1 

### STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

In re J. C. and N.L.

No. 2 1

- 0 3 26 ( Harrison County 20

- JA

- 16

- 1 and 2 0

- JA

- 17

- 1 )



### MEMORANDUM DECISION

Petitioner Mother M.R.

, by counsel Jenna L. Robe y , appeal s the Circui t Court o f Harrison County’s March 25

, 20 2 1 , order terminating h er parental and c ustodial rights to N.L. and imposing a permanent legal guardianship for J.C

. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Pat rick Morrisey and Lee A

. Niezgoda , f iled a

respon se in support of the circui t court’s o rder

. The guardian ad litem

, Allison S. McClure

, filed

a response on the chil d ren ’s behalf in support of the circuit court’s order

. On appeal, petitioner

ar gues the circuit court erred in de n yin g h er motion for a post

- d ispositional improve ment period and terminati ng her parental and custodial rights to N.L. 2

Thi s Cour t has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and th e de cisional process would no t be si gnificantly aided by oral argument. Upon consideration of the standa rd of review, the bri efs, a nd the record present ed, the Court finds no substantial question of law and no prejudicial error. For these

reasons, a memora n d um decision affirm ing th e c ircuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

In January of 202 0 , t he DHHR filed a child abuse and neglect petition alleging t hat petitioner failed to adequately supervise t hen nine

- y e ar

- old J. C

. and two

- year

- old N.L.

, failed to provide suitable living conditi ons fo r the children

, and exposed the children to substance abuse

. The DHHR alle ged that d rug paraphernalia, broken glass, and garbage was strewn thr oughout

1 Con sis tent with o ur l ong

- stan d i ng practice in cases with sensi tive facts, we use initials where necessary to protect the identit i es of those involved in this ca se. See In re K.H.

, 2 35 W. Va . 254, 773 S .E.2d 2 0 (2015); Me linda H. v. Will iam R. II , 230 W. Va . 7 31, 742 S.E.2d 419 (2013); S tate v. Brandon B. , 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles
L. , 183 W. Va. 641, 3 98 S.E .2d 123 (1990).

2 Peti tioner assigns no error to the circuit court ’ s decision to impose a perm anent legal guardi anship for J.C ., in accordance with West Virgini a Code § 49

- 4

- 6 04( c)(5). 

### FILED November 8, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 petitioner ’ s h ome and t ha t steak kni v es were found on the floor in the master bedroom

. Petitioner admitted that she used Suboxone and “ unknown pills ” in the day s prior to the children ’ s removal and tested positive for am p hetamine, me thamphetamine

, and marijuana the day after t he c h ildren

were removed. The DHHR al leged that , during an interview with J. C

. , the chil d disclosed that petitioner “ hardly ever slept ” and that she witnessed domestic violence between petitioner an d the father of N.L. J. C . also discl osed t hat petitioner “ ke pt he r away ” fr om her fa t he r

. P etitioner waived her preliminary hearing. At the preliminary hearing, the circuit court re turned physical and legal custody of J. C . to her father

, who had been deemed a non

- off ending parent.

The DHHR filed an amended petitio n i n Feb ruary of 2020, a l leging that petitioner was scheduled to participate in seven random drug screenings after the filing of the initial petition. According to the DHHR, petitioner test ed positive for m ethamphetamine

, amph etamine

, and marijuana on four of t h ose drug screens an d missed the remaining three

.
The circuit court convened for an adjudicatory hearing in March of 2020, and petitioner stipulated to the allegations contained in the petition. The circuit court accepte d her stipu lation and adjudic ate d her as abusing paren t

. Petitioner mo ved for a post

- adjudi c atory improvement period, which was granted in June of 2020, without objection from the parties. A s terms of her improvement period, petitioner was ordered to parti cipate in r andom drug screeni ng, p arentin g

an d adu lt l i fe skills classes, s upervised visitation with the children , and substance abuse treatment. Additionally, petitioner was required to obtain and maintain stable housing and employment.

