                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                    FILED
In Re: E.D. & D.M.                                                               April 13, 2015
                                                                              RORY L. PERRY II, CLERK
No. 14-1124 (Jackson County 13-JA-39 & 13-JA-40)                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Mother M.C., by counsel Susan A. Settle, appeals the Circuit Court of Jackson
County’s September 19, 2014, order terminating her parental rights to E.D. and D.M. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Katherine M.
Bond, filed its response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Erica Brannon Gunn, filed a response on behalf of the children supporting the
circuit court’s order. On appeal, petitioner alleges that the circuit court erred in finding that she
did not successfully complete her improvement period, in holding a single hearing to address
motions regarding her improvement period and termination of her parental rights, and in
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 April of 2013, petitioner was arrested for possession of materials consistent with the
manufacture of methamphetamine and held at the South Central Regional Jail. At this time, D.M.
resided with his father. Following petitioner’s arrest, E.D.’s grandmother sought and obtained
custody of him through family court, which referred the abuse and neglect allegations to the
Circuit Court of Jackson County. Thereafter, the circuit court directed the DHHR to investigate.
In June of 2013, the DHHR filed an abuse and neglect petition alleging that petitioner’s
substance abuse resulted in neglect. According to the petition, then-five-year-old E.D. was often
unsupervised because of petitioner’s substance abuse, with neighbors reporting that he would
wander alone outside during the day. The petition further alleged that E.D. was often truant.
Upon filing the petition, the DHHR obtained legal and physical custody of E.D., while D.M.
remained in his non-abusing father’s custody.

        In July of 2013, petitioner entered into a stipulated adjudication by admitting that her
substance abuse negatively affected her ability to parent the children and caused them to be
abused and neglected. Thereafter, petitioner was granted a post-adjudicatory improvement period
that was later extended. The improvement period’s terms included the following requirements
for petitioner: (1) complete a psychological and parental fitness evaluation and comply with the
terms thereof; (2) complete a twenty-eight-day substance abuse treatment program and comply

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with recommendations for further treatment; (3) comply with random drug testing; (4) attend at
least three Alcoholics Anonymous/Narcotics Anonymous meetings per week; (5) attend and
actively participate in individual therapy; (6) abstain from all alcohol and unprescribed drug use
and refrain from misusing any prescribed medications; (7) ensure there were no drugs, alcohol,
or other inappropriate things, people, or activities in the home and cease involvement with
inappropriate relationships and activities; (8) obtain reliable transportation; (9) maintain contact
with all service providers and her attorney; (10) comply with parenting services; (11)
demonstrate a financial ability to care for the children; and (12) obtain clean, healthy, and
appropriate housing.

        In June of 2014, the guardian filed a motion to suspend petitioner’s visitation with E.D.
and later filed motions to revoke her improvement period and terminate her parental rights.
These motions were based upon allegations that petitioner failed multiple drug screens, having
tested positive for marijuana and Suboxone, and was facing revocation from the day report
center where she received substance abuse treatment and submitted to drug screens. The DHHR
filed a similar motion the next month. That same month, the circuit court held the first of several
hearings on the motions to terminate that continued through August of 2014. The circuit court
heard testimony regarding petitioner’s failed drug screens and her failure to complete substance
abuse treatment. Jeanette Eastham, the case manager from the day report center, testified that
petitioner did not fully participate in the treatment program, was combative during treatment, and
bragged to others that she would not have to complete the program because her final court
hearing was scheduled to occur prior to the end of the program. Ultimately, in September of
2014, the circuit court entered a dispositional order finding that petitioner did not successfully
complete her improvement period and terminated her parental rights. Petitioner appeals from the
dispositional order.

       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). Upon our review, the Court finds
no error in the circuit court’s findings, the manner in which it held the dispositional hearing, or in
its termination of petitioner’s parental rights.



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        To begin, the Court finds no error in the circuit court’s finding that petitioner did not
successfully complete her improvement period. While petitioner argues that the circuit court’s
finding constitutes error because she substantially completed the majority of the numerous
requirements imposed, the Court disagrees. Petitioner’s argument on this issue minimizes her
continued drug abuse during the pendency of the proceedings below by arguing that the only
objective factor in finding that she failed to successfully complete her improvement period were
her failed drug screens. Contrary to petitioner’s argument that these failed screens were isolated
and not representative of her overall compliance with the terms of her improvement period, the
Court finds that this evidence appropriately supported the circuit court’s finding.

