1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re D.K. and N.K.

No. 18-0646 (Randolph County 2017-JA -064 and 2017-JA-065)



### MEMORANDUM DECISION

Petitioner Mother J.F., by counsel Melissa T. Roman, appeals the Circuit Court of Randolph County’s June 14, 2018, order terminati ng her parental rights to D.K. and N.K. 1 The West Virginia Department of Health and Hu man Resources (“DHHR”), by counsel S.L. Evans, filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), G. Phillip Davis, filed a response on be half of the children in support of the circuit court’s order. On appeal, petitioner argues that the circuit cour t erred 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

On August 25, 2017, the DHHR filed an abus e and neglect petition alleging that petitioner abused methamphetamine and was unabl e to provide proper care for the children. On August 23, 2017, a police officer responded to a ca ll from petitioner’s ne ighbor and found N.K. wandering in the yard. According to the officer, he remained at the scene with the child for fortyfive minutes. During that period, neither parent se arched for the two-year-old child. Additionally, the DHHR received a referral in July of 2017 that reported petitioner was under the influence of methamphetamine in the home while the children were there. At that time, the father was “passed out cold” and there were six other men in the home that were under the influence of methamphetamine. Upon investigation, a Child Protective Services (“ CPS”) worker observed very little furniture and little food in the hom e. The children were observed to be “unkempt, dirty,” and appeared to not have bathed in several days. The CPS worker observed that D.K. had knots in his hair from his hair not being combe d. She also observed that N.K.’s diaper was full and had not been changed in several hours. Pe titioner was interviewed by the CPS worker and admitted to a history of substance abuse, but denied that she was currently abusing any

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). 

### FILED

November 19, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 substances. However, petitioner told the CPS work er that she did not wa nt to voluntarily drug screen because “occasionally after she gets her bills paid up . . . she will go buy a bag of crystal meth.” Petitioner waived her preliminary hearing.

On October 3, 2017, the circuit court held an adjudicatory hearing during which petitioner stipulated to the allegations of abuse and neglect. Accordingly, petitioner was adjudicated as an abusing parent and was gran ted a post-adjudicatory improvement period. On November 14, 2017, the circuit court held a revi ew hearing. The DHHR re ported that petitioner had not been fully compliant with her post-ad judicatory improvement period and that they received a report that petitioner had recentl y overdosed. However, during a January 2, 2018, review hearing, the DHHR reported that petitione r was complying with the terms and conditions of her post-adjudicatory improvement period. On February 15, 2018, the circuit court held a review hearing and was advised that petitioner recently tested positive for substances. Nevertheless, the circuit court ordered that pe titioner’s improvement period continue under the previously ordered terms. On March 21, 2018, pe titioner failed to appear for the scheduled review hearing, but was represen ted by counsel. Petitioner’s counsel reported that she spoke to petitioner a few weeks prior, but that she did not know why petiti oner did not attend the hearing. The circuit court continued the hearing. Howeve r, petitioner also failed to appear for the rescheduled hearing on April 26, 2018. The circ uit court found that pe titioner failed to successfully complete her post-adjudicatory improvement period because she failed to submit to drug screens, participate in vi sitation, and participate in serv ices. The circuit court set the dispositional hearing, and on Ma y 14, 2018, the DHHR filed a moti on to terminate petitioner’s parental rights.

On May 21, 2018, the circuit court held a dispositional hearing. The DHHR presented evidence that petitioner tested positive for methamphetamine in February of 2018 and did not submit to any subsequent drug screens. Accord ing to petitioner’s test imony, she had not had a phone or transportation since Febr uary of 2018. However, the circ uit court noted that petitioner

testified that she had been in town for medical appointments after February of 2018, but made no

efforts to contact the DHHR. Petitioner had not visited the children since February of 2018. Petitioner testified at the dispositional hear ing that she recently acquired a cellphone and transportation. She further testified that she was living with family members, that they did not have utilities, but that they were working on remedying that issue. After considering the testimony, the circuit court f ound that petitioner was initia lly compliant with her postadjudicatory improvement period, but failed to cont act the DHHR or particip ate in services after February of 2018. The circuit court also found that petitioner was unwilling or unable to adequately provide for the children’s needs. The circuit court noted that petitioner did not have appropriate housing for the children and had not visited with them or drug screened in the preceding three months. Based on the evidence, the circuit court found no reasonable likelihood that petitioner could substantially correct the cond itions of abuse and neglect in the near future and that the termination of her parental rights was in the children’s best interests. Ultimately, the circuit court terminated petitioner’s pa rental rights in its June 14, 2018, order. 2 It is from this order that petit ioner appeals.

2 The father’s parental rights were also term inated below. The permanency plan for the children is adoption in their current foster placement.3 The Court has previously establishe d 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 sh all 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. Th ese findings shall not be set aside by a reviewing court unless cl early erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the revi ewing 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 diffe rently, 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, this Court finds no error in the pr oceedings below.

On appeal, petitioner argues that the circuit court erred in te rminating her parental rights. In support, she asserts that she was “entitled to a [post-]dispositional improvement period.” We find petitioner’s argument to be meritless. West Virginia Code § 49-4-6 10(3)(D) provides that a when a parent has previously been granted an improvement period, the parent must prove that “since the initial improvement pe riod, the [parent] has experien ced a substantial change in circumstances” and that “due to that change in circumstances, the [parent] is likely to fully participate in the improvement pe riod[.]” Additionally, we have st ated that “West Virginia law allows the circuit court discretion in deciding wh ether to grant a parent an improvement period.”

In re M.M. , 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015).

Although petitioner argues that she was entitled to a post- dispositional improvement period, the decision whether to gran t an improvement period at dispos ition rests solely within the

discretion of the circuit court. Petitioner initially complied with the terms and conditions of her post-adjudicatory improvement period. However, in February of 2018, petitioner tested positive for methamphetamine and stopped participating in se rvices and visits with the children. She also missed two review hearings. While petitioner argues that she was unable to participate in

services because she did not have transportation or a cellphone, th e record shows that petitioner traveled to Elkins, West Virgin ia, from her residence for medica l appointments. The record also shows that petitioner failed to contact the DHHR during that time . Further, petitioner did not provide any evidence of a change in her circumstances that demonstrated that she would be likely to participate in a post-dispositional impr ovement period and, therefore, she did not meet the applicable burden to receive one. As such, we find no error.

We also find no error in the circuit court’s termination of petitioner’s parental rights. Petitioner asserts that, during the proceedings, she took steps to address her parental deficiencies. We do not find this argument pe rsuasive. West Virginia Code § 49-4-604(b)(6) provides that4 circuit courts are to terminate pa rental 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 we lfare. West Virginia Code § 49-4-604(c)(3) provides that there is no reasonable likelihood th at the conditions of abuse and neglect can be substantially corrected when the abusing parent “ha[s] not responded to or followed through with a reasonable family case plan or other rehabilitativ e efforts of social, medical, mental health or other rehabilitative agencies designed to reduce or prevent the abuse or neglect of the child[.]”

As discussed, petitioner failed to substant ially comply with her post-adjudicatory improvement period. After a period of complian ce with the terms of the post-adjudicatory improvement period, petitioner tested positive fo r methamphetamine in February of 2018 and subsequently ceased her participation in drug scr eens, visits, and other services. Further, the record shows that petitioner was unable to prov ide an appropriate home for the children. Based on this evidence, the circuit court was correct in finding no reasonable likelihood that the conditions of abuse and neglect could be substantia lly corrected in the near future and that the termination of petitioner’s parent al rights was in the children’s best interests. While she also argues that the termination of her parental rights in this matter was premature, we have held as

follows:

“[C]ourts are not requir ed to exhaust every sp eculative possibility of parental improvement . . . where it appears that the welfare of the child will be seriously threatened, and this is particul arly applicable to children under the age of three years who are more susceptible to illness, need consistent close interaction with fully committed adults, and are likely to have their emotional and physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re
R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Cecil T. , 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt . 4. Because of their young ages and the unlikelihood of improvement by petitioner, te rmination of petitioner’s parental rights was necessary in order for the children to achie ve permanency in their foster home.

Moreover, although petitioner argues that the circuit court should have utilized a lessrestrictive dispositional altern ative, we have held that

“[t]ermination of parental rights, the most drastic remedy under the statutory provision covering the dispositi on of neglected children, W. Va. Code [§] 49-6-5 [now West Virginia Code § 49- 4-604] . . . may be employed without the use of intervening less re strictive alternatives when it is found that there is no reasonable likelihood under W. Va. Code [§ ] 49-6-5(b) [now West Virginia Code § 49-4-604(c)] . . . that conditions of ne glect 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 ). For these reasons, the termination of petitioner’s parental rights was appropriate.5 For the foregoing reasons, we find no error in the decision of the circuit court, and its June 14, 2018, dispositional order is hereby affirmed.

Affirmed.

ISSUED : November 19, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Paul T. Farrell sit ting by temporary assignment