”

        In April of 2016, the circuit court held a dispositional hearing, during which it found that
petitioner failed to obtain suitable housing and was still engaged in an unstable parenting
relationship. The circuit court found that petitioner had not made reasonable progress in
correcting the conditions of abuse and neglect in the home. As such, the circuit court terminated
petitioner’s parental, custodial, and guardianship rights to the children. It is from this 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

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       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 termination of petitioner’s parental, custodial, and guardianship
rights below.

       On appeal, petitioner argues that the DHHR did not satisfy its burden of proof for
termination. We have previously held that

               “W.Va.Code, 49-6-2(c) [now West Virginia Code § 49-4-601], requires
       the [DHHR], in a child abuse or neglect case, to prove ‘conditions existing at the
       time of the filing of the petition . . . by clear and convincing [evidence].’ The
       statute, however, does not specify any particular manner or mode of testimony or
       evidence by which the [DHHR] is obligated to meet this burden.” Syllabus Point
       1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).

Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997). According to petitioner, the
evidence below not only failed to establish that there was no reasonable likelihood the conditions
of abuse and neglect could be substantially corrected, but it actually established that she
complied such that reunification with the children was appropriate. The Court, however, does not
agree. On the contrary, the evidence below established that petitioner’s substance abuse issues
continued throughout the pendency of the case, unabated. Moreover, petitioner remained married
to the perpetrator of the domestic violence against her, although she alleged that the two were
separated. As the circuit court noted in its dispositional order, petitioner was “in no better shape
to reunify with [the] children” than she was two years prior.

       Pursuant to West Virginia Code § 49-4-604(c)(3), there is no reasonable likelihood the
conditions of abuse and neglect can be substantially corrected when

       [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 .
       ...

As addressed above, petitioner’s substance abuse issues persisted throughout the proceedings,
despite the fact that the DHHR obtained her placement in an inpatient treatment facility. Instead
of completing this treatment, however, petitioner voluntarily chose to leave the program because
she “was good and no longer needed treatment.” Despite petitioner’s belief that her substance
abuse issues were corrected, the record shows that she continued to test positive for substances
thereafter, including for Percocet, a medication that petitioner’s service provider never verified

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petitioner was actually prescribed. As such, it is clear that the circuit court had sufficient
evidence upon which to find that there was no reasonable likelihood petitioner could
substantially correct the conditions of abuse and neglect and that termination of her parental,
custodial, and guardianship rights was necessary for the children’s welfare. Pursuant to West
Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate parental, custodial, and
guardianship rights upon such findings.

        Finally, the Court finds no merit to petitioner’s argument that the circuit court
inappropriately shifted the burden of proof in this matter. According to petitioner, the circuit
court violated her due process rights by requiring her to prove that she did not abuse or neglect
her children. Petitioner is correct that

               “[t]he burden of proof in a child neglect or abuse case does not shift from
       the State Department of [Health and Human Resources] to the parent, guardian or
       custodian of the child. It remains upon the State Department of [Health and
       Human Resources] throughout the proceedings.” Syl. pt. 2, in part, In Interest of
       S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).

Syl. Pt. 4, In re K.L., 233 W.Va. 547, 759 S.E.2d 778 (2014). However, petitioner’s argument
ignores the record on appeal, which clearly shows that the DHHR satisfied its burden with ample
evidence, including testimony from petitioner’s service provider. The DHHR presented the
circuit court with evidence of petitioner’s inability to correct the conditions of abuse and neglect,
as outlined above. That petitioner sought to rebut this evidence is not proof that the circuit court
impermissibly shifted the burden of proof.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 19, 2016, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: February 21, 2017


CONCURRED IN BY:

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




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