1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re P. T. and Z.J.

No. 22

- 0 1 73 ( Br axton County 21

- JA

- 35 and 21

- JA

- 36 )



### MEMORANDUM DECISION

Petitioner Mo ther A. K

. , by counsel Andrew C hattin , appeals the Circuit Court o f B rax ton County’s February 2 , 2022, order terminating her parental rights to P.T. and Z.J

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

and Lee Niezgoda , filed a response in support of the circuit court ’s ord er. The guardian ad litem, Mary Elizabeth Snead , filed a response on behalf of the child ren in support of the circuit court’s

order.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequate ly pre sented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial er ror. For the se

rea sons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

In July of 2021, the DHH R filed a petition alleging that petitioner ’ s substance a buse

resulted in her abuse and/or neg lec t o f the children. The petition al so noted that this was the second abuse and neglect proceeding against petitioner for these exact allegations, although she did regain custody of th e children at the conclus ion of th e prior proce eding. The following

mon th, pe titioner stipulated to driving while intoxi cated with Z.J. in the car and that she was in possession of multiple controlled substances at the time

. It was also noted that petitioner had

been released f rom jail on the DUI charge, but her bond was revo ked wh en she failed a drug

screen.

1 Consiste nt with our long

- standing practice in ca ses with sensitive fa cts, we use in itia ls 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, 7 42 S.E.2d 419 (2013); State v. Brandon B

. , 218 W. Va. 324, 62 4 S.E.2d 761 ( 2005 ); State v. Edward Charles

L. , 183 W. Va. 641, 398 S.E.2d 123 (1990). 

### FILED September 20, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 The court held the final dispositional hearing in November of 2021, during which petitioner requested an improvement period. According to pet itioner, she had enr olled in a long

term substance abuse treatment pr ogram se ver al weeks prior but left the program after only one day. Petitione r asked that she be permitted to enroll in another program during an improvement perio d. H o wever, petitioner was incarcerated at the time of the final hearing and admitted to a

DH HR emplo y ee th a t she was abusing drugs while in jail. Accordin g to the DHHR worker, petitioner failed to participate in service s during the proceedings and was “ in and out of jail. ”

The court then found that there was no reasonable likeliho od that petition er could sub st a ntiall y correct the conditions of abu se and neglect and that termination of her rights was in the

children ’ s best interests. Accordingly, the court terminated petitioner ’ s parental rights

. 2 It is from the dispositional order that petitioner appeals.

Th is Court has previously established 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 up on the

fac ts wit hout a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether

such child is abus ed or neglected. These findings shall not be set aside by a reviewing c ourt unles s c lea rly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire

evidence is left with the defini te and firm conviction that a mistake has been committed. However, a re viewing co urt ma y not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court’s account of the evidence is plausi ble in light of the record viewed in its entirety.” Syl. Pt. 1, In Inte rest of Ti ffa ny 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 that the court erred in terminating her parental rights upon finding that ther e was no reasonable lik eli hoo d that she could correct the conditions of abuse and neglect

. 3 We disagree. While it is true that petitioner testified that she sought to enter a se cond

2 The father’s rights were also terminated bel ow. The permanency plan for the children is adoption in their current placement

.

3 Petitioner also a rgues that it was e rror to term in ate her rights without granting her an improvement period . However, petitione r fails to pr ovide any relevant authority governing the granting of improvement periods, in contradictio n to R u le 10(c)(7) of the R u les of Appe l late

Procedure , wh ich re quire s th a t “ [t ]he brief must contain an argument exhibiting clearly the points

of

. . . law presented

. . . and citing th e authorities relied on

. ” Further, in an Administrative Order

entered December 10, 2012, Re: Filings That Do N ot Comply With t he Ru les of A ppel la te

P rocedure, the Court specifically cautioned that “[p]ursuant to Rule 10(j), failure to file a compliant brief ‘may result in the Supreme Court refusing to consider the case

. . . or imp osing

(continued . . . )3 treatment program , she ignores the fact that her substance abuse cont inued acro ss two abuse and

n egl ect proceedings and the fact that she voluntarily left her p rior treatment program after roughly one day. As such, it is clear that the court had ample evidence , including drug screen

resu lts and petitioner ’ s own admission to continued substanc e abuse, upo n w hich to find t hat there was no reasonable likelihood that petitioner could substantiall y correct the conditions of abuse and neglect at issue. See W. Va. Co de § 49

- 4

- 604( d )( 1 ) ( indicating that there is no

rea sonable likelihood conditions can be correcte d w hen the abus in g parent has “ habitually

abused or [is] addict ed to

. . . controlled substances or drugs ” ).

In short, the court made the findings required by West Virginia Code § 49

- 4

- 604(c)(6) to terminate p arental rights

. Further, w e have held as foll ows :

“Ter mina ti on of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, [West V irginia Code § 49

- 4

- 604] . . . may be employed without t he use of intervening less

restrictive alternatives wh en it is fou nd that there is no reasonable likelihood under [West Virginia Code § 49

- 4

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

can be su bstantially corrected.” Syllabus point 2, In re R.J.M.

, 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 5, In re Krist in Y

. , 227 W. Va. 558, 712 S.E.2d 55 (2011). Accordingly , we find no error in the termination of petitioner’s parental rights.

For the foregoing reasons, we find no error in the decisio n of the circuit court, and its February 2 , 2022, order is he reby aff irme d.

A ffirmed.

ISSUED : 

### September 20, 2022

CONCURRED IN BY :

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton Justice C. Haley Bunn

such other sanctions as the Court may deem appro priate.’ ” As s uch, we decline to address this
argument

.