        The record is clear that the underlying conditions of abuse and neglect in the home were
caused by petitioner’s drug abuse. We have generally held that an improvement period
constitutes an opportunity for a parent to modify the behavior underlying the conditions of abuse
or neglect as alleged in a petition. See In re Emily, 208 W.Va. 325, 334, 540 S.E.2d 542, 551
(2000). Moreover, we have previously directed 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[ren].” Syllabus Point 6, In the Interest of Carlita B., 185 W.Va. 613,
       408 S.E.2d 365 (1991).

Syl. Pt. 4, In re Faith C., 226 W.Va. 188, 699 S.E.2d 730 (2010). Contrary to petitioner’s
argument that service providers testified that she engaged in services, the circuit court heard
testimony that petitioner did not fully participate in the substance abuse treatment program, was
combative during treatment, and bragged to others that she would not have to fully complete the
program. Based upon this evidence and our prior holdings, it is clear that the circuit court did not
err in finding that petitioner failed to successfully complete her improvement period because the
main condition of abuse and neglect, her drug abuse, persisted.

        Next, the Court finds no error in the manner in which the circuit court conducted the
dispositional hearing. Petitioner specifically argues that it was error for the circuit court to hold
combined hearings on the guardian’s and DHHR’s motions and disposition. While petitioner
argues that these combined hearings deprived her of notice that the circuit court was proceeding
to disposition or that the DHHR sought to terminate her parental rights to both children, we find
no error in this regard. Rule 31 of the West Virginia Rules of Procedure for Child Abuse and
Neglect Proceedings states that “[n]otice of the date, time, and place of the dispositional hearing
shall be given to all parties, their counsel, and persons entitled to notice and the right to be
heard.” The record is clear that both the DHHR and the guardian noticed petitioner of their intent
to seek termination of her parental rights to both children. Moreover, the circuit court held no
less than four hearings on the motions to revoke petitioner’s improvement period and to
terminate her parental rights, all of which petitioner and her counsel attended.




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        While petitioner argues that the manner in which these hearings were combined unfairly
prejudiced her ability to prepare and present evidence, the Court disagrees. The circuit court
specifically found that during these hearings “[a]ll parties were afforded the opportunity to
present evidence and testimony with respect to their relative positions on the motions to revoke
the improvement period[] . . . and to terminate the parental rights of [petitioner].” Further,
petitioner provides no additional evidence or how such further evidence would have impacted
the circuit court’s decision. Our review of the record shows that the circuit court properly
conducted multiple hearings on the issues of petitioner’s improvement period and the ultimate
disposition in regard to her parental rights. Further, it is clear that the same evidence supported
the circuit court’s decision with respect to both issues, and petitioner was free to present
evidence and argue in support of her proposed disposition. For these reasons, we find no error.

       Finally, the Court finds no error in regard to the circuit court terminating petitioner’s
parental rights to both children. While petitioner argues that termination was inappropriate
because it was not the least restrictive alternative, the Court finds that the circuit court properly
terminated petitioner’s parental rights upon a finding that she could not substantially correct the
conditions of abuse and neglect. Pursuant to West Virginia Code § 49-6-5(b)(3), a situation in
which there is no reasonable likelihood that the conditions of abuse or neglect can be
substantially corrected includes one in which

       [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.

The circuit court specifically made this finding in regard to petitioner, based upon the evidence
above related to her non-compliance with the terms of her improvement period and her failure to
correct the conditions of abuse and neglect created by her ongoing drug abuse.

         Contrary to petitioner’s argument that no evidence was submitted to establish why
termination of her parental rights was in the children’s best interests, the circuit court heard
substantial evidence in this regard, including the fact that petitioner could not properly parent the
children due to her drug abuse. Further, while petitioner argues that termination was not the least
restrictive alternative in regard to D.M. because the child resided with his father, the Court finds
no merit to this argument. We have previously held that West Virginia Code § 49-6-5 “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.

        In the instant case, the circumstances clearly warranted terminating petitioner’s parental
rights to both children. As noted above, the circuit court specifically found there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and

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neglect. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate
parental rights upon this finding. We have also held as follows:

               “Termination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49–6–5 . . . may be employed without the use of intervening less restrictive
       alternatives when it is found that there is no reasonable likelihood under W.
       Va.Code [§] 49–6–5(b) . . . 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). Because the circuit court
properly found that there was no reasonable likelihood that petitioner could substantially correct
the conditions of abuse and neglect, termination of her parental rights to both children was not
error.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
September 19, 2014, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: April 13, 2015

CONCURRED IN BY:

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




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