1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re S.B. and L.B.

No. 18-0373 (Kanawha County 17-JA-504 and 505)



### MEMORANDUM DECISION

Petitioner Mother B.K., by counsel Sandra Bullman, appeals the Circuit Court of Kanawha County’s March 13, 2018, order terminati ng her parental rights to S.B. and L.B. 1 The West Virginia Department of Health and Hu man Resources (“DHHR”), by counsel S.L. Evans, filed a response in sup port of the circuit court’s order. The guardian ad li tem (“guardian”), Sharon K. Childers, filed a response on behalf of the children in support of the circuit court’s order. On appeal, petitioner argue s that the circuit court erred in terminating her parental rights before first granting her a post-adjudicato ry improvement period and by denying her posttermination visitation with the children.

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 November 15, 2017, the DHHR filed an ab use and neglect petition against petitioner alleging that she had an ongoing substance abuse problem. Acco rding to the DHHR, petitioner admitted to a Child Protective Services (“CPS”) worker that she used methamphetamine daily

and that she cared for her children while under the influence. She also admitted that she allowed

others who were under the influence to have contact with her children. The CPS worker witnessed multiple intoxicated people coming in and out of the home. Petitioner also allegedly sold the children’s belongings to support her drug habit. Petit ioner waived her preliminary hearing. Following the hearing, th e circuit court ordered the DHHR to provide services including a forensic parental fitness evaluation, parent ing and adult life skills sessions, random drug screens, and supervised visitation with th e children contingent upon clean drug screens.

Petitioner was also ordered to follow the tr eatment program and recommendations provided by Recovery Point, an inpatient subs tance abuse treatment facility.

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 On January 5, 2018, the circuit court held an adjudicatory hearing. According to the DHHR’s status summary, petition er had been difficult to cont act and was inconsistent in participating in services. The DHHR also noted th at petitioner signed he rself out of Recovery Point without completing the treatment program. Petit ioner stipulated to th e allegations of abuse and neglect, specifically, th at her addiction to substances negativ ely affected her ability to parent

her children. Petitioner moved for a post-adjudicatory improveme nt period, which the circuit

court denied.

On February 23, 2018, the circuit court held a dispositional heari ng. Petitioner did not attend the hearing, but was represented by c ounsel. The DHHR presented testimony that petitioner’s compliance with drug sc reens was inconsistent and that she often failed to call in to screen. Further, petitioner was unable to visit wi th her children during the proceedings due to her positive and missed drug screens. According to the DHHR, during a multidis ciplinary treatment team (“MDT”) meeting on February 7, 2018, petiti oner explained that she had not been drug screening because she did not have identification; however, she ha d taken no steps to obtain such identification. She also explained that she attend ed some parenting sessions, but her parenting services provider was not helpful because they “talked about stuff [petitioner] already [knew].” Further, she explained that sh e was not in drug treatment, but had weaned herself off of substances on her own. However, following the MDT meeting, petitioner screened positive for amphetamine, methamphetamine, and benzodiazepines. Petitioner’s psychological evaluation was admitted into evidence at the dispositio nal hearing. The evaluator provided a “poor” prognosis for being able to attain minimally ade quate parenting within the typical timeframe of an abuse and neglect proceeding.

In its dispositional order, the circuit court found that petitioner failed to participate in random drug screens and parenting and adult life skills sessions. It further found that petitioner “freely [acknowledged] her subs tance abuse problems,” but failed to complete a treatment program during the proceedings. The circuit c ourt also found that pe titioner did not have “consistent housing or financial stability.” Ultimately, 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 termination of petitioner’s parental rights was in the children’s best

interests. 2 Petitioner appeals the circuit court’s Ma rch 13, 2018, dispositional order terminating her parental rights. 3

The Court has previously established the follo wing standard of review in cases such as

this:

2 The father’s parental rights were also te rminated. According to the parties, the permanency plan for the children is a doption by their maternal grandparents.

3 Following the entry of the circuit court’s dispos itional order, petitione r filed a “motion to

reconsider” the termination of her parental rights. We note that pe titioner lacked standing to file a motion following disposition. Nevertheless, petitioner argued that, on the day of her dispositional hearing, she atte mpted to enter into a detoxification program. However, her drug screen on that day was positive for amphetamine and ecstasy. Additionally, according to the hospital records, petitioner was discharged from the hospital on the same day she was admitted without completing detoxification. The circ uit court ultimately denied her motion.3 “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).

First, petitioner argues th at the circuit court erred in terminating her parental rights without first granting her a pos t-adjudicatory improvement peri od. In support, petitioner argues that she “was not given the opportunity to partic ipate in the recommended services” and that she should have been given more time to improve. We do not find this argument persuasive. West Virginia Code § 49-4-610(2) pr ovides that a parent may be granted a post-adjudicatory improvement period when the parent “demonstrat es, by clear and convincing evidence that the [parent] is likely to fully participate in the impr ovement period.” Further, the decision to grant or deny an improvement period rests in the sound discretion of the circuit court. See In re: M.M.

, 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia law allows the circuit court discretion in deciding wh ether to grant a parent an improvement period.”); Syl. Pt. 6, in part, In

re Katie S. , 198 W.Va. 79, 479 S.E.2d 589 (1996) (“[i]t is within the court’s discretion to grant an improvement period within the a pplicable statutory requirements.”)

Here, petitioner was provided numerous serv ices, including drug sc reens and parenting and adult life skills sessions, but failed to fully participate. Petitioner argues that the children were placed with their grandpare nts and would not be harmed if she was given an opportunity to complete inpatient treatment and participate in a post-adjudicatory improvement period. However, during the proceedings, she was unable to visit with the children due to her positive and missed drug screens. Further, she openly ad mitted to having a substance abuse problem, but failed to complete treatment for her addiction. Wh ile she argues that she wa s seeking treatment at the time of the dispositional h earing, the record shows that sh e checked into the hospital for detoxification, but left that same day without completing treatment. Further, there is no evidence in the record that she sought any further treatm ent. Petitioner also argues that she demonstrated that she would comply with an improvement pe riod “by enrolling herself into several programs including an inpatient detoxifica tion program.” However, this asse rtion is not s upported by the record, and, again, petitioner failed to complete any treatment during the proceedings. Based on this evidence, petitioner did not prove by clear and convincing evidence that she would be likely to participate in a post-adjudicatory improveme nt period and, therefore, failed to meet the requisite burden to receive the same. Thus, the circuit court did not err in denying petitioner a post-adjudicatory improvement period prior to terminating her parental rights.4 The evidence discussed above also supports the termination of petitioner’s parental rights. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate parental rights upon findings that there is no reasonable likelihood the conditions of abuse and neglect can be substantially corr ected in the near future and wh en necessary for the children’s

welfare. West Virginia Code § 49-4-604(c)(3) clearly pr ovides that a situation in which there is

no reasonable likeli hood the conditions of ab use and 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.”

As discussed herein, petitioner failed to fully participate in parenting and adult life skills sessions and drug screens. Further, she failed to complete a treatment program during the proceedings and was unable to visit with the children due to missed and positive drug screens. Additionally, petitioner did not ob tain consistent housing or financial stability during the proceedings. Based on this evidence, it is clea r that there was no reasonable likelihood that petitioner could substantially corre ct the conditions of abuse and ne glect and that the termination of her parental rights was in th e children’s best interests. Ther efore, we find no error in the termination of petitioner’s parental rights.

Next, petitioner argues that the circuit court erred in denying her post-termination

visitation with the children because she has a cl ose bond with them. We disagree. We have held

that

“[w]hen parental rights are terminated due to neglect or abuse, the circuit court may nevertheless in appropriate cas es consider whether continued visitation

or other contact with the a busing parent is in the best interest of the child. Among other things, the circuit court should cons ider whether a close emotional bond has been established between parent and child a nd 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). Pe titioner was unable to visit with the children during the pro ceedings because of her positive and missed drug screens. Due to

her continued substance abuse issues and her failure to participate in treatment, it is clear that having visitation with petitioner is not in the childr en’s best interests. Therefore, the circuit court did not err in denying post-termination visitation.

For the foregoing reasons, we find no error in the decision of the circuit court, and its March 13, 2018, order is hereby affirmed.

Affirmed.

ISSUED : November 19, 20185 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