                               STATE OF WEST VIRGINIA
                             SUPREME COURT OF APPEALS


                                                                                       FILED
In re A.B. and A.Y.
                                                                                    June 25, 2020
                                                                                  EDYTHE NASH GAISER, CLERK
No. 19-1101 (Roane County 19-JA-10 and 19-JA-28)                                  SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA




                                MEMORANDUM DECISION



         Petitioner Mother C.B., by counsel Erica Brannon Gunn, appeals the Circuit Court of
Roane County’s September 11, 2019, order terminating her parental rights to A.B. and A.Y. 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, Ryan M. Ruth, filed
a response on behalf of the children in support of the circuit court’s order. On appeal, petitioner
argues that the circuit court erred by denying her request for an improvement period and
terminating her parental rights.

       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 2019, the DHHR filed an abuse and neglect petition against petitioner based
upon her drug use and its effect on her ability to safely parent A.B. 2 The petition alleged that
petitioner’s home was unsafe and unsanitary and that petitioner and the child were living with her
father, who had been previously convicted of multiple counts of child neglect creating risk of
injury and whose parental rights had been previously terminated. The DHHR also alleged that
prior to the filing of the petition, petitioner admitted to using both methamphetamine and heroin.



       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
           A.B. was the only child that was named in the initial petition.
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Finally, the petition alleged that she tested positive for methamphetamine just four days before the
petition was filed. Thereafter, petitioner waived her preliminary hearing.

        In February of 2019, the circuit court held an adjudicatory hearing wherein a DHHR
caseworker testified to the allegations in the petition, including that petitioner admitted to using
methamphetamine and heroin and that she tested positive for methamphetamine just prior to the
petition’s filing.3 The caseworker also testified that petitioner’s home was unsafe, especially
considering her decision to live with her father and grandparents, all of whom had been convicted
of child neglect creating a risk of injury. After the presentation of evidence, the circuit court
adjudicated petitioner as an abusing and neglecting parent based upon her drug abuse and its
negative impact on her ability to safely parent her child.

        Following her adjudication, the DHHR alleged that petitioner failed to fully participate in
the case and filed a motion to terminate her parental rights in April of 2019. Specifically, the
DHHR filed a case plan indicating that petitioner was admitted to an inpatient drug treatment
program and voluntarily left approximately a month later, saying “she would handle things her
way” and that “recovery was not for her.” The case plan further stated that the treatment program
manager described petitioner as “immature in her recovery and hard to reach.” Finally, the case
plan indicated that petitioner also failed to begin parenting or life skills classes. As such, the DHHR
alleged that there was no reasonable likelihood that petitioner would participate in an improvement
period or substantially correct the conditions of abuse and neglect. Later that month, the DHHR
filed an amended petition that included petitioner’s older child, A.Y.

        In May of 2019, the circuit court held an adjudicatory hearing regarding A.Y. At the
hearing, the circuit court adjudicated petitioner as an abusing and neglectful parent given that “her
substance abuse was such that it impaired her ability to parent to such a degree as to pose a risk”
to the child.

        The circuit court held a hearing in July of 2019 wherein petitioner testified that she had
successfully entered a new inpatient drug treatment program and moved for an improvement
period. At the conclusion of the hearing, the DHHR withdrew its motion to terminate petitioner’s
parental rights, and the circuit court remarked that petitioner was “on the right track” and that her
new program was an “opportunity to do what needs to be done to get your child back.” The circuit
court then directed the parties to develop a case plan.

         In August of 2019, the circuit court learned that petitioner failed to complete her inpatient
drug treatment program, denied her motion for an improvement period, and suspended her
visitation with the children due to noncompliance. Later that month, the DHHR renewed its motion
for the termination of petitioner’s parental rights because of her failure to comply with the inpatient
treatment program.

