### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED

In re B.H. 

### June 11, 2018

EDYTHE NASH GAISER, CLERK No. 18-0127 (Randolph County 2017-JA-025) SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Mother M.H., by counsel David C. Fuellhart, appeals the Circuit Court of Randolph County’s January 19, 2018, order term inating her parental rights to B.H. 1 The West Virginia Department of Health and Huma n Resources (“DHHR”), by counsel Brandolyn N. Felton-Ernest, filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), G. Phillip Davis, filed a response on behalf of the child 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 and terminati ng her parental rights when less-restrictive dispositional alternativ es were available.

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.

On May 2, 2017, the DHHR filed an abuse and ne glect petition against petitioner and the father alleging that petitioner tested posit ive for buprenorphine, co mmonly referred to as Suboxone, upon the delivery of B.H. The DHHR allege d that B.H. suffered severe withdrawal symptoms including seizures, myoclonic jerks, loose stools, and sleeping less than two hours after feeding. He was transferre d to Ruby Memorial Hospital for further treatment. The petition further alleged that, although pe titioner had a prescription for Suboxone, she had a history of substance abuse. The petition alleged that the ch ild’s father was incarcerated on federal charges related to manufacturing methamphetamine.

The petition also alleged that abuse and ne glect proceedings involving petitioner’s three older children were initiated in 2012. During these proceedings, one of petitioner’s children was born addicted to cocaine and Suboxone, she was addicted to multiple substances, and abused

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).

1substances in front of the children. Her parent al rights to the three ch ildren were involuntarily terminated. In the instant petition, the DHHR allege d that it did not appear that the circumstances of abuse and neglect had change d since the filing of the petiti on in 2012. Petitioner waived the preliminary hearing.

On September 25, 2017, the circuit court held an adjudicatory hearing at which the father was adjudicated as an abusing parent. Petitioner reques ted a continuance, wh ich the circuit court granted. Thereafter, on November 28, 2017, petitioner stipulated to the allegations of abuse and neglect and was adjudicate d as an abusing parent.

On January 4, 2018, the circuit court held a dispositional hearing at which petitioner moved for a post-dispositional improvement period, which the circuit court ultimately denied. Both the guardian and the DHHR objected to pe titioner’s motion and moved for termination of petitioner’s parental rights. A nurse from Davis Me dical Center testified that petitioner and the child both tested positive for bupr enorphine at the child’s birth a nd that the child suffered from extreme withdrawal symptoms, including seizures . Next, the DHHR presented evidence that in June of 2017 and July 2017, petitioner repeatedly tested positive for buprenorphine, but failed to bring her prescription for Suboxone multiple times. The director also testified that, in addition to testing positive for buprenorphine, petitioner also tested positive for methamphetamine in August of 2017. According to the director, petitioner ad mitted to snorting methamphetamine three days prior to that drug screen. Petitioner continued to test positive for buprenorphine through December of 2017, but again, many times sh e did not present her prescription.

Next, a caseworker testified regarding the parent s’ visits with the child. She testified that petitioner consistently vis ited the child in June of 2017 and the fi rst part of July of 2017 and that petitioner arrived on ti me for visits when the father wa s in substance abuse treatment and transportation was arranged by the caseworker. Ho wever, according to th e caseworker, after the father was released from incarceration, and when he was not in treatment, he and petitioner

would often arrive late to visi ts or miss them altogether. The caseworker also explained that when the father attended visits with petitioner, she was more focused on him than she was on the child. The DHHR further presented testimony regard ing petitioner’s prior abuse and neglect case wherein she abused substances and gave birth to one child who was born addicted to substances. Petitioner was also using Suboxone throughout the prior proceedings. According to the DHHR, petitioner failed to successfully complete an imp rovement period and her pa rental rights to her

three children were invol untarily terminated.

Petitioner testified regarding he r addiction to substances and explained that she traveled to Maryland to see a doctor and obtain he r prescription for Suboxone. Petitioner denied any illegal use of substances. She also explained that she and the father missed visits in December of

2017 because there was a miscommunication and a cha nge in the caseworker that supervised the visits. Petitioner also testified that she allowed multiple individuals to stay in her home and that they brought drugs and needles into the home.

