                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


In re C.W.-1 and C.W.-2
                                                                                        FILED
                                                                                     June 25, 2020
                                                                                   EDYTHE NASH GAISER, CLERK
No. 19-0694 (Webster County 17-JA-115 and 17-JA-116)                               SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA




                               MEMORANDUM DECISION



        Petitioner Mother M.W., by counsel Andrew Chattin, appeals the Circuit Court of Webster
County’s July 2, 2019, order terminating her custodial rights to C.W.-1 and C.W.-2. 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 and a supplemental appendix.
The guardian ad litem, Mary E. Snead, 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
custodial rights and denying her post-termination visitation.

       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 February of 2018, the DHHR filed an abuse and neglect petition against petitioner after
she was arrested for possession with intent to deliver methamphetamine and marijuana during a
traffic stop. The petition further alleged that DHHR workers went to petitioner’s home after a
referral of possible drug use and lack of appropriate housing. According to the petition, the DHHR
found the home to be unsuitable for habitation with incomplete walls, exposed wiring, and falling
ceiling tiles. The petition alleged that petitioner told the DHHR worker that she used marijuana for
years and she continued to use marijuana. The petition further alleged she tested positive for


       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). Additionally, because the children share the same initials, we will
refer to them as C.W.-1 and C.W.-2, respectively, throughout this memorandum decision.


                                                  1
marijuana and tramadol in separate drug screens and admitted that although she had custody of the
children, they had been living with their father for the last month while she attempted to find a
home. The DHHR alleged that petitioner sporadically lived with her mother but frequently moved
with the children and that these moves generally included different male companions.
Accordingly, the DHHR alleged that petitioner failed to maintain a stable, fit, and suitable home
for the children and was addicted and abused controlled substances which affected her ability to
parent.

        The circuit court held an adjudicatory hearing in March of 2018. The circuit court
considered petitioner’s admission to long term marijuana use, periods of homelessness, and her
arrest, where controlled substances and guns were found in the vehicle she was driving. The circuit
court found that these incidents demonstrated petitioner’s continued involvement with controlled
substances and adjudicated her as an abusing parent.

        In April of 2018, the circuit court held a hearing, but deferred ruling on petitioner’s motion
for an improvement period. In May of 2018, the DHHR requested a ruling on petitioner’s motion,
adding that petitioner had tested positive for marijuana twice that month. In July of 2018, the
circuit court issued an order stemming from the April of 2018 hearing, finding that petitioner was
“her own worst enemy” and had “been less than truthful.” Nevertheless, the circuit court found
that “based upon the evidence . . . the [c]ourt is not inclined to terminate parental rights at this
time” and granted petitioner a six month improvement period so she could have visitation with the
children. In granting the improvement period, the circuit court gave legal and physical care,
custody, and control of the children to their father, with whom the children had been living for
several months. The circuit court further laid out the terms and conditions of petitioner’s
improvement period, including that she was barred from consuming controlled substances, being
in the presence of anyone possessing or consuming controlled substances, and being in the
presence of anyone convicted of a felony offense, except while she was at a day report center.
Petitioner was also required to participate in outpatient drug treatment and counseling, and
complete parenting classes. Finally, the circuit court granted petitioner supervised visitation,
provided she complied with the terms and conditions of her improvement period.

        In August of 2018, the DHHR filed a motion to suspend petitioner’s visits, revoke her
improvement period, and terminate her parental rights. In support of its motion, the DHHR alleged
that at a multidisciplinary team meeting petitioner admitted to permitting a convicted felon into
her residence in violation of the terms and conditions of her improvement period. In October of
2018, the circuit court granted the DHHR’s motion to suspend petitioner’s visitation. In November
of 2018, the circuit court held a hearing on the DHHR’s motion to terminate petitioner’s parental
rights. The court agreed with the DHHR that “this case should have never gotten to this point” and
the “biggest problem in this case” was petitioner’s attitude. Specifically, the circuit court found
petitioner to be evasive and further found that she “skirts the issues.” The circuit court did not
revoke petitioner’s improvement period, but “only because the children have previously been
placed” with their father. Accordingly, the circuit court extended the original six month
improvement period for an additional three months, but ordered that petitioner’s visits remain
suspended, and that petitioner and the children undergo psychological evaluations.




                                                  2
         The circuit court held a hearing on petitioner’s motion to reinstate visits in February of
2019. The circuit court found that visits were “not to be considered for the best interests of the
parents,” but “for the best interests of the children” and denied petitioner’s motion. In May of
2019, the circuit court held a hearing and heard testimony from several witnesses, including a
DHHR worker, C.W.-1’s therapist, petitioner, and the children’s father. The father testified that
C.W.-1 had “real bad nightmares” after supervised visitation with petitioner. The therapist who
regularly saw C.W.-1 also testified that the child had “acting-out behaviors when she was seeing
[petitioner],” including “being angry, mad, feeling insecure” and that “those behaviors did
subside” when the child stopped seeing petitioner. Further, the therapist testified that C.W.-1 felt
“safe and secure” with her father, “d[id not] want to leave that environment” and that reinstituting
visitation with petitioner was not in the children’s best interest.

