1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re L.M., M.M., A.M., and I.M.

No. 2 1

- 0 9 32 ( Kanawha County 20

- JA

- 380, 20

- JA

- 381, 20

- JA

- 382, and 20

- JA

- 383 )



### MEMORANDUM DECISION

Petitioner Mother J.M.

, by counsel Ed ward L. Bu llman

, appeal s t he Circui t Co urt o f

Kanawha County’s October 1 8

, 20 2 1 , order terminating h er parental rights to L.M., M.M., A.M.,

and I.M

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

counsel Pat ri ck Morrisey and Brittany Rye rs

- Hindbaugh , f iled a respon s e in suppo rt of t he

c ircui t co urt’s o rde r

. The guardian ad li te m ( “ guardian ” )

, Matthew Smith

, filed a response on the

chil d ren ’s behalf in support of the circuit court’s orde r

. On appeal, petitioner argues that the

circuit cour t e rred in terminating her pare ntal rights because she substantially c omplied with the terms of her improvement period.

Thi s Cou r t has considered the parties’ bri efs and t he r ecor d on appeal. The facts and legal

a rguments are adequately presented, and th e d ecisi onal proce s s would no t be si gni fican tly aid ed

b y ora l arg u ment. Upon consideratio n of the standa rd of review, th e bri e fs, a nd the record

present ed, the Cour t finds n o substa ntial question of law and no preju dicial error. For these

reasons, a memora nd u m dec ision affi r m ing th e c ir cuit cou rt’s order i s ap propr iate u nder Rule 21

of the Rul es of Appellate Procedure.

In Au gust of 2020, the DHHR filed a child abuse and neglect petition alleging that the children, ages eleven through fifteen , were living w i th the father when he disapp eared for

twenty

- four hour s and the individual left to care fo r the children was arrested on outstanding

warrants , leaving the children without an y adult supervision. The DHHR alleged that the family

had a length y history of C h i ld Protective Services ( “ CPS ” ) intervention. The petition referred to an incident one year p rior when then

- eleven

- year

- old A.M. was struck by a vehicle while playing

with friends while unsupervised . Petitioner was incarcerated at the time of the event a nd was

1 Con sis tent w ith ou r l o ng

- sta n d ing pract ice in cases wi th sens i tive facts, we use initials

wh ere neces sary to p rot ect t he identi ti e s of those in v o l ved in this cas e

. See In re K. H.

, 2 3 5 W

. V a

. 2 54, 773 S .E. 2d 2 0 (2015); Mel ind a H. v. Wi lliam R. II

, 230 W. Va . 7 31, 742 S .E.2d 419 (2013) ; State v. Brandon B. , 2 18 W

. Va. 324, 624 S.E.2d 761 (2005); St ate v. Ed ward Char les

L.

, 183 W. Va

. 6 4 1 , 3 98 S.E .2 d 1 23 (1990). 

### FILED
April 14, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 f u rlo ughed to see A.M. while he was in t he hospital

. However, while on furlough, petitioner stabbed the father with a screwdriver and struck I.M. She was arrested for domestic battery and felony child abuse. In the petition, t he DH HR alleged further in cide nt s of domestic violence,

inc lu din g an incident in 2011 when petitioner thr ew cinder bl ocks and r ocks at the children ’ s home while the children and the father were in side. The DHHR also alleged that petitio ner and

the father failed to provide the ch ild ren wi th necessary food , clothing, supervision , and hou sin g , which placed the children at risk of harm.

At a preliminary hearing in August of 2020, the DHHR prese nted evidence consistent

with the peti tion, which was not challenged by either parent. Th e c irc uit court rat ified the

removal of the child ren from the parents ’ custody. The circuit court ordered the DHHR to

p rovide reunific ation services to petitioner

.

The circuit court held an adjudicatory hearing in October of 2020 , during which t he DHHR pr ese nted e vid ence as to petitioner ’ s neglect of the children

. T he court als o heard testimony that petitioner was compliant in reu nification services thus far and p roduced four

consecutive negative drug screen results

. Petitioner presented no evidence and di d n ot con test the allegations . The circuit court found that th e parents en gaged in ongoing domes tic violence that impacted their ability to parent the children . The circuit court adjudicated the children as neglected children and petitioner as an abusing p are nt. Th ereafter, petitioner orally moved for a

post

- adj udicatory im provement pe riod, which the circuit cour t he ld in abe yance , awaiting a

written motion.

Petitioner filed a motion for an improvement period, which the circuit court addressed in

November of 20 2 0 , when t he cour t heard evidence that petitioner con tinued to be co mpli ant w ith all court ordered services, including testing negative for controlled substances. The DHHR

recommended t hat petitioner ’ s motion be granted. Following petitioner ’ s testim o ny in s upport of her motion, no part y objecte d. The circuit court granted her mot i on for an improvement period

and ordered that she participate in the fol low ing terms of her improvement period: indiv idualized parenting and adult life skills classes; rando m d rug s creeni ng ; supervised visitation with the children; and mental health treat men t.

