### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

FILED

In re T.S. and B.S. 

### October 12, 2018

EDYTHE NASH GAISER, CLERK No. 18-0319 (Webster County 17-JA-95 and 96) SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Mother F.W., by counsel Howard J. Blyler, appeals the Circuit Court of Webster County’s March 15, 2018, order terminati ng her parental rights to T.S. and B.S. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Mary Elizabeth Snead, filed a respon se on behalf of the children also in support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating her parental rights when she was taking st eps to correct the conditions of abuse.

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 2015, petitioner and the father were the subject of an abuse and neglect case that preceded the filing of the instant petition. The prior petition allege d that they were abusing and selling controlled substances in the presen ce of the children. Peti tioner was granted an improvement period, which she successfully completed, and she completed a long-term rehabilitation program. Ultimately, this prior pe tition against petitioner was dismissed in March
of 2016.

In November of 2017, the DHHR f iled the instant child abuse and neglect petition against petitioner and the father, alleging that they enga ged in domestic violence and substance abuse in the presence of the children. Acco rding to the petition, T.S. reporte d that his parents fought “all
the time” and that he did not like it. The child noted that sometimes he had to take his sibling into the bedroom to play so that they did not have to listen to the fighting. Child Protective Services (“CPS”) and law enforcement officers went to the parents’ residence and observed

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).

1holes in the walls and bedroom door. Further, the officers found a mortar and pestle, which petitioner admitted was for grinding marijuana, and a small bag of what petitioner reported to be “speed.” Thereafter, petitioner submitted to drug screens and tested positive for tetrahydrocannabinol (“THC”), amphetamines, opiates, methamphetamine, barbiturates, and Suboxone. Petitioner waived her preliminary hearing.

The circuit court held an adjudicatory h earing in December of 2017, wherein petitioner stipulated to the allega tions contained in the petition. The circuit court acce pted petitioner’s stipulation and adjudicated her as an abusing parent. Thereafter, petitioner voluntarily enrolled into a long-term rehabilitation program and reque sted a post-adjudicatory improvement period.

In February of 2018, the circuit court held a dispositional hearing. The DHHR presented the testimony of a CPS worker who testified that petitioner was part icipating in th e rehabilitation program and had tested negative for controlled substances while there. The worker stated that the DHHR recommended that petitioner be granted an improvement pe riod, should her probation not be revoked during a probation revocation hearing scheduled to be held the following week. 2

Petitioner then testified that she had enrolled in a rehabilitation program that was more intense than the program that she participated in during her prior case and stated that she enrolled in the more intense program because she knew she need ed help. She also testified that she would comply with any services offered if she were granted an improvement period. After hearing evidence, the circuit co urt found that there was no reasonabl e likelihood that petitioner would successfully complete an improvement period or correct the conditions of abuse in the near future and that the children deserved permanency in a safe and secure environment. As such, the circuit court denied peti tioner’s request for an improvement period and terminated her parental rights. It is from the March 15, 2018, dis positional order that petitioner appeals. 3

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

2 The record indicates that petitioner was placed on probati on following a conviction for possession with intent to distribu te. However, the record is not cl ear as to when this conviction occurred, whether it was related to the abus e and neglect proceedings, or how petitioner allegedly violated the terms of her probation.

3 The father’s parental rights were also terminated below. The children were placed in the home of relatives and the permanency pl an for the children is adoption therein.

2viewed 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).

On appeal, petitioner argues th at the circuit court erred in terminating her parental rights when she was working to correct the conditions of abuse, namely her substance abuse problem. According to petitioner, she su ccessfully completed an improve ment period in her prior abuse and neglect case and had that petition against her dismissed. In the instant case, petitioner voluntarily enrolled herself into a drug rehabil itation program and was working to correct the

conditions of abuse such that the DHHR reco mmended that she be granted an improvement period. Therefore, petitioner argue s that it was error to terminat e her parental rights without granting her an improvement period when she dem onstrated that she previously successfully completed one and when she was taking steps to co rrect the conditions of abuse and neglect. We disagree.

We have often noted that the decision to grant or deny an im provement period rests in the

sound discretion of th e 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 whether to grant a parent an improvement peri od.”); 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 gr ant an improvement period within the applicable statutory requirements.”). We have also held th at a parent’s “entitlement to an improvement period is conditioned upon the ability of the [par ent] to demonstrate ‘ by clear and convincing evidence, that the respondent is likely to full y participate in the impr ovement period . . . .’” In re Charity H. , 215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004).

While petitioner argues that she should have been granted an improvement period because she previously successfully completed one , we find her argument to be without merit. The record demonstrates that petitioner was the subject of a prior abuse and neglect proceeding
due to her substance abuse. Petitioner received services throughout her improvement period in that case, including substance abuse treatment, and ultimately had th e petition against her dismissed. However, petitioner reverted back to he r abusive behavior such that a second petition was filed against her the next year. Although petitioner enroll ed herself in an intensive rehabilitation program, we note that “it is possi ble for an individual to show ‘compliance with specific aspects of the case plan’ while failing ‘to improve . . . [the] overall attitude and approach to parenting.’” In the Interest of Carlita B. , 185 W.Va. 613, 626, 408 S.E.2d 365, 378 (1991) (quoting W.Va. Dep’t of Human Serv. v. Peggy F. , 184 W.Va. 60, 64, 399 S.E.2d 460, 464 (1990)). Moreover, we have previously held that “[i]n making the final disposition in a child abuse and neglect proceeding, the level of a parent ’s compliance with the terms and conditions of an improvement period is just one factor to be considered. The controllin g standard that governs any dispositional decision remains the best interests of the ch ild.” Syl. Pt. 4, In re B.H. , 233 W.Va. 57, 754 S.E.2d 743 (2014). Based on petitioner’s failure to demonstrate that she was likely to comply with an improvement period, we fi nd that she is entitled to no relief in this regard.

3Moreover, we find no error in the circuit court’s decision to terminate petitioner’s parental rights. West Virginia C ode § 49-4-604(b)(6) provides that circuit courts are to terminate parental rights upon findings that there is “no reasona ble likelihood that the conditions of neglect or abuse can be substantially corrected in the near future” and that termination is necessary for the children’s welfare. According to West Virg inia Code § 49-4-604(c)(1), a situation in which

there is no reasonable likelihood the conditions of abuse and neglect can be substantially
corrected includes one in which

[t]he abusing parent or pare nts have habitually abused or are addicted to alcohol, controlled substances or drugs, to the extent that proper parenting skills have been seriously impaired and the person or persons have not responded to or followed through the recommended and appropriate treatment which could have improved the capacity for adequate parental functioning[.]

As mentioned above, two separate child abuse a nd neglect proceedings were initiated against petitioner due to her substance abuse. Despite receiving services aimed at addressing her substance abuse problem, including the prior completion of a long-term substance abuse treatment program, petitioner ultimately returned to her abusive behavior and tested positive for a myriad of controlled substances the next year, according to the instant petition. While petitioner argues that her parental rights shou ld not have been terminated when she was attempting to correct the conditions of abuse by en rolling herself in a re habilitation program, we have previously held that “courts are not requi red to exhaust every sp eculative possibility of parental improvement . . . where it appears that the welfare of the child will be seriously
threatened. . . .” Cecil T. , 228 W.Va. at 89, 717 S.E.2d at 873, Syl. Pt. 4, in part (quoting Syl. Pt. 1, in part, In re R.J.M. , 164 W.Va. 496, 266 S.E.2d 114 (1980)). Moreover,

“[t]ermination 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). In light of petitioner’s failure to correct her substance abuse pr oblem despite receiving services to address the same, we find no error in the circuit court’s finding that there was no reasonable likeliho od that petitioner could correct the conditions of abuse in the near future and further find that termination was necessary for the children’s welfare. Accordingly, petitio ner is entitled to no relief in this regard.

For the foregoing reasons, we find no error in the decision of the circuit court, and its March 15, 2018, order is hereby affirmed.

Affirmed.

4ISSUED : October 12, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Paul T. Farrell sit ting by temporary assignment

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Allen H. Loughry II, suspende d and therefore not participating

5