        The circuit court found it was “of the opinion of one thing with certainty, [namely], the
children are doing well since being placed with their natural father.” Specifically, the circuit court
found that C.W.-1 had “improved since [petitioner’s] visits were suspended . . . because of the
mother’s conduct.” The circuit court further found that although petitioner “had recent
improvement and it appears that she will complete her improvement period,” it was “not bound to
return custody of a child upon completion of an improvement period.” Based on the evidence
presented, the circuit court terminated petitioner’s custodial rights and set a further hearing
regarding visitation. In June of 2019, the circuit court held a final dispositional hearing and found
that “visitation is for the benefit of the children, not the parents.” The circuit court further found
that although petitioner completed her improvement period, C.W.-1 “expressed that she wanted
safety” and that petitioner’s conduct “jeopardized the safety of the children and clearly traumatized
[the child].” Additionally, the court found C.W.-2 was “a young child and has not seen [petitioner]
since November [of 2018] due to [petitioner’s] conduct” and that it was “contrary to the best
interests of the children to grant visits.” Accordingly, the circuit court denied petitioner post-
termination visitation. 2 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).



       2
        According to the parties, the children have achieved permanency by being placed in the
custody of their nonabusing father.
                                                  3
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 custodial rights
because she substantially complied with her improvement period and corrected the conditions of
abuse and neglect. According to petitioner, the “two main allegations” that needed to be corrected
were her substance abuse and her failure to maintain a fit and suitable home. This argument,
however, not only misstates the record but also ignores her required compliance with all of the
terms of her improvement period.

         When petitioner was granted an improvement period in July of 2018, she agreed that she
was barred from having any contact with a convicted felon, other than at a day report center, as
one of the conditions of her improvement period. In August of 2018, however, the DHHR filed its
first motion to revoke petitioner’s improvement period and terminate her parental rights, in part,
because she admitted at a multidisciplinary team meeting to allowing a felon—convicted for
operating or attempting to operate a clandestine drug lab—inside her apartment. Additionally,
petitioner admits she made an inappropriate remark about the children’s stepmother during a visit
with the children. Although the circuit court allowed petitioner to continue in her improvement
period, it suspended her visitation with the children and found at a hearing that “this case should
have never gotten to this point” and the “biggest problem” was petitioner’s attitude, finding that
she was evasive and “skirts the issues.” Finally, the circuit court decided it would not revoke
petitioner’s improvement period but “only because the children have previously been placed” with
their father.

        Despite all this, petitioner argues that she remedied the main conditions of abuse and
neglect and complied with many of the terms of her improvement period. While petitioner is
correct that the record shows that she was, at times, compliant with the terms of her improvement
period and that the circuit court permitted the improvement period to continue after multiple
review hearings, she ignores the fact that her compliance was sporadic and she misrepresented
herself to the DHHR and the circuit court on several occasions. As such, the record is clear that
despite several continuances of her improvement period, petitioner failed to maintain her
compliance throughout the proceedings. As this Court has held,

       “[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.” Syllabus point 6, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365
       (1991).

Syl. Pt. 3, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). In short, petitioner’s assertion
that she substantially complied with the improvement period ignores the fact that her lack of candor
and ability to comply with all of its terms were not remedied sufficiently to justify the return of
the children to her care.




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        Next, petitioner argues that the termination of her custodial rights erroneously relied on
two main arguments put forth by the DHHR: (1) that petitioner had not seen her children in several
months and (2) that psychological and counseling evaluations of C.W.-1 supported termination.
Petitioner argues it was “disingenuous” for the circuit court to consider that petitioner had not seen
the children in several months when the circuit court suspended her visitation in October of 2018.
Petitioner argues that the reasoning of the circuit court was insufficient to suspend visitation and
relied on “one inappropriate remark concerning the child’s stepmother” and “the presence of a
classmate of her day report center program for a few minutes at her apartment.” Further, petitioner
argues the circuit court and DHHR erroneously relied upon the statements of C.W.-1, a four-year-
old child, that she “felt safe with her father and stepmother and that she no longer wanted to see
[petitioner].” Petitioner argues that the counselor admitted at the dispositional hearing that C.W.-
1 “had nothing bad to say about her mother.” Petitioner also argues that the father testified that “he
was against all contact of his children with their mother” and that the father’s opposition to
petitioner visiting the children exerted “undue influence” on C.W.-1 “to tell the counselor and
psychiatrist that she no longer wanted to see her mother.” Finally, petitioner argues it “should not
be left up to a four-year-old to determine whether or not she should live with or visit with her
mother in the future.” We find petitioner’s arguments unavailing.

        While petitioner is correct that she had not seen the children in several months prior to the
termination of her parental rights, she acknowledges this is because her visitation was suspended
due to noncompliance during her improvement period. Petitioner downplays the severity of her
noncompliance as a series of isolated incidents, but the circuit court was well within its discretion
to suspend her visitation due to noncompliance. The circuit court found petitioner’s noncompliance
was not merely isolated incidents as petitioner argues but reflected petitioner’s poor attitude and
lack of candor throughout the proceedings. Further, the circuit court was guided by the best
interests of the children in declining to reinstate visitation upon petitioner’s motion in February of
2019.

         Additionally, the circuit court properly considered the statements of the children’s
nonabusing father and therapist in reaching its decision to terminate petitioner’s custodial rights.
Petitioner is correct that the children’s father did testify at the dispositional hearing that he
disagreed with a recommendation for petitioner to begin therapeutic visits with C.W.-1. However,
the father testified that this was because the child “would have real bad nightmares,” describing
them further as “pretty, pretty bad.” When asked whether giving the counselor “leeway to stop
those visits” if the counselor felt it “wasn’t in [C.W.-1’s] best interest would ease your concerns,”
the father testified, “yes . . . to be honest with you.” The testimony with the father stopped there
and thus, while the father was concerned about petitioner receiving visitation, he did not entirely
oppose the idea of visitation during his testimony as petitioner argues. Further, the therapist
testified that she did not think visits were in the children’s best interests for the same reasons as
the nonabusing father. The therapist testified that C.W.-1 would act out and had poor behavior,
which ceased when petitioner’s visits with the children were suspended. Accordingly, the circuit
court properly considered these reactions and testimony when considering the best interests of the
children.

       Next, to the extent petitioner argues that she substantially complied with certain aspects of
her improvement period, we have held that “[i]n making the final disposition in a child abuse and

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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., 233 W. Va.
57, 754 S.E.2d 743 (2014). Additionally, “‘[i]n a contest involving the custody of an infant the
welfare of the child is the polar star by which the discretion of the court will be guided.’ Syl. Pt.
2, State ex rel. Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221 (1948).” Syl. Pt. 3, In re S.W.,
233 W. Va. 91, 755 S.E.2d 8 (2014). We note that, although petitioner complied with many
components of her family case plan, she failed to maintain compliance with all of the terms and
conditions of her improvement period. Moreover, C.W.-1’s severe behavioral problems lessened
after visits with petitioner stopped. The circuit court also found that C.W.-1 “expressed that she
wanted safety” and that petitioner’s conduct “jeopardized the safety of the children and clearly
traumatized [the child].” Finally, the circuit court considered that the children were doing well for
several months in the placement with their nonabusing father. For these reasons, we find no error
in the circuit court’s decision to terminate petitioner’s custodial rights as it is clear that there was
no reasonable likelihood that the conditions of abuse and neglect could be corrected in the near
future and termination of petitioner’s custodial rights was necessary for the welfare of the children.
Additionally, to the extent petitioner argues a less restrictive alternative should have been imposed,
we have long 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) 3] . . . 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. at 558, 712 S.E.2d at 55. As such, we find that the circuit
court did not err in terminating petitioner’s custodial rights.

         Finally, petitioner argues that the circuit court erred in denying her post-termination
visitation with the children because the circuit court “relied on statements which the child [C.W.-
1] made to her therapist to the effect that the child no longer wanted visitation with her mother.”
Petitioner further argues that the circuit court should not have considered the child’s wishes when
determining visitation because of her age. We find, however, that the circuit court did not consider
the child’s wishes in rendering this decision and, instead, considered the evidence regarding the
child’s best interests.

       As this Court has held,

               “[w]hen parental rights are terminated due to neglect or abuse, the circuit
       court may nevertheless in appropriate cases consider whether continued visitation
       or other contact with the abusing parent is in the best interest of the child. Among


       3
        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.
                                                   6
       other things, the circuit court should consider whether a close emotional bond has
       been established between parent and child and the child’s wishes, if he or she is of
       appropriate maturity to make such request. The evidence must indicate that such
       visitation or continued contact would not be detrimental to the child’s well being
       and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
       446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002). Contrary to petitioner’s
arguments, the decision about visitation was not predicated on the minor child’s wishes, but rather
the therapist’s recommendation for the child. The therapist had been working with C.W.-1 for
several months and had established rapport with her. The therapist testified that she made her
recommendations based almost entirely upon her interactions with the child and did not consider
much outside information, but was able to opine on the best interests of the child. Indeed, the
circuit court’s final order clearly states that post-termination visitation was denied because such
visitation would be inconsistent with the best interests of the children. This finding was based upon
ample evidence of petitioner’s detrimental impact upon the children, both while they were in her
custody and following visits during the proceedings. Given the circuit court’s detailed order on
appeal and its specific findings regarding the denial of post-termination visitation, we find that
petitioner is entitled to no relief on this issue.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its July
2, 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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