1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re J.S.

No. 18-0718 (Clay County 17-JA-53)



### MEMORANDUM DECISION

Petitioner Mother J.S., by counsel Kenneth St archer, appeals the Circuit Court of Clay County’s July 9, 2018, order termina ting her parental rights to J.S. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Le e Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Christopher C. McClung, filed a response on behalf of the child in support of the circuit court’s order. On appeal, petitioner argues that the circuit cour t erred in denying her an improvement period. 2

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 November of 2017, the DHHR filed a petitio n alleging that petitioner’s child was born drug exposed. According to the DHHR, both pe titioner and the child tested positive for methamphetamine at the time of the child’ s birth. Additionally, the DHHR alleged that petitioner’s parental rights to four other children were termin ated in January of 2016 due to

substance abuse issues. The circuit court held a preliminary hearing and found probable cause that imminent danger existed to the child. 3

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).

2 Petitioner asserts no assignment of error regarding the termina tion of her parental rights.

3 The preliminary hearing was held in Kana wha County after which the circuit court found that Clay County circuit court was the appropr iate forum and transfe rred the matter to that jurisdiction. 

### FILED
February 15, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 The circuit court held an ad judicatory hearing in Februa ry of 2018. Petitioner did not appear, but was represented by counsel. The DHHR presented evidence regarding adjudication.

Petitioner’s counsel moved to continue the hear ing on the basis that petitioner was ill and the circuit court granted the motion. Pe titioner failed to appear at the second adjudicatory hearing in April of 2018, but was represented by counsel. The circuit court reviewed the evidence presented at the prior hearing and adjudicate d petitioner as an abusing parent.

On May 21, 2018, the circuit court held a dispos itional hearing and pe titioner appeared in person and by counsel. The DHHR pres ented testimony that petitioner previously refused to drug screen and failed to contact the DHHR rega rding visitation with the child. The DHHR recommended termination of petitioner’s parent al rights. Petitioner testified that she was incarcerated for a misdemeanor petit larceny charge on May 3, 2018. Petitioner further admitted that she had not participated in any substance abuse treatment since the petition was filed. Ultimately, the circuit c ourt found that petitioner continued to abuse controlled substances and

failed to seek treatment for her addiction. Accordingly, the circu it court terminated petitioner’s parental rights on the basis that there was no reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect and that termination was necessary for

the welfare of the child. The circuit court memo rialized its decision in its July 9, 2018, order. Petitioner now appeals that order. 4

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 proceedings below.

On appeal, petitioner argues th at the circuit court erred in denying her motion for an improvement period. We find petitioner is entitl ed to no relief. West Virginia Code § 49-4-

4 The father’s parental rights were also te rminated. According to the parties, the permanency plan for the child is adop tion in her current foster placement.3 610(2) provides that a circuit court may gran t a post-adjudicatory improvement period when “[t]he respondent files a written motion requesting the improvement period” and “demonstrates, by clear and convincing evidence, that the respondent is likely to fully participate in the improvement period[.]” The decision to grant or deny an improvement period rests in the sound

discretion of the 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 disc retion in deciding whether to grant a parent an improvement period.”); 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 gran t an improvement period within the applicable statutory requirements . . . .”).

The circuit court did not err in denying peti tioner’s motion for an improvement period because petitioner did not prove by clear and convincing evidence that she would fully participate in an improvement period. It is cl ear from the record th at petitioner failed to participate in any services to remedy the conditi ons of abuse and neglect. These conditions were

the continuation of the circumstan ces which led to petitioner’s pr ior involuntary termination of parental rights to her older children. West Vi rginia Code § 49-4-604(b)(7)(C) provides that the DHHR is not required to make reasonable efforts wh en “[t]he parental ri ghts of the parent to

another child have been terminated involuntaril y.” Further, “the legislature has reduced the minimum threshold of evidence necessary for termination where one of the factors outlined in West Virginia Code § [ 49-4-605(a)] is present.” In re Kyiah P. , 213 W.Va. 424, 427, 582 S.E.2d 871, 874 (2003) (quoting Syl. Pt. 2, in part, In the Matter of George Glen B. , 205 W.Va. 435, 518 S.E.2d 863 (1999)). West Virginia Code § 49-4- 605(a)(3) includes the prior termination of a parent’s parental rights to anot her child as one of the above me ntioned factors. Petitioner made no substantial changes to her behavior on her own as evidenced by her continued substance abuse. Therefore, the circuit court did not abus e its discretion in denying petitioner’s motion for an improvement period as she failed to show that she would fully participate in that improvement period.

For the foregoing reasons, we find no error in the decision of the circuit court, and its July 9, 2018, order is hereby affirmed.

Affirmed.

ISSUED : February 15, 2019

CONCURRED IN BY :

Chief Justice Elizabeth D. Walker Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison