1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re H.S.

No. 18-0681 (Putnam County 17-JA-82)



### MEMORANDUM DECISION

Petitioner Mother D.J., by counsel Shawn D. Bayliss, appeals the Circuit Court of Putnam County’s June 22, 2018, order terminating her parental, guardian ship, and custodial rights to H.S. 1 The West Virginia Department of H ealth and Human Resources (“DHHR”), by counsel S.L. Evans, filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Maggie J. K uhl, filed a response on behalf of th e children in support of the circuit court’s order. On appeal, petiti oner argues that the circuit court erred in denying her motion for a post-dispositional improvement period; terminat ing her parental, guardianship, and custodial rights; and in denying her motion for 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 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.

In September of 2017, the DHHR filed a peti tion alleging that petitioner’s substance abuse negatively affected her ability to pare nt the child. According to the DHHR, petitioner exposed the child to unsafe situ ations and environments and faile d to supply the child with the necessary food, clothing, shelte r, supervision, medical care, and education. The DHHR also alleged that petitioner and the father of the child were tran sient and their whereabouts were currently unknown. The DHHR indicat ed that the paternal grandm other had physical custody of the child, but neither parent had provided her with authority to seek medical treatment for the

child.

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 21, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 The circuit court held a preliminary heari ng in September of 2017. Petitioner did not appear, but was represented by counsel. The circ uit court determined th at petitioner was not properly served and rescheduled the preliminary hearing. Petit ioner did not appear for the subsequent preliminary hearing in November of 2017, but was repres ented by counsel. The circuit court found that petitione r was properly served by publica tion. The circuit court further found probable cause that the child was subjected to abuse and neglect and ordered that his physical and legal custody remain with the DHHR.

In December of 2017, the circuit court held an adjudicatory hearing and petitioner stipulated to the allegations of abuse and negl ect contained in the petition. The circuit court adjudicated petitioner as an abusing parent . Petitioner moved for a post-adjudicatory improvement period and offered to enter into inpatient substance abuse treatment in Virginia. The circuit court held petiti oner’s motion in abeyance, but ordered the DHHR to pay for petitioner’s inpatient treatment. The circuit court held a dispositio nal hearing in January of 2018, and petitioner renewed her motion for a post-adj udicatory improvement period. The circuit court granted petitioner’s motion and ordered that she comply with the DHHR’s family case plan. The circuit court further ordered pe titioner to participate in ra ndom drug screening, long-term inpatient substance abuse treatment, and outpati ent substance abuse treatment until long-term inpatient treatment was available.

In April of 2018, the circuit court held a review heari ng and the guardian moved to revoke petitioner’s improvement period. Petitione r did not appear for the hearing, but was represented by counsel. According to the guardia n, petitioner discontinue d her drug treatment and failed to communicate with the multidisciplin ary team (“MDT”). Ultimately, the circuit court found that petitioner failed to comply with the case plan and terminated petitioner’s postadjudicatory improvement period. The case was set for a dispositional hearing.

The circuit court held the final disposi tional hearing in June of 2017 and ordered petitioner to drug screen at the outset of the hearing. Petitioner tested positive for benzodiazepine and methadone and admitted to using both substances without a valid prescription for either. Petitioner moved for a post-dispositional improvem ent period. In support, petitioner proffered that she experienced a substantial change in circumstances on the basis that she had stable housing, employment, would soon have a motor ve hicle, and had rejoined a church. The DHHR and guardian moved to terminate petitioner’s parental rights.

Ultimately, the circuit court found that pe titioner failed to comply with her postadjudicatory improvement period. Further, the ci rcuit court found petitioner did not demonstrate a substantial change in circumst ances that rendered her likely to fully pa rticipate in a secondimprovement period. Accordingly, the circuit court denied petitioner’s motion for a postdispositional improvement period. Additionally, the circuit court found that petitioner habitually

abused controlled substances to the extent that her parenting was seriously impaired and had not followed through with the recommended and appropr iate treatment to improve her capacity for adequate parental functioning. Therefore, the circuit court conclude d that there was no reasonable likelihood that petitioner could substantially correct the conditions of abuse or neglect. The circuit court terminated petitioner’ s parental, guardianship, and custodial rights and3 denied her motion for post-termina tion visitation. The circuit court memorialized it s decision in its June 22, 2018, order. Petiti oner now appeals that order. 2

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 proceedings below.

On appeal, petitioner argues that the circu it court erred in denying her motion for a postdispositional improvement period because she experienced a substantial change in

circumstances. Petitioner assert s that she found employment, housi ng, and returned to church by the dispositional hearing and w ould soon have purchased a vehicl e for transportation. Petitioner

further asserts that a less-restri ctive disposition than terminati on of parental rights would have

been in the best interest of the child. We disagree.

West Virginia Code § 49-4- 610(3) provides that a circu it court may grant a postdispositional improvement period when “[t]he re spondent moves in writing for the improvement period” and “demonstrates, by clea r and convincing evidence, that the respondent is likely to fully participate in the improvement period[.] ” Further West Virginia Code § 49-4-610(3)(D) provides that, if a respondent was previously gr anted an improvement period, a respondent must “demonstrate[] that since the initial improveme nt period, the responde nt has experienced a substantial change in circumstances” and that “due to that change in circumstances, the respondent is likely to fully par ticipate in the improvement period[ .]” 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) (“It is within the court’s discretion to grant an improvement period within the app licable statutory requirements.”).

2 The father’s parental rights were also term inated below. According to the parties, the permanency plan for H.S. is adoption in his relative foster placement.4 The circuit court correctly denied peti tioner’s motion for a post-dispositional improvement period because petiti oner could not demonstrate that her change in circumstances made her likely to fully participate in an improv ement period. In her brief, petitioner admits that “there is without question an absence of [p etitioner’s] presence and pa rticipation during the pendency of her original improvement period[.]” Petitioner provides no excu se as to why she did not participate in the proceedings or case pl an. Additionally, although petitioner asserted multiple changes in her lifestyle, she does not ad dress how these changes impacted her ability to participate in an improvement period. Most con cerning, however, petitioner continued to abuse controlled substances throughout the proceedi ngs, as evidenced by her positive drug screen during the final dispositional hearing. Petitioner could show no change in her behavior since the filing of the petition. A ccordingly, we find no error in th e circuit court’s decision to deny petitioner’s motion for a post-di spositional improvement period.

Petitioner’s lack of progress also supports the termination of her parental, guardianship, and custodial rights to the child. West Virgin ia Code § 49-4-604(b)(6) provides that a circuit court may terminate parental rights upon findings th at “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 th e welfare of the children. West Virginia Code § 49-4-604(c)(1) provides that there is no reasonable likelihood th at the conditions of abuse and neglect can be substantially corrected when “[t]he abusing parent . . . [has] habitua lly abused or [is] addicted to alcohol, controlled substances or drugs, to the extent that prope r parenting skills have been seriously impaired and the person . . . [h as] not responded to or followed through the recommended and appropriate treatment[.]” Petitioner admitted that her substance abuse negatively affected her ability to parent. Yet, despite an attempt at substance abuse treatment, petitioner continued to abuse controlled substances . On appeal, petitioner declares that there is

no evidence that she cannot be su ccessfully rehabilitated into an effective parent. However, the record shows that petitioner refused to cooperate with rehabilitation. Fu rther, as petitioner’s substance abuse remained unchecked, the child would necessarily be exposed to continued neglect while in her care. It is against the child’s best interests to be cared for by a neglectful parent. 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). The record supports the circuit court’s findings that there was no reasonable likelihood petitioner c ould have remedied the conditions of abuse and neglect in the near future and that termination of her parental rights was in the best interest of the child. Accordingly, we find no error with the circuit court’s termination of petitioner’s parental, guardianship, and custodial rights.5 Finally, petitioner argues that the circu it court erred in denying her motion for posttermination visitation. Petitioner stresses that the allegations di d not involve “active abuse,” but rather passive abuse due to her substance abus e addiction and homelessn ess. Petitioner further asserts that the child has a strong emotional bond with her. In regard to post-termination visitation, we have pr eviously held that

the circuit court should consider wh ether a close emotional bond has been established between parent and child and th e child’s wishes, if he or she is of appropriate maturity to make such a reque st. 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. 8, In re Isaiah A. , in part, 228 W.Va. 176, 718 S.E.2d, 775 (2010). Further, “a close emotional bond generally takes several years to develop.” In re Alyssa W. , 217 W.Va. 707, 711, 619 S.E.2d 220, 224 (2005). Although petitioner assert s that she has a strong emotional bond with the child, she does not cite to the record in support. Rather, the record reflects that petitioner

left her child in the care of othe rs in order to pursue her addicti on and did not visit with the child during her improvement period. Additionally, petiti oner’s argument that she did not “actively”

abuse her child further underscores her lack of understanding of her conduct and its effect on the the child. West Virginia Code § 49-1-201 provides that a negl ected child is one “[w]hose physical or mental health is harmed or threatened by a present refusal, failure, or inability of the child’s parent, guardian or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care or education[.]” This code secti on does not differentiate between “active” and “passive” forms of abuse. Petitione r admitted that her substance abuse negatively affected her ability to parent he r child and that construes neglect under the West Virginia Code. Accordingly, we find no error in the circuit court’s denial of post-termination visitation.

For the foregoing reasons, we find no error in the decision of the circuit court, and its June 22, 2018, order is hereby affirmed.

Affirmed.

ISSUED : November 21, 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