The circuit court held the f inal dispo sitional he ar ing in January o f 20 2 1. Petitioner moved for a post

- dispositional improvement period, a cknowledging the need for additional services to remedy the conditions of neglect and abuse and asserting that she experienced a substa ntial chang e in circumstances si nc e the granting o f he r post

- adjudicatory improvement period . The DHHR recommended that the circuit court terminate petitioner’s parental and custodial rights to N.L. and impose a permanent legal guardianship for J. C

. The DH HR presente d testimony fr om p et i tioner ’s servi ce p rovi ders and her DHHR case worker in support of its position. Petitioner also testified.

B ased on the evidence presented, the circuit court found t hat petitioner had not substantially complied with the terms of her p ost

- adjudicato ry i mpr ovement period

. The co urt found that petitioner missed twenty

- one random drug screens during her post

- adjud icatory improvement period

. Of the drug screens she participated in, petitioner p roduced only one negati ve result, wh ich was in September of 2 020. Pe titioner state d that s he did not have a substance abuse problem, but the circuit court considered that she had not been participating in random drug screening and found that the statement w as unsup ported. The co u rt found that petitione r did not con s ist e ntl y participate in her p arenting classes, not ing that pet itioner missed classes “ every oth er week or so ” and did not attend any classes in November of 2020. Nevertheless, petitioner completed the curriculum in Dec ember of 2020. In regard to supervised vis ita tion , t he circ uit cour t found that petitioner missed ten of forty

- four schedule d visitations with the children. N.L. was noted to “not respond well to having supervised visits ” with petitioner. He “ scream [ed] the entire drive to the vi sits if he [k new] he [was] going t o a visit ” a nd

exp erienced “extreme nightmares ” after visitation. However, petitioner and J. C

. “appear [ed] to3 b e bonded. ” The circuit court further found that petitioner did not have tra nsportation, independent hou sing, or em ployment at the ti me of the dis posi tional h earing.

The circuit court concluded that petitioner failed to prove by clear and convincing evidence that she was likel y to fully participate in the terms of a post

- disposi tional improvement period ba sed o n her failure to full y p articipate in the terms o f her post

- adjudicatory improvement

pe riod and her inability to show that she exp erienced a substantial change in c i rcumstances sinc e her post

- adjudica tory improvement period . The co urt reiterated that petitioner lost her housin g

a nd transporta tion during the i mprovement period, did not participate in drug screenings, and did not maintain contact with her DHHR case worker. Accordingly, the circuit court denied petitioner ’s moti on for a post

- dispositional improvement period.

Thoug h t he circuit court found th at petitioner had developed a bond with the J.C., it also found petitioner was unable to provide for the child ’ s needs. The circuit court ordered disposition

un der West Virginia Code § 49

- 4

- 604(c) ( 5) an d granted J.C

. ’ s father fu ll custody of the child. The co urt also granted peti tioner visitation with J.C. subject to the discretion of the child ’ s father because it found that visitat ion with petitioner was in t he child ’ s best interests. T h e ci rcuit co urt considered that petitioner wa s presen tly unable to provid e for the child ’s needs, but that the child exhibited a bond with petitioner.

In reg ard to N.L ., the court found th at h e was young and shared no bond with peti ti oner , based on his behavior befo re and a fter supervised visita tio ns. The circuit court conclu ded that petitioner had failed to f ully comply with her post

- adjudicatory im provement period and failed to full y remedy her sub stance abuse , and , ther efore, there was no rea sonable likelihood tha t the conditions of neglect an d a buse could be subst antially corrected in the near future. The c ourt further found that terminatio n of pe titioner ’s parental rights was nece ssary for N.L. ’s welfare and in his best inte rests. Petitioner now appeals the circu it court’s March 25 , 202 1

, ord er that denied her motion for a post

- dispositional improvement per iod, and terminated h er parental and

cust odial rights to N. L. 3

T he Court has previou sl y held :

“Although conclusions of law reached by a circu it cou rt are subject to d e

n ovo review, when an action, such as an a buse a nd neglect case, is tried upo n the f acts w itho ut a j ury, t h e circuit court shall make a d eter min ati on ba sed upon the evidenc e and shall make fin dings of fact and conclusions of law a s to w hether such child i s a bused or neglected. These fi ndings shall not b e set aside by a reviewing co urt unl ess cl earl y er ro neous. A finding is clearly e rroneous whe n, alt ho ugh there is evidence t o support the findin g, the reviewing court on the ent ire

3 J.C

. ’ s fa ther was deemed a non

- offend ing parent , and the permanency plan for J.C. is to

rema in in his care. N.L. ’ s fathe r ’ s parental right s were terminated during t he proceeding s. Th e permanenc y plan f or N.L. is adoption in his cu rrent placement.4 e videnc e is left with the def inite and firm convi ction th at a mistake has b een committ ed. Ho wever, a rev iewing cour t may not ov erturn a finding simply becau se it wo uld hav e d ec ide d the case different ly , and it must affi rm a finding if the circuit court ’s ac count of the evidence is pla usible in light of t he recor d viewed in its en tirety.” Sy l. Pt. 1, In In ter est of Tiff an y Ma rie S. , 196 W .Va. 223, 470 S.E.2d 1 77 (1996 ).

Sy l. Pt . 1

, In re Cecil T

., 22 8 W. Va. 89, 717 S.E .2d 873 (2011).

On appeal, pet itioner argues that the circui t c ourt erred in denying h er mo tion for a post

dispositional impro vement period. She asserts that she lost h er housing and transportation duri ng the proceedings and that , g iven more time, she could have corrected those conditi ons “ as she had already addres sed her substance abuse problem

. ” According to petitione r, these

a cknowledgements , c oupled with her tes ti mo ny that she would fully partici pate in an improvement period, satisfied her burden of proof , and the circuit court erre d in denying her motion. We fi nd petitioner is entitled to no relief on appeal.

West Virginia Code § 49

- 4

- 610(3) (B) requir es that , to b e grant ed a post

- dispositional impr ovemen t period

, a parent must “ demonstrate

, by clear and convincing evi dence

, that [ she] is likely to fully partic ipa te in t he improvement period

. ” Furt her, in circumstances where a parent was previously granted an improv ement period, the parent must p rove that “ since the initial improvement period, the [parent ] has exp erienced a s ubstant ial ch ange in circumstances ” a nd that due to the ch ange in ci rcu mstances , the parent “ is likely to fully participate in the im provement p eriod. ” W. V a. Code § 49

- 4

- 610( 3)(D ). “ We st Virginia law allows the circuit court discretion in deciding whether to g ra nt a parent an improvement per iod

. ” In re M.M. , 236 W. Va. 10 8, 115, 778 S.E.2d 338, 345 (2015)

.
Here, we find petitioner ’ s argument t o be un p ersuasive. The circuit cour t foun d that pet itioner failed to comply with the terms of her post

- adjudicatory imp rovement period, which is

comp ell ing evi dence when considerin g whether t o grant petitioner a sub sequent improvement period. Although peti tioner asserts that she “ addres s ed her substance abuse problem

, ” we note that there is no evidence to support this asse rtion in the record on appeal

. Ra ther, the record provides th at petitioner made similar assertio ns b elow

, and the circuit court found th at those assertions were not sup port ed by any evidence. Furth ermore, the circuit court found that petitioner failed to d emonstrate that she exp erience d a substantial c hange in circu mstances that rendered her likely t o fully participate in an improvement pe riod. Upon our review of the rec ord, we fi nd that the cir cuit court ’ s findings are not clearly erroneous and find no err or in its decision to deny pet iti oner ’ s motion for a post

- dis positional improvement period.

P etitioner also argues on app eal that the circuit co urt erred in terminat ing h er pa rental and custodial ri ghts to N.L. She b elieves that there was a reasonable l ik elihood that the conditions of neglect and abuse could be c orrected in the near future and tha t termination was not in the child ’ s bes t inter ests. Petitioner asserts that N.L. was in a stable fo ster placement , and petitioner

“ believe s she was compliant w ith s ervices. ” Therefore, she con cludes, the circuit court sh ould have imposed a less

- restrictiv e dispositional alternative, s uch a lega l guardianship pursuant to West Virg inia C ode § 49

