                               STATE OF WEST VIRGINIA
                             SUPREME COURT OF APPEALS
                                                                                    FILED
In re I.R.-V. and X.C.                                                          November 8, 2019
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
No. 19-0321 (Harrison County 17-JA-119-1 and 18-JA-12-1)                             OF WEST VIRGINIA




                                MEMORANDUM DECISION



        Petitioner Mother T.R., by counsel Allison S. McClure, appeals the Circuit Court of
Harrison County’s February 7, 2019, order terminating her parental rights to I.R.-V. and X.C.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N.
Felton-Ernest, filed a response in support of the circuit court’s order. The guardian ad litem, Julie
N. Garvin, 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 without
first employing a less-restrictive alternative.

       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 August of 2017, the DHHR filed a child abuse and neglect petition against petitioner
alleging that she abused and neglected I.R.-V. through her drug abuse.2 Specifically, referrals
indicated that petitioner was selling drugs and medication in her home and that drug addicts
frequented the home. Further, the DHHR alleged that I.R.-V., then four years old, was found
walking alone on a busy street. After being taken to a neighbor’s home, the child disclosed that he
had not eaten all day and was walking to a store. When questioned about the child’s whereabouts
by Child Protective Services (“CPS”) workers, petitioner claimed that her neighbor grabbed the
child while she was inside her home and that she spent an hour wandering the streets looking for
him. At that time, a protection plan was implemented and petitioner and the child were placed in

       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
           At the time of the petition’s filing, petitioner was pregnant with her second child, X.C.
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the home of petitioner’s brother’s girlfriend, V.S. However, shortly thereafter, V.S. called CPS to
report that petitioner kept going into the bathroom and remaining there for long periods of time
before passing out and sleeping all day. V.S. further reported seeing needles in petitioner’s
possession. During an interview conducted the next day, petitioner admitted to a history of
substance abuse, but claimed she had “gotten clean from methamphetamine a few months before
she got pregnant [with X.C.]” The DHHR concluded that petitioner was unwilling or unable to
perform her parental duties and responsibilities, was actively abusing drugs, and her choices and
drug abuse affected the safety of the child. Petitioner waived her preliminary hearing.

        The adjudicatory hearing was rescheduled several times for various reasons at the request
of both the DHHR and petitioner. Throughout August of 2017, September of 2017, and November
of 2017, and while pregnant with X.C., petitioner tested positive for a myriad of substances
including methamphetamine, buprenorphine, and norbuprenorphine. Ultimately, petitioner gave
birth to X.C. in November of 2017. The DHHR filed an amended petition in February of 2018 to
include X.C. in the proceedings and alleged that petitioner abused drugs during her pregnancy with
X.C. Petitioner also admitted to using morphine at the time of X.C.’s birth. Further, petitioner
continued to test positive for substances following the child’s birth.

         At an adjudicatory hearing held in March of 2018, petitioner stipulated to the conditions of
abuse and neglect alleged against her, including that she had a history of substance abuse that
adversely affected her parental judgment and decision-making abilities, thereby exposing I.R.-V.
to a dangerous environment. Petitioner also admitted to testing positive for amphetamines and
methamphetamine throughout the pendency of the case, including while pregnant with X.C. The
circuit court accepted petitioner’s stipulation, adjudicated her as an abusing parent, and granted
her an improvement period later in April of 2018. As part of the terms and conditions, petitioner
was required to submit to a psychological evaluation, submit to a drug and alcohol evaluation,
follow any of the resulting recommendations from those evaluations, submit to random drug
screens, attend individualized therapy, seek substance abuse treatment, participate in parenting and
adult life skills classes, participate in supervised visitation with the children, maintain a stable and
clean residence, and maintain employment.

        The circuit court held a dispositional hearing in October of 2018. Petitioner failed to attend,
but was represented by counsel. The circuit court suspended petitioner’s supervised visitation at
the request of the DHHR based upon petitioner’s failure to consistently attend visits and her failure
to participate in other services, and continued the dispositional hearing to allow petitioner time to
appear.

         The circuit court reconvened the dispositional hearing in December of 2018. The DHHR
presented several witnesses in support of its motion to terminate petitioner’s parental rights.
Testimony established that, although petitioner complied with her improvement period for a brief
period, she failed to complete any services as of the dispositional hearing. Service providers
testified that petitioner failed to acknowledge her substance abuse and the effect it had on her
children. Providers also testified that petitioner admitted to using methamphetamine, stating that
she saw no reason to stop using the substance, but then later claimed sobriety. All of her providers
described petitioner’s demeanor as hostile and combative. Petitioner blamed CPS for her situation
and claimed that the workers had a personal vendetta against her roommate. Testimony further

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established that around August of 2018, petitioner began refusing to meaningfully attempt to
schedule services, claiming her job and treatment program prevented her from doing so.
Eventually, the service providers for parenting and adult life skills classes suspended their services
due to petitioner’s noncompliance. Additionally, petitioner missed several visits with the child, but
complied sufficiently to avoid suspension of this service until the circuit court terminated visits in
October of 2018.

