### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED In re A.B. 

### February 23, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS No. 17-0891 (Roane County 16-JA-51) OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Mother, A.R., by counsel D. Kyle Moore, appeals the Circuit Court of Roane County’s September 5, 2017, order termin ating her parental rights to A.B. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Le e Niezgoda, filed a response in support of the circuit court’s orde r. The guardian ad litem (“guardian”), Erica Brannon Gunn, filed a response on behalf of the child in support of the circ uit court’s order. On appeal, petitioner argues that the circuit court er red in denying her motion for a post-adjudicatory improvement period and termin ating 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 December 1, 2016, the guardian for the child filed a petition alleging petitioner had a chronic substance abuse problem that impaired her ability to properly care for the child and previously led to the involuntary termination of her parental rights to two older children. The petition further alleged that petitioner received in patient drug treatment four times, but continued to abuse drugs, and that petiti oner was incarcerated in June of 2016 when she tested positive for methamphetamine in violation of her probation stemming from a child negl ect charge. Finally, the petition alleged that the child had been expo sed to domestic violence between his parents, with petitioner being the primary aggressor.

On December 6, 2016, the circuit court held a preliminary hearing. At that time, petitioner was in a residential drug treatment program in Beckley, West Virginia. The circuit court granted petitioner supervised visitation with the child, subject to petitioner completing the

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).

1residential drug treatment program, her particip ation in random drug screens, and approval by the child’s therapist. On January 30, 2017, the circuit court held an ad judicatory hearing. Petitioner stipulated to chroni c substance abuse and domestic violence between her and the child’s father. Accordingly, the circuit court adjudicated petitioner as an abusing parent.

On August 31, 2017, the circuit court held a dispositional heari ng wherein petitioner appeared by telephone. Petitioner admitted that she participated in services but only submitted to three drug screens during the pendency of the ca se. Petitioner blamed the DHHR for the delay in setting up drug screens, but also admitted that she failed to pr ovide the DHHR with her work schedule so that drug screens could be scheduled. She further admitted that of the three screens, one was positive for methamphetamine and that she had marijuana in her system at the time of the dispositional hearing. A casew orker testified that petitioner participated in parenting and adult life skills classes, but failed to comply with drug screens. The circuit court found that petitioner had a chronic drug abuse problem whic h led to the involuntary termination of her parental rights to two older child ren and that petitioner failed to respond to treatment efforts. The circuit court further cited petitioner’s psychol ogical examination, which found her prognosis for improved parenting to be “extremely poor to n onexistent.” Finally, the circuit court found no reasonable likelihood that petitioner could substa ntially correct the conditions of abuse and neglect in the near future and that termination wa s in the child’s best interests. Ultimately, the circuit court terminated her parental rights in its September 5, 2017, order. 2 It is from the dispositional order that petitioner appeals.

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, the Court finds no error in the proceedings below.

First, petitioner argues that the circuit court erred in denying her motion for a post

adjudicatory improvement period. Petitioner ar gues that the DHHR did not make reasonable

2 The father’s parental rights were also term inated. According to the guardian and the DHHR, the child is placed in a foster home with a permanency plan of adoption in that home.

2efforts to reunify her with her child as they delayed setting up drug screens and did not make efforts to place her and the child into any ther apy. Pursuant to West Virginia Code § 49-4

- 604(b)(7)(C), the DHHR was not requi red to make reasonable efforts to preserve the family due to the involuntary termination of petitioner’s parental rights to two older children. Nevertheless, the DHHR provided petitioner with services includ ing drug screens, visitation with the child, and parenting classes, with which pe titioner did not fully comply. Moreover, West Virginia Code § 49-4-610(2)(B) provides that in order to be gran ted a post-adjudicatory improvement period, the parent must “demonstrate[ ], by clear and convincing evidence, that the [parent] is likely to fully participate in the improvement period.”

Here, petitioner was offered services througho ut the proceedings, but failed to comply with consistent drug screens. Pe titioner attempted to blame the DHHR for the dela y in setting up drug screens, but also admitted at the dispositional hearing that she failed to give service providers her work schedule so that the screens could be set up. Despite having completed four drug treatment programs, petitioner admitted to having a positive drug screen for methamphetamine during the proceedings and admitted to having marijuana in her system on the day of the dispositional hearing. Due to her c ontinued drug use and failure to comply with services, petitioner failed to meet the burden to receive a post-adjudicatory improvement period. Therefore, we find no error in the circuit co urt’s denial of petitioner’s motion for a post

adjudicatory improvement period.

Next, petitioner argues that the circuit c ourt should have employed a less-restrictive alternative than termination of her parental rights because the DHHR did not make reasonable efforts to reunify her with her child. We di sagree. As noted above, the DHHR was not required to make reasonable efforts to preserve the fa mily under these circumstances. Further, West Virginia Code § 49-4-604(b)(6) provides that circ uit courts are 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 child’s welfare. West Virginia Code § 49-4-604(c)(3) provides that no reasonable likel ihood that the conditions of abuse or neglect can be substantially correct ed exists when “[t]he abusing parent . . . ha[s] not responded to or followed through with a reasonable family case plan or other rehabilitative efforts[.]”

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 [now West Virginia Code § 49-4- 604] . . . may be employed without the use of intervening less rest rictive 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).

3As discussed above, the DHHR provided petitioner services, although she failed to comply with consistent drug screens and cont inued to use drugs th roughout the proceedings. Further, due to her failure to drug screen, petitioner was unable to visit with the child. Ultimately, the circuit court found that termination of petitioner’s parental rights was the leastrestrictive disposition because there was no reasonable likelihood th at petitioner could correct the conditions of abuse and neglect in the near futu re and termination was necessary for the child’s welfare. West Virginia Code § 49-4-604(b)(6) pr ovides that circuit c ourts are to terminate parental rights upon such findings. Accordingly, we find no error in the circuit court’s decision to terminate petitione r’s parental rights.

For the foregoing reasons, we find no error in the decision of the circuit court, and its September 5, 2017, order is hereby affirmed.

Affirmed.

ISSUED : February 23, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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