- 4

- 604(c)( 5).5 P ursuant to West Virginia Code § 49

- 4

- 604(c)(6), a circ uit court may terminate a pare nt ’ s parental rights upon findi ng that “ there is no reasonabl e lik elihoo d that the conditions of neglect

o r abuse could be subst antially c orre cted i n the near future ” and that termination is ne cessary fo r the welfare of the ch ild. West Virginia Code § 4 9

- 4

- 60 4( d)(3) provides that there is no

reasona ble lik eli hood that th e c ond itions of negle ct or abuse could b e substant ially corrected when

[t] he abu sing parent or parents have not responded to or followed through with a

reason able family case plan or other re habilitative efforts of soci al, medical, mental health, or othe r reha bilitative agencies designed to re duce or prevent the abuse or neg lec t of th e child, as evidenced by the continuation or insubstantial diminution of condi tions which threatened the hea lth , welfare, or life of the ch ild

.

Here, petitioner failed to fo llow t hrough with a reasonable family ca se plan designed to prevent furt he r abuse and neglect of the child. As me ntioned above, the circuit court found that pet itioner failed to fully partic ipa te in the terms of her post

- adjudicatory improvement period and that she failed to remedy her substa nce abuse problem

. C ritically, peti tion er cit es to no evidence in the record to support her “ belie f ” that she was compliant with services , and n o evidenc e s upports that contention. Bec ause petitioner failed to follow th rough with a reasonable family case plan

, the circuit court did not err in f inding that there was no reasonable likelihood that the conditions of neglect or abu se could be subst antially corr ect ed in the near future. Moreo ver, N.L. would be exposed to petit ioner ’ s substance abuse if returned to h er care. Termination of petition er ’ s paren tal rights no t only protected N.L. from further ab use, but also provided perma nency for the child

. As the ci rcu it court noted, N.L. was a c hild of tender years, and this Cour t has held :

“ [ C ] ourts are not required t o exhaust every speculative poss ibi l ity of parental improvement . . . where it appears that the welfare of the child w ill be seriously threatened, an d t his is particularly applicabl e to children under the age of thre e years who are more susceptible to illn ess, need consistent close inter acti on wit h fully committed adults, and are likely to have their emotional and physica l development retarded by numer ous 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, S yl. P t . 4. Further, “ [e] nsuring finality for these children is vital to safeguardin g their best interests so that the y m ay have permanency and not be

con tinually shuttled from placemen t to placement.” In re Cesar L ., 221 W. Va. 249, 258, 654 S.E.2d 373, 38 2 (2 007). In contrast to J.C. , who had bonded with petitioner and the circuit court found that continued contact was in the child ’ s best interests, N .L . did not share a bond with petit ioner and did not benefit from visitatio n with her. Therefore, we agree with the c ircuit court that termination of petitioner ’ s parental rights was necessa ry for N.L. ’ s welfare

.
Finally, w e h ave held as follows:

“Termin ation of parental right s, the most drastic remedy under the statutory provi sion covering the disposition of neg lected children, [ West Virginia6 Code § 49

- 4

- 604] . . . may be employed without the use of intervening less restri cti ve alternatives when it is fo und that there is no reasona ble lik elihood under [ West Virginia Code § 49

- 4

- 604( d ) ] . . . that conditions o f 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 (19 80)

.
Syl. Pt. 5, In re Kristin Y. , 227 W. Va. 558, 712 S.E.2d 55 ( 2011). Becau se the record fully supports a finding that there was no rea sona ble li kelihood tha t the conditions of neglect and abuse c ould be substantial ly correct ed in the near future and t hat termination of petitioner ’ s paren tal and custodial rights was n ecessary for the welfare of N.L. , we find no er ror in the proceedings below . Pe titi oner i s entitled to no relief on appea l.

Fo r the forego ing reas ons, we find no error in the dec isi on of t he cir cuit court

, an d its March 25 , 2021 , o rder is h ereby affirmed.

Affirme d.

ISSUED : 

### November 8, 2021

CONCURRED IN BY :

Chief Justic e Evan H. Jenkins Justice Eli zabeth D. Walker Justice Tim Armste a d Justi c e John A. Hu tchison
J ustice William R. Wooton