         A CPS worker testified that petitioner submitted to a psychological evaluation and a drug
and alcohol assessment in June of 2018. Petitioner was diagnosed with unspecified personality
disorder, opioid use disorder, and unspecified anxiety disorder. The evaluating psychologist noted
that petitioner exhibited significant psychopathology, intense anger, a high level of instability, and
little emotional control. The evaluator ultimately recommended that petitioner continue psychiatric
intervention, long-term intensive individual psychotherapy, and parenting classes. The drug and
alcohol assessment likewise recommended further substance abuse treatment. The CPS worker
testified that petitioner failed to follow through with any of these recommendations. Although
petitioner claimed that she was going to obtain her own provider for therapy services, she never
provided confirmation and, several months later, eventually requested provider information from
the DHHR. However, after inquiring with the recommended provider, petitioner “refused
absolutely every provider and appointment that they offered.”

        After hearing evidence, the circuit court found that petitioner failed to fully participate in
the case, acknowledge her issues with substance abuse, or attempt to address her mental health or
substance abuse issues. As such, the circuit court concluded that there was no reasonable likelihood
that petitioner could 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. It is from the February 7,
2019, dispositional order terminating petitioner’s parental rights that she appeals.3

       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).


       3
       The fathers’ parental rights were also terminated during the proceedings below. The
permanency plan for the children is adoption by a foster family.
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        On appeal, petitioner argues that the circuit court should not have terminated her parental
rights without first employing a less-restrictive alternative. According to petitioner, she
participated in services and showed “substantial improvement at one point during her improvement
period.” Further, petitioner argues that she was bonded with I.R.-V. and was developing a bond
with X.C. Petitioner avers that given the testimony of her compliance with certain aspects of her
improvement period, there was a reasonable likelihood that she would be able to correct the
conditions of abuse in the future and that termination of her parental rights was not necessary
because her children were placed in a kinship placement. As such, petitioner asserts that she should
have been granted disposition pursuant to West Virginia Code § 40-4-604(b)(5).4 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. According to West Virginia Code § 49-4-604(c)(3), a situation in which there is “[n]o
reasonable likelihood that conditions of neglect or abuse can be substantially corrected” includes
one in which the 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.

        Petitioner failed to respond to or follow through with rehabilitative efforts designed to
reduce or prevent the abuse and neglect of her children. Petitioner’s compliance with services was
sporadic, at best, and she failed to successfully complete any aspect of her improvement period.
Testimony established that petitioner initially complied with services but eventually ceased
scheduling her parenting and adult life skills classes, became combative and hostile with service
providers, and only minimally complied with supervised visitation. Further, petitioner failed to
comply with any of the recommendations resulting from her psychological evaluation or her drug
and alcohol assessment, including failing to comply with any sort of substance abuse treatment.
Petitioner tested positive for drugs several times throughout the proceedings, failed to
acknowledge her issues with substance abuse, refused to schedule therapy sessions with any
provider, and blamed CPS for her situation. While petitioner claims that she should have been
granted a less-restrictive disposition because she would eventually be able to correct the conditions
of abuse and neglect, we have previously held that “[c]ourts are not required to exhaust every
speculative possibility of parental improvement . . . where it appears that the welfare of the child


       4
           Pursuant to West Virginia Code § 49-4-604(b)(5),

       [u]pon a finding that the abusing parent or battered parent or parents are presently
       unwilling or unable to provide adequately for the child’s needs, [a circuit court
       may] commit the child temporarily to the care, custody, and control of the state
       department, a licensed private child welfare agency, or a suitable person who may
       be appointed guardian by the court.
                                                  4
will be seriously threatened.” Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4, in part
(quoting syl. pt. 1, in part, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)). Moreover,

               “[t]ermination 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). Given the evidence of
petitioner’s lack of meaningful participation in the underlying proceedings, we agree with the
circuit court’s findings that there was no reasonable likelihood that petitioner could correct the
conditions of abuse or neglect in the near future and that termination of her parental rights was
necessary for the children’s welfare. Accordingly, we find that petitioner is entitled to no relief in
this regard.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 7, 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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