       The circuit court held a dispositional hearing in September of 2019 wherein the DHHR
moved for petitioner’s parental rights to be terminated. At the hearing, petitioner testified and
admitted that she had been discharged from three different long-term residential treatment


       3
           Petitioner did not attend the hearing, but was represented by counsel.
                                                   2
programs throughout the proceedings and was discharged twice from one program after a second
attempt. Under questioning from the DHHR, petitioner argued that she was unfairly discharged
from the programs, that she did not abuse drugs—despite positive screens—and, that she never
abused her children. Based on the evidence, the circuit court found that there was no reasonable
likelihood petitioner could substantially correct the conditions of abuse and neglect, given that
petitioner “demonstrated an inadequate capacity to solve the problems of abuse or neglect on her
own or with the assistance of the [DHHR] as evidenced by her failure to complete [three] separate
long-term drug treatment programs and complete lack of insight into the severity of her substance
abuse.” Additionally, the circuit court found that petitioner was discharged from one of the
programs for “threatening other residents, threatening people on the . . . church van, acting out in
meetings, refusing to do required household chores, [and] being argumentative with staff.” The
circuit court further found that petitioner “accept[ed] no responsibility in her discharge from two
other long-term residential treatment programs.” The circuit court went on to find that petitioner
“habitually abused controlled substances to the extent that proper parenting skills have been
seriously impaired” and that she had not “responded to or followed through with appropriate
treatment which could have improved the capacity for adequate parental functioning.” Finally, the
circuit court found that petitioner failed to follow through with a reasonable family case plan and
that continuation in her home was not in the best interests of the children. Accordingly, the circuit
court terminated her parental rights to the children. 4 It is from the dispositional 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 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 alleges that the circuit court erred in terminating her parental rights
without giving her additional time to participate in an improvement period. 5 While petitioner


        4
       The permanency plan for A.B. is adoption by her current foster family. A.Y.’s father is a
nonabusing parent, and the child has achieved permanency in his care.
        5
       In support of this assignment of error, petitioner additionally argues that the children’s
removal from her care was improper because she does not believe the children were in imminent
                                                    3
acknowledges that “the court does not have to exhaust all less restrictive alternatives,” she argues
that she “had enrolled herself in three separate rehab programs in an effort to address the
underlying substance abuse issues.” Petitioner further argues that although she either left or was
kicked out of those same three programs, she still had ample time to participate in substance abuse
treatment. In light of this, she argues that she should have been afforded the opportunity to
participate in an improvement period. We disagree.

        West Virginia Code § 49-4-610(2)(B) provides that the circuit court may grant a parent a
post-adjudicatory improvement period when the parent “demonstrates, by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period.” “This Court
has explained that ‘an improvement period in the context of abuse and neglect proceedings is
viewed as an opportunity for the miscreant parent to modify his/her behavior so as to correct the
conditions of abuse and/or neglect with which he/she has been charged.’” In re Kaitlyn P., 225 W.
Va. 123, 126, 690 S.E.2d 131, 134 (2010) (citation omitted). However, the circuit court has
discretion to deny an improvement period when no improvement is likely. In re Tonjia M., 212 W.
Va. 443, 448, 573 S.E.2d 354, 359 (2002). Further, 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) (citation omitted).

        On appeal, petitioner continues to “contest[] the truthfulness of the allegations made
against her,” although she accepts that she made “a general admission to substance abuse that
impaired her ability to parent.” The record shows, however, that at the dispositional hearing
petitioner denied any wrongdoing or responsibility after being discharged from multiple inpatient
drug treatment programs, denied abusing drugs despite positive screens, and denied abusing her
children. As such, given petitioner’s failure to acknowledge her drug addiction and how her actions
constituted abusive and neglectful behavior, the granting of an improvement period would have
been futile. While petitioner argues that nothing precluded the circuit court from granting her an
improvement period in this case, there is no evidence that she would have complied with an
improvement period, in light of the fact that she failed to comply with the terms of her case plan.6
Accordingly, we find no error in the circuit court’s denial of her motion.


danger when removed. We find, however, that petitioner’s waiver of her preliminary hearing—the
hearing at which she could have appropriately challenged the children’s removal—constitutes a
waiver of this issue on appeal. Indeed, “‘[o]ur general rule is that nonjurisdictional questions . . .
raised for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc.,
206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999).” Noble v. W. Va. Dep’t of Motor
Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009).
       6
        In support of this assignment of error, petitioner points out that the circuit court
erroneously made findings regarding her noncompliance with an improvement period, despite the
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         In terminating petitioner’s parental rights, the circuit court specifically found that petitioner
“demonstrated an inadequate capacity to solve the problems of child abuse on her own or with the
assistance of the [DHHR].” This is largely because of petitioner’s lack of acknowledgment of her
problems, and refusal to follow through with a reasonable family case plan or other rehabilitative
efforts. Indeed, petitioner still refuses to acknowledge the conditions of abuse and neglect below
by asserting on appeal that she did not abuse or neglect the children. Additionally, petitioner failed
to successfully follow through with rehabilitative services designed to correct those conditions.
Indeed, the circuit court found that this was “evidenced by her failure to complete [three] separate
long-term drug treatment programs.” While it may be true that petitioner is now attempting to
acknowledge struggling with substance abuse and argues she has “maintained her sobriety since
the disposition[al] hearing,” she previously flatly denied such abuse and claimed she was unfairly
discharged from multiple long-term treatment programs, even when confronted with positive drug
screens. Indeed, petitioner showed a blatant disregard for rehabilitative services altogether when
she threatened other residents, acted out in meetings, refused to participate in chores, and was
argumentative with the program staff during at least one of the treatment programs.

        Next, petitioner alleges that the circuit court should have imposed a less-restrictive
dispositional alternative pursuant to West Virginia Code § 49-4-604(b)(5) (2019) 7; however, the
same evidence set forth above supports the termination of petitioner’s parental rights. West
Virginia Code § 49-4-604(b)(6) (2019) permits a circuit court 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 welfare of the
children.

       With these parameters in mind, the record clearly supports the circuit court’s finding that
there was no reasonable likelihood petitioner could substantially correct the conditions of neglect,
given her untreated drug addiction and failure to acknowledge her addiction or complete long-term
treatment. While it is true that petitioner may be able to undergo some treatment in the future for
her substance abuse, such possible improvement was based on pure speculation. Indeed, petitioner
denied that she had a substance abuse problem on several occasions and claimed she was unfairly
discharged from multiple programs. Despite this, petitioner claims that she should have been
granted a less-restrictive disposition because she might eventually be able to correct the conditions
of abuse and neglect, but we have previously held that “[c]ourts are not required to exhaust every


fact that no such improvement period was granted. For example, the circuit court found that
petitioner did not “successfully complete[] her improvement period or even substantially compl[y]
with it.” While petitioner is correct that the record shows that she was never granted an
improvement period, the fact that the circuit court nonetheless made findings that assumed such
an improvement period was granted does not entitle petitioner to relief on appeal. While the circuit
court was incorrect in regard to the context of petitioner’s noncompliance and failure to improve,
the fact remains that these findings were based on evidence of petitioner’s failure to comply with
the terms and conditions of her case plan. As such, any argument predicated upon the circuit court’s
mistaken representation that an improvement period was granted entitle petitioner to no relief.
        7
        Although the Legislature amended West Virginia Code § 49-4-604 effective June 5, 2020,
including renumbering the provisions, the amendments do not impact this case.
                                                    5
speculative possibility of parental improvement . . . where it appears that the welfare of the child
will be seriously threatened.” Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4, in part
(citation omitted). Further, we have held that

                “[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 (2019)] 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) (2019)] 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). Finally, regarding petitioner’s
argument that her parental rights to A.Y. should not have been terminated because the child
achieved permanency in the care of the nonabusing father, we have previously held that West
Virginia Code § 49-4-604 (2019) “permits the termination of one parent’s parental rights while
leaving the rights of the nonabusing parent completely intact, if the circumstances so warrant.” In
re Emily, 208 W. Va. 325, 344, 540 S.E.2d 542, 561 (2000). Further, “simply because one parent
has been found to be a fit and proper caretaker for [the] child does not automatically entitle the
child’s other parent to retain his/her parental rights if his/her conduct has endangered the child and
such conditions of abuse and/or neglect are not expected to improve.” Id. As such, it is clear that
the circuit court did not err in terminating petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 11, 2019, order is hereby affirmed.


                                                                                           Affirmed.
ISSUED: June 25, 2020

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




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