1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re O.W.

No. 2 1

- 0 8 50 ( Randolph County 2 1

- JA

- 37 )



### MEMORANDUM DECISION

Petitioner Mother S.C.

, by counsel J. Brent Easton

, appeal s t he Circui t Co urt o f Randolph County’s Sept em b e r 20

, 20 2 1 , order terminating h er parental rights to O.W

. 1 The West Virginia Department of Health and Human Resources ( “DHHR”), by counsel Pat ri ck Morrisey and Gary

L. Michels , f iled a respon s e in suppo rt of t he c ircui t co urt’s o rde r

. The guardian ad l i te m , Heather M. Weese

, filed a response on the chil d ’s behalf in support of the circuit court’s orde r

. On appeal, petitioner argues that the circuit court abused its discretion in denying her motion for

a post

- adjudicatory improvement period and

, inst ead

, te rm inating her parental rights

.

Thi s Cou r t has considered the parties’ bri efs and t he r ecor d on appeal. The facts and legal

a rguments are adequately presented, and the decisi onal proce s s would no t be si gni fican tly aid ed

b y oral arg u ment. Upon considera tio n of the standa rd of review, th e bri e fs, a nd the record

present ed, the Cour t finds n o substa ntial question of law and no preju dicial error. For these

reasons, a memorand um dec ision affi r m ing th e c ir cuit cou rt’s order i s ap propriate u nder Rule 21

of the Rul es of Appellate Procedure.

In May of 2021, the DHHR filed a child abuse and neglect petitio n alleging that the

parent s ’ subst ance abus e n egatively affected the ir ability to paren t the child and that the pa rents relied on inappropriate caregivers to c are f or the child. The DHHR alleged that the parents were living in a home wi th seven other adults, w hich was strew n with refu se. The DHHR alle g ed that

the parents ’ room contained drug paraphernalia

, medication that was not pr escri bed to e ith er parent, and ma rijuana

. The DHHR noted that the parents ’ room , in partic ular

, was “ deplorable

and unsuitable for a child. ” The parents indicated that the then

- three

- month

- old child s l ept in a pack

- and

- play in the room . However, the pack

- and

- play wa s observed to be “ fu ll of it em s ” and

1 Con sis tent w ith our l o ng

- sta n d ing practice in cases wi th sens i tive facts, we use initials

wh ere neces sary to prot ect t he identi ti e s of those inv o l ve d in this cas e

. See In re K. H.

, 2 3 5 W

. V a

. 2 54, 773 S

. E

. 2d 2 0 (2015); Mel ind a H. v. Wi lliam R. II , 230 W. Va . 7 31, 742 S .E.2d 419 (2013) ; State v. Brandon B. , 218 W. Va. 324, 624 S.E.2d 761 (2005); St ate v. Ed ward Charles

L.

, 183 W. Va

. 6 41 , 3 98 S.E .2d 1 23 (1990). 

### FILED
March 9, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 there was no place for the child to sleep . The parents stated that the child was staying with a baby sitter at the time of the DHHR ’ s investigation but “ could not or would not ” provide th at

person ’ s name or contact information. The D HHR lat er d et e rm ined that th e individual supervising the child had her parental rights terminated to her own children. Following the

inves tigation of the home, t he parents submitted to a drug screen, and petitioner tested positive

for methamphetamine

, amphetamine

, a nd tetr a hydrocannabinol ( “ THC ” )

. P e titioner asserted that she relapsed “ around Easter

, ” approximately one month earlier. The DHHR also alleged that petitioner was a respondent in an abus e and neglect proceeding in 2020 and ultimately voluntarily relinqu ish ed her g uardianship rights to four o l der children as a result of those proceedings. Petitioner ’ s older children were placed with a family member

, and p etitioner was permitted vi sitat i on with those children provided she par ticipate d in random drug screen ing

. The DHHR reported that petitioner ’ s blood test resul ts were positive for methamphetamine on February 19, 2021, and March 17, 2021, and then pe titioner ceased her participati on in d r ug screens and vis itation with those older children. The DHHR also not ed that pet itioner submitted

to urin alysis d rug screens in tandem with the February of 2021 and March of 202 1 blood test

d rug scr eens

. P e titioner ’ s urin alysis drug screens returne d nega ti ve results, which caused the

DHHR to “ question the reliability and va lid ity ” of petitioner ’ s prior neg ative drug scre en results.

In July of 2021, the circuit cour t held an adjudica tory hearing. P e titioner did not appear, but counsel represented h er. Th e DHHR presented evidence consi stent with the allegations in the petiti on , but p etitioner presented no evidence

. The circuit court found t hat petitioner ’ s home was not suitable for the child, that petitioner had a history of subst ance abuse and had admitted t o

curr ent substance abuse, and that petitioner had a history of chil d n eglect that had not improved

since the most recent proceedings . The circuit court adj udicated petitioner as an a b using parent

and O.W. as a neglected child.

The circuit court held a final dispositional hearing in A ugust of 2021. Pe titioner moved

for a po st

- adjud i catory improveme nt period and testified t h at she would fully participate in

services. She further testified that she submit ted t o a few drug screen s “ randomly on [her] own ”

sinc e the inc eption of the se proceedings but acknowledged that she wa s n o t participating as

scheduled

. According to petitioner ’ s testimony, she last used methamphetamine one m onth prior

to the dispositional hearing

, but she denied using methamphetamine in February and March of

202 1. She testified that she start ed using meth am p h e tamine a fter O.W. was removed from her care. Finally, when petitioner was asked if she engaged in “ any abusive or neglectful behavior ” prior to the child ’ s removal, she a nswered

, “ no. ”

Ultimat ely, t he circuit court found that petitioner denied she ab u s e d or neglect ed O.W. The circuit court found that petitioner was adjudicated fo r abus ing and neglecting the child and failed to accept a ny responsibility for the conditions of abuse and negle ct. Th e c ircuit court also found that petitioner was involved i n a recent abuse and neglect action where she was eligible to
visit with her olde r children , but she failed to participate in requisite random drug screening or tested positive for controlled s ubstan ces when she tested so the visitations ceased . The court

fo u n d that since the filing of the petition

, petitioner pro duced only one sample for d rug testing

. Based on the foregoing, the circuit court denied petitioner ’s motion for a post

- adj udicatory improvement per iod. Further, the c irc uit court found that petiti on e r demonstrated an ina dequate capaci ty to solve the problems of abuse or negle ct on her own or with help . The court concluded3 that there was no reasonable lik elihood that the conditions of neglect or abuse could be

sub stanti all y corrected in the near fut ur e and that terminati on of petitioner ’s parental rights was necessary for the w elfare of the child. Accordingly, the circuit court terminated petit ioner ’s parental rights to the child by its September 20, 2021, order. P etitio ner now appeals that order. 2

T he Co urt ha s previ ou sly he ld :

“Although conclusions of l aw re ached by a circ u i t cou rt ar e subject to de

novo rev ie w, wh en an ac tion, suc h as an a buse a nd negle ct c ase , i s tried upo n the

f ac ts w ith o ut a j ur y, th e c ircuit court shall m a k e a determ in ation ba se d u pon th e evide nc e an d shall make fin dings of fact and conc lusions of law a s t o w hethe r such child is abused o r negle cte d. Th ese fi ndi n g s shall not b e set as id e by a

r ev iewing co u rt unl es s cl ear l y er r o ne ous. A f inding is clearly e r r o n eous when

, altho ugh t her e is e vidence t o su pp ort the findin g, the reviewing court on the entire

e v id enc e is left with the de finite a nd firm co nv i ct ion th at a mi stake has b een

comm it t e d. Ho w ev er, a rev i ewing co ur t may not o v er turn a f inding simply

becau s e i t would h av e dec ide d the case differe nt ly, an d it must affi rm a finding if

t he ci rcuit court’s a c c ou nt of th e evidence is pl ausible in ligh t o f t he recor d

v i e we d in its en tirety.” S y l . P t. 1, In In ter e st of Ti ff

an y M a rie S

. , 196 W .Va . 223,

470 S.E.2d 1 7 7 ( 1996).

Sy l. Pt . 1

, In re Cec il T

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

On appeal, petitio ner argues that the circuit court abused its discretion in denying h er motion for a post

- adj udicatory improvement period and

, i nst ead

, terminating her paren ta l rights.

Petiti oner asserts that she presented clear and convincing evidence that she wo uld fully participate in an improvement perio d through her testimony t hat she agreed to participate in

servi ces and several negati ve dru g s creens she submitted from No v e mber of 2020 to March of

2021 , although she also acknowledges tha t s he missed several app ointments to drug screen

, as well. She further empha size s that she w as willing to par ticipate in a substance abuse

re habilitation progra m an d made unilateral effor ts t o obtain housing , emp loymen t, and a GED. We find petitioner is enti tled to no relief on appeal

.

In ord e r to be g ranted a post

- adjudicator y improvement period un der Wes t Virg inia Cod e § 49

- 4

- 6 10(2)(B), the parent must f irst “ d emo nstrate [] , by clear and c o n vincing evidence, that

the [parent] is likely to fully participate in the improvement period and the co u rt furthe r makes a finding, on the record, of the terms o f the i mprovement per iod

. ” “ We st Virginia law allows the

c ircuit cou rt d iscretion in de cidi ng w hether to g ra nt a parent an impr o vement perio d

. ” In r e M.M. , 236 W. Va. 10 8, 115, 778 S.E.2d 33 8, 345 ( 2 015) ; see also In r e Tonjia M. , 21 2 W. Va.

2 The father ’ s paren ta l rights were also termi n ated below. According to the pa rties, the

permanenc y plan for the child is adoption i n h er curr ent placement.4 443, 448, 57 3 S.E.2d 354, 359 (2002 ) (holding that a circuit court has t he dis c ret ion to deny a

mo tion fo r a n impr ovemen t period when no improveme nt is l ikely).

Critically, t he c ircuit court found that petitioner failed to acknowledge the co n ditions o f abuse and neglect. T his C ourt has hel d that

[ i ]n or d er to remedy t he abuse and/o r ne glect problem, the pro bl e m must first be acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth of the basic alleg ation pertaining t o the all eged ab use and neglect or t he

perpetrat or of sai d abus e and neglect, results in mak ing the problem untreatabl e

a n d in making an improvement period an ex ercise in futility at the c hild’ s

expense.

In re Timber M. , 231 W. Va. 44, 5 5, 743 S.E.2d 352

, 363 (201 3) ( cit ation omitted ). Indeed, on appeal petitioner does not address her uneq uivoca l te stimony that she did n ot s ub ject O.W. to any abuse or neglect while the child was in her custody. Petitioner denied that she used

controlled substances whil e the child was in her care, despite blood test results that were pos itive

for methampheta mine o n tw o different occasions wh i l e she had custody of O.W

. Further, petitioner d enie d the deplora ble conditions of he r home , including the room where she and the child slept. Although petitioner ass erted that she would fully par ticipat e in an improvement period, it is clear from her t es t i mony t hat she f ailed to acknowledge the conditions of neglect and

abuse , and , th erefore, an improvement period would be futile. Therefore, we fin d the circ uit

court did not abuse its di scre tion in denying petitioner ’ s motion for a post

- adj udicatory imp ro v e ment p erio d.

Furthermore, we find no error in the circuit court ’ s te rmination of petitioner ’ s parenta l

r ights. P ur suant to West Vi r ginia Code § 4 9

- 4

- 604 ( c)(6)

, a circuit court may ter minate a parent ’ s

pare n ta l rights upon find ing t hat “ th ere is no re as o n a ble likelihood th a t the conditions of neglect

or abuse can be substant iall y correct e d in the nea r future ” and th at t ermination is n e cessary for

t h e welfa r e of t he child . West Virgin i a Code § 49

- 4

- 604(d) prov i des that t her e is no reasona ble

likelihood th a t the condition s of neg lect or ab use can be substantially corrected wh en the abusing

adult has “ demonstrated an inadequate capacity to solve the problems o f abuse or neglect on their own or with help. ” As set fo rth above, p etitioner ’ s failu re to acknowl ed g e the conditions of

abuse and neglect leaves no hope that she will improve the conditions of abuse and neglect. Petitioner does not challenge the circuit court ’ s finding that there was no reasonable li kelihood

th at the con d ition s could be corrected in t he n ear future , and we find no e rror in that finding upon

our review

. Finally,

“ [t] ermination of parental right s, the most drastic remedy under the statutory provision covering the disposition of neglected children

, [ West Vi r ginia Code § 49

- 4

- 604] . . . m ay b e employed without the use o f intervening less

restrictive alternatives when it is found that there is no reasona ble likelihood

under [ West Virginia Code § 49

- 4

- 604( d ) ] . . . th at conditions of neglect or abuse

can be sub s tantially corrected.” Syllabus p o i nt 2, In re R.J.M. , 164 W.Va . 496, 266 S.E.2d 114 (1980).5 Syl. Pt. 5, In re Kristin Y. , 227 W. Va. 558, 712 S.E.2d 55 (2011). The circuit court was well

within its discretion t o termi nate p etitioner ’ s par ental rights bas e d on the findings below.

Accor di n g ly, we find no error.

Fo r t he forego ing reas on s , we f ind no erro r in the de c isi on o f the cir cu it c ourt

, and its September 20

, 20 2 1 , o rder is h e reby affirmed.

Affirme d.

ISSUED : 

### March 9, 2022

CONCURRE D IN BY :

Chief Ju sti ce John A. Hutchison

Justi ce Eli zabeth D. W a l ker

Jus tice Tim Armstead

Justi ce William R. Wooton Justice Alan D. Moats sitting by tem porary assignment