                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                    FILED
In re C.T. and D.T.                                                              June 24, 2020
No. 20-0069 (Randolph County 18-JA-113 and 18-JA-114)                           EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION


        Petitioner Mother S.T., by counsel David C. Fuellhart III, appeals the Circuit Court of
Randolph County’s December 30, 2019, order terminating her parental rights to C.T. and D.T. 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, Heather
M. Weese, 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 in terminating her improvement period and 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 September of 2018, the DHHR filed an abuse and neglect petition based on petitioner’s
substance abuse. Specifically, the petition alleged that petitioner and the father were arrested after
law enforcement discovered drugs and drug paraphernalia in the home within reach of the children.
According to the petition, law enforcement discovered “scales and little bags containing a crushed
white substance,” pills lying on the floor, and a pipe on an entertainment center. Additionally, law
enforcement found “a needle on the ground loaded with a pink/orange colored liquid” in the yard
outside the home. The petition further alleged that the father was observed snorting heroin and
engaged in a physical altercation with law enforcement, in which petitioner attempted to intervene.
Petitioner thereafter waived her right to a preliminary hearing.


       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).


                                                  1
         In November of 2018, the circuit court held an adjudicatory hearing, during which
petitioner stipulated to the allegations against her. Later that month, the circuit court granted
petitioner a post-adjudicatory improvement period. The improvement period was reviewed at a
series of hearings over the following months and permitted to continue. Due to the parents’
compliance with the terms and conditions of their improvement period, the children were returned
to their care for a period of trial reunification in May of 2019. However, shortly after the children
were returned to their care, petitioner tested positive for methamphetamine. 2 Further, the father
had not submitted to a screen since June of 2019. As a result, the children were again removed
from petitioner’s care.

         Following the children’s removal from petitioner’s care, the DHHR resumed providing
petitioner with remedial services, including adult life skills and parent education and supervised
visits. According to the record, petitioner failed to consistently visit with the children. In November
of 2019, the circuit court held a hearing on the DHHR’s motion to terminate petitioner’s
improvement period, during which the DHHR presented evidence that petitioner failed multiple
drug screens between August of 2019 and October of 2019. The record shows that during this
period petitioner tested positive for methamphetamine, amphetamine, heroin, and fentanyl.
Additionally, petitioner failed to submit to drug screens after October of 2019. Further, a DHHR
employee testified that, although she participated in parenting and adult life skills education,
petitioner failed to consistently visit with the children. Petitioner testified and admitted to her
substance abuse, which she indicated was a result of depression caused by the second removal of
the children. Petitioner further moved for a post-dispositional improvement period and testified
that she would comply with the terms and conditions of another improvement period if one were
granted.

        Based on the evidence, the circuit court found that petitioner “admits that she had some
problems at times, but denies problems at other times.” Further, the circuit court found that after
the children’s second removal from her care, petitioner produced “a steady progression of positive
screens since then.” The circuit court further found that it made clear that the period between
September of 2019 and the November of 2019 hearing was to be used to evaluate petitioner’s
willingness to participate in an additional improvement period. Despite this opportunity, the circuit
court found that petitioner failed to submit to a drug screen since October of 2019 and produced
diluted screens prior to that. As such, the circuit court concluded that petitioner did not “take[]
advantage of the opportunities that were afforded to her.” Accordingly, the circuit court found that
petitioner’s improvement period was unsuccessful, terminated the post-adjudicatory improvement
period, and denied petitioner’s motion for a post-dispositional improvement period. The court then
scheduled a final dispositional hearing. However, before that hearing was convened, petitioner and
the father were arrested for possession of a “significant amount” of methamphetamine.




       2
         The record shows that the initial drug screen upon which the second removal of
petitioner’s children was predicated was later determined to be negative upon laboratory testing.
However, the record further shows that petitioner tested positive on four other screens following
the children’s removal, all of which were confirmed by laboratory testing.


                                                  2
        In December of 2019, the circuit court held the final dispositional hearing, at which time it
reiterated findings that petitioner was noncompliant with the terms and conditions of her
improvement period. According to the circuit court, petitioner was in a worse position following
the second removal of her children than she was when the case began. Accordingly, the circuit
court found that petitioner was unable or unwilling to provide for the children’s needs and that
termination of her parental rights was necessary for the children’s welfare. As such, the circuit
court terminated petitioner’s parental rights. 3 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 first argues that the circuit court erred in finding that she did not
successfully complete her post-adjudicatory improvement period because she substantially
complied with the terms and conditions thereof. We find petitioner’s argument unavailing. While
petitioner argues that she failed only four drug screens during the nine-month improvement period,
she ignores the fact that these failed screens all occurred between August of 2019 and October of
2019, a much smaller timeframe than the entirety of the improvement period. Petitioner also
disregards the fact that she stopped screening in October of 2019, thereby preluding any
determination as to whether she ceased abusing drugs after that time. It is true that the record shows
that petitioner was initially compliant with the terms and conditions of her improvement period.
What petitioner ignores, however, is that she was largely noncompliant for the last several months
of the improvement period, despite the fact that the circuit court clearly indicated to her that her
participation following a hearing in September of 2019 would be used to determine her ability to
comply with a further improvement period. As the circuit court found, petitioner failed to show
compliance during this period.




       3
       The father’s parental rights were also terminated below. Additionally, C.T.’s biological
mother’s parental rights were terminated in a prior proceeding. According to respondents, the
permanency plan for the children is adoption in the current foster home.
                                                  3
        Pursuant to West Virginia Code § 49-4-610(7), “[u]pon the motion by any party, the court
shall terminate any improvement period granted pursuant to this section when the court finds that
[the parent] has failed to fully participate in the terms of the improvement period.” Here, the record
overwhelmingly supports the circuit court’s findings related to petitioner’s failure to fully
participate in her improvement period and her ultimate failure to successfully complete the same.
Additionally, this Court has held that

               [a]t the conclusion of the improvement period, the court shall review the
       performance of the parents in attempting to attain the goals of the improvement
       period and shall, in the court’s discretion, determine whether the conditions of the
       improvement period have been satisfied and whether sufficient improvement has
       been made in the context of all the circumstances of the case to justify the return of
       the child.

Syl. Pt. 6, In Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991). Here, we find no abuse
of discretion in the circuit court’s determination that petitioner was unsuccessful in sufficiently
improving the conditions at issue. The children were twice removed due to petitioner’s substance
abuse, which not only continued after the second removal but resulted in petitioner’s arrest for
possession of methamphetamine. As such, petitioner is entitled to no relief in this regard.

         Finally, petitioner argues that the circuit court erred in terminating her parental rights
instead of imposing a less-restrictive dispositional alternative. Specifically, petitioner argues that
a legal guardianship under West Virginia Code § 49-4-604(b)(5) (2019) 4 would have been more
appropriate in this matter. According to that statute, a circuit court may temporarily commit a child
to the care, custody, and control of a legal guardian “[u]pon a finding that the abusing parent . . .
[is] presently unwilling or unable to provide adequately for the child’s needs.” Petitioner argues
that the circuit court made this finding below and, accordingly, should have imposed disposition
under this statute. We find, however, that the circuit court’s use of this specific language did not
restrict its ability to terminate petitioner’s parental rights under West Virginia Code § 49-4-
604(b)(6) (2019), especially considering the fact that it made findings that termination of
petitioner’s parental rights was in the children’s best interests.

        According to West Virginia Code § 49-4-604(b)(6) (2019), a circuit court may terminate
parental rights when it makes findings that there is no reasonable likelihood that the conditions of
abuse and neglect can be substantially corrected in the near future and that termination is necessary
for the children’s welfare. Further, West Virginia Code § 49-4-604(c)(1) (2019) provides that a
situation in which there is no reasonable likelihood the conditions of abuse and neglect can be
substantially corrected in the near future includes when

       [t]he abusing parent . . . [has] habitually abused or [is] addicted to alcohol,
       controlled substances or drugs, to the extent that proper parenting skills have been
       seriously impaired and the [parent has] not responded to or followed through the



       4
        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.
                                                  4
       recommended and appropriate treatment which could have improved the capacity
       for adequate parental functioning.

Here, the evidence established that petitioner’s continued substance abuse resulted in her inability
to adequately parent the children. Despite the specific language the circuit court used in its order,
it is clear that there was no reasonable likelihood petitioner could substantially correct the
conditions of abuse and neglect in the near future. Further, the circuit court specifically found that
termination of petitioner’s parental rights was “necess[ary] for the welfare and best interest of the
children,” given her inability to safely parent the children. The circuit court also found that “[a]
legal guardianship [would] not provide the children with stability or the best permanency” and
was, therefore, not in their best interests, while adoption with their current foster family was “the
most appropriate permanency plan to serve the best interests of the children.” As we have
previously held,

                “[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). As such, it is clear that the
circuit court was presented with sufficient evidence upon which to base termination, and we find
no error in this regard.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 30, 2019, order is hereby affirmed.


                                                                                           Affirmed.

ISSUED: June 24, 2020


CONCURRED IN BY:

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




                                                  5
