1 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In Re: G.L., L.L., & A.L.

No. 13-0559 (Kanawha County 10-JA-100, 12-JA-92, & 12-JA-93)

MEMORANDUM DECISION

Petitioner Mother, by counsel Sandra K. Bull man, appeals the Circuit Court of Kanawha County’s April 26, 2013 order terminating her parent al rights to the children, G.L., L.L., and A.L. The West Virginia Department of Health a nd Human Resources (“DHHR”), by counsel Michael L. Jackson, filed its respons e in support of the circ uit court’s order. The gu ardian ad litem, Jason S. Lord, filed a response in support of the circuit court’s order. On appeal , petitioner alleges that the circuit court erred in terminating her pare ntal rights without gran ting her motion for a postadjudicatory improvement period.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the de cisional process would not be significantly aided by oral argument. Upon considerat ion of the standard of review , the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudici al error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

In June of 2010, the DHHR file d its initial petition alleging drug abuse by the parents after the child, G.L., called the police because he could not wake his parents. A ccording to the child, his father bought four pills and each parent t ook two, after which they passed out. Upon arriving at the home, paramedics found the parents uncons cious with several need les in the home. The petition referenced a prior abus e and neglect proceeding from 2007 and further alleged that the parents forced the children to shoplift and engage d in extensive domestic violence. A preliminary hearing was held that same mont h. The circuit court held an adj udicatory hearing in July of 2010, and found petitioner to be an abusing parent. Petitioner ther eafter filed a motion for a postadjudicatory improvement period, and the circuit court granted this moti on during a hearing in January of 2011. The circuit court ordered petitioner to (1) participate in pa renting and adult life skills education, (2) complete a substance abuse evaluation, (3) complete a psychological evaluation, (4) attend family counseling, (5) submit to random drug screens, (6) provide the DHHR with a family budget, and (7) partic ipate in supervised visitation.

During a review hearing in March of 2011, th e circuit court found that petitioner had substantially complied with the terms of her improvement period and continued the same. The circuit court returned the children to their pare nts’ physical custody. In July of 2011, the circuit court held an emergency hearing on a joint motion from the DHHR and the guardian ad litem 

### FILED

October 21, 2013
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 seeking removal of the children from petitioner’s care. The circuit court denied the motion. In September of 2011, during a review hearing, the circuit court returned L.L. and A.L. to petitioner’s legal custody and dismissed them from the proceedings. G. L. remained in the DHHR’s legal custody because of medical issues that required him to be in placement so as to

receive additional treatment. In March of 2012, the circuit cour t held a review hearing and continued petitioner’s improve ment period as to G.L.

In April of 2012, the DHHR filed an amended petition asking that L.L. and A.L. be removed from petitioner’s home following her incarceration for shoplifting, her admission to having smoked marijuana, and her failure to partic ipate in family therapy with G.L. Petitioner was incarcerated and waived the preliminary hearin g in May of 2012. In Augus t of 2012, the circuit court held an adjudicatory he aring, found the children to be abused and neglected, and found petitioner to be an abusing pa rent. Petitioner moved for a post-adjudicatory improvement period,

and the circuit court denied the motion at the dispositional hearing in November of 2011. The circuit court terminated petitioner’s parental ri ghts to all three children and awarded her posttermination visitation at the child ren’s discretion. It is from the order terminating her parental rights that peti tioner 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 shal l make a determination based upon the

evidence and shall make findi ngs of fact and conclusions of law as to whether such child is abused or neglected. These findi ngs shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the fi nding, the reviewing court on th e entire evidence is left

with the definite and firm conviction th at a mistake has been committed. However, a reviewing court may not overturn a fi nding 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 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, the Court finds no error in th e circuit court’s termination of petitioner’s parental rights without granti ng an additional improvement peri od. West Virgin ia Code § 49-6- 12(b)(2) grants circuit courts discretion in granting post-adjudicatory improvement periods upon a showing that the parent will fully participate in the same. The record in this matter supports the circuit court’s denial because of petitioner’s fa ilure to show, by clear and convincing evidence, that she would fully comply with the terms of a post-adjudicatory improvement period.

While it is true that petitioner previously participated in improvement periods and achieved reunification with L.L. and A.L., the r ecord also shows that petitioner failed to3 participate in family therapy with G.L. as directed. Further, the DHHR’s amended petition followed petitioner’s arrest and admission to dr ug abuse. These factors illustrate petitioner’s failure to fully comply with the terms of he r prior improvement period and support the circuit court’s denial of petitioner’s motion for a post-adjudicatory improvement period. We have previously held that “courts are not required to exhaust every speculative possibility of parental improvement before terminating parental rights . . . .” Syl. Pt. 4, in part, In re Kristin Y. , 227 W.Va. 558, 712 S.E.2d 55 (2011) (quoting Syl. Pt. 1, In re R.J.M. , 164 W.Va. 496, 266 S.E.2d 114 (1980)). For these reasons, the Court finds no e rror in the denial of petitioner’s motion for a post-adjudicatory improvement period.

As to termination of petitioner’s parental rights, the Court finds no error. The record contains substantial evidence in support of the ci rcuit court’s decision to terminate petitioner’s parental rights, including petitioner’s continued drug abuse, incarceration, and failure to comply with the terms of her improvement period. As the circuit court noted, petitioner “made only minimal efforts to rectify the circumstances that led to the filing of this [p]etition.” Based upon this evidence, the circuit court found that there was no reasonable likelihood that petitioner could substantially correct the conditions of abuse or neglect in th e near future and that termination was

in the children’s best interest. As set forth in We st Virginia Code § 49-6-5(b)(3), such conditions exist in situations where an abusing parent has fa iled to follow through with a family case plan or other rehabilitative efforts designed to reduce or pr event abuse. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts ar e instructed to terminate pare ntal rights upon these findings.

For the foregoing reasons, we find no error in th e decision of the circuit court and its April 26, 2013 order is hereby affirmed.

Affirmed.

ISSUED : October 21, 2013

CONCURRED IN BY :

Chief Justice Brent D. Benjamin

Justice Robin Jean Davis Justice Margaret L. Workman

Justice Menis E. Ketchum Justice Allen H. Loughry II