Following the parties’ testimony, the circuit court noted that petitioner used Suboxone throughout the proceedings and the prior abuse a nd neglect proceedings, but never attempted to complete a long-term rehabilita tion program or stop her use of Suboxone. The circuit court also

2noted that the evidence demonstrated that peti tioner’s circumstances had not changed since her prior termination. The circuit court found that there was no reasonable li kelihood that petitioner could correct the conditions of abuse and neglect , and specifically, the parents “don’t want to do

what is in the child’s best inte rest as to drug use” and lifestyle. In light of the child’s young age,

the circuit court found it was in his best interest s for petitioner’s and the father’s parental rights to be terminated. Ultimately, the circuit court terminated petitioner’s parental rights in its January 19, 2018, order. 2 It is from this order that petitioner appeals.

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 pr oceedings below.

First, petitioner argues that the circuit court erred in denying her motion for a postdispositional improvement period. In support of this argument, petitioner a sserts that her actions throughout the proceedings demonstrated by clear and convincing evidence that she would fully comply with a post-dispositional improvement pe riod. We do not find her arguments persuasive.

West Virginia Code § 49-4-604( b)(7)(C) states that “[f] or purposes of the court’s consideration of the disp osition custody of a child pursuant to this subsec tion, the [DHHR] is not required to make reasonable effort s to preserve the family if the court determines . . . [t]he parental rights of the parent to another child ha ve been terminated involuntarily[.]” Additionally, “West Virginia law allows the circuit court disc retion in deciding whether to grant a parent an improvement period.” In re M.M. , 236 W.Va. 108, 115, 778 S.E .2d 338, 345 (2015). Despite the fact that the DHHR was not requi red to provide services to pe titioner in thes e proceedings, petitioner received drug screening services and visitation with th e child. While petitioner argues that she consistently tested negative for substances other than those prescrib ed to her, the record shows that petitioner re peatedly failed to provide her prescription for Suboxone at drug screens. Further, petitioner admitted to snorting methamphetamine during the proceedings.

2 The father’s parental rights were also te rminated. According to the parties, the permanency plan for the child is a doption by his maternal grandmother.

3Also, petitioner argues that she attended “the vast majority of her scheduled visits” and

that her “active and consistent ” visitation showed that she wa s likely to participate in an improvement period. However, according to the reco rd, petitioner was often late to visits or missed them completely, especially when the fath er was with her. Accordingly, we find no error in the circuit court’s denial of petitioner’s mo tion for a post-dispositional improvement period.

Further, we find no error in the circuit court’ s termination of petiti oner’s parental rights. West Virginia Code § 49-4-604(b)(6 ) provides that circuit courts ar e to terminate parental rights upon findings that 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 the children’s welfare. West Virginia Code § 49-4-604(c)(3) provides that no reasonable likel ihood that the conditions of abuse or neglect can be substantially correct ed exists when “[t]he abusing parent . . . ha[s] not responded to or followed through with a reasonable family case plan or other rehabilitative efforts[.]”

As discussed above, although the DHHR was no t required to provide services, petitioner was afforded drug screening services and visitation. However, during the proceedings, petitioner admittedly snorted methamphetamine, failed to provide her prescriptions for Suboxone at numerous drug screens, was often late for visits, and missed visits with the child. Further, despite

the fact that her use of Suboxone caused the child severe withdr awal symptoms after his birth, petitioner did not take any steps to cease the use of this substan ce. While petitioner argues that the circuit court erred in terminating her parent al rights instead of em ploying a less-restrictive dispositional alternative such as guardianship with the maternal grandmother or participation in an improvement period, we have held that

“[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). Based on the evidence presented below, the circuit court found no reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near future, and that due to the child’s young age, termination of petitioner’s parental rights was in the child’s best interests. Accordingly, we find no error in the circuit cour t’s termination of petitioner’s parental rights.

For the foregoing reasons, we find no error in the decision of the circuit court, and its January 19, 2018, dispositional order is hereby affirmed.

Affirmed.

4ISSUED : June 11, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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