I n F e bruary of 2021, the circuit court heard testimony that pe titioner continued to

substantial ly comply with the terms of her improvement period , and the court order e d that her

im provement period continue. Again, in May of 2021, the court heard te stimony t hat petitioner

was generally compliant with services. However, the DHHR presented testimo ny that petitioner was in a physical alter cation with M.M., during which she st ruck the ch ild in the hea d. Petitioner

also tested positive methamphetamine onc e in Febr uar y, after her improvement peri od was

con tinued. Following that positive result, petit ioner ’ s drug screen results were all negative. The

DHHR initia lly requested th a t the court s et the cas e for disposition but agreed to an exte nsion of petitione r ’ s im pro vem ent period if she agreed to participate in family therapy. Hearing no object ion , the circuit court granted petitioner a three

- month extension to her improveme nt pe r io d

upon her reque st.

The circuit court convened for a final review of petiti one r ’s impro vem ent period in August of 202 1

. The DHHR recommended that co ntinued services be order ed and that the case3 be set for disposition. It reported t hat petitioner threat e ne d to fi ght one of the children ’s foster

parents , wh ich necessitated investigatio n . The DHHR also reported that petitioner may have lost her employment and had not been in contact with services provider s “for multiple weeks. ” Additionally, t he court hear d t estimony fr om fifteen

- year

- old M.M

., who stated that she believed

it wa s in the children ’ s best interest to be returned to peti tioner ’s custody. She further testified that if p etitioner ’s parental ri ghts wer e terminated, t he children w ould want post

- ter m in ation

visit ation with her.

The circuit court held the final dispositio nal hearing in Oct ober of 2021 . Petitioner did not appear, but counsel represented her. A DHHR worker testified that petitioner was

“ nonresponsive ” to the DHHR ’ s a ttempts to contact h er , as well a s attemp ts by her service

pro viders

. She explained that she attempted to verif y petitioner ’ s current address but was unable

to do so

. T he evidence showed that p etitioner ha d failed to participate in random dr ug screening

s ince mid

- August of 2 0 20 and had no t atten ded a supervised visitation with the c hildren since July of 2020. The worker f urther testified that petitioner made threats to individuals involved in

the proceedings and threats to the children. According to t he DHHR worker, M.M. rece i ve d a picture of petitioner that dep icted her in “ poo r phy sical heal th

. ” M.M. se nt the pi cture to petiti oner and accused her of car ing more about abusing substances than her children and stated

that she “gave up ” on her children

. P eti tioner replied that s h e would “ beat [M.M. ’s] a** ” and called her vulgar names. Petitioner presente d no evidence and suggested no alternative to the

D HHR ’s recommendation to terminat e her parental rights.

Ultimately, the circuit court found that petitioner failed to remedy the co nditions th at gave rise to the petition. Fur ther, the co urt found that petitioner failed to meaningfully avail

herself of court ordered services and that there was no reasonable likelihood tha t the conditions of neglect or abuse could be substantially c o rr ected in th e near future. Finally, the court found

that termination of petitioner ’ s parental rights was the lea st restrictive dispositional alternative

and in the best interest of the children

. Accordingly, the circuit cou rt terminated petitioner’s

pare n ta l rights to the children by its October 1 8 , 2021, order. Petitioner now appeals th at order. 2

T he Co urt ha s previ ou sly he ld :

“Although conclusions of l aw re ached by a circ u i t cou rt ar e subject to de

novo rev ie w, wh en an ac tio n, su c h as an a buse a nd negle ct c ase , i s tried upo n the

f ac ts w i th o ut a j ur y, th e c ircuit court shall m a ke a determ in at ion ba se d u pon th e evide nc e an d shall make fin dings of fact and conc lusions of law a s t o w hethe r such child is abused o r negle cte d. Th ese fi nd i n g s s hall not b e set as id e by a

r ev iewing co u rt unl es s cl e ar l y er r o ne ous. A f inding is clearly e r r on eous when

, al tho ugh t her e is e vidence t o su pp ort the findin g, the reviewing court on the entire

e v id enc e is left with the de finite a nd firm co nv i ct ion th at a mi s take has b een

comm it t e d. Ho w ev er, a rev i ewing co ur t m ay not o v er turn a f inding simply

2 The father ’ s parental rights were al so terminated. According to the parties, the

perman ency pl an fo r the children i s legal guardi anship in their resp ecti v e placements.4 becau s e i t would h av e dec ide d the case differe nt ly, an d it must affi rm a finding if

t he ci rcuit court’s a c c ou nt of th e evidence is pl ausible in ligh t o f t he re cor d

v i e we d in its en tirety.” S y l . P t. 1, In In ter e st of Ti ff

an y M a rie S

. , 196 W .Va . 223,

470 S.E.2d 1 7 7 ( 1996).

Sy l. Pt . 1

, In re Cec il T

., 22 8 W. V a. 89, 717 S.E .2d 873 (2011).

On appeal, petitioner argues that the circuit court erred in terminating her p ar ent al right s because s he substantially compl ied with the terms of her improvement period and “ reached a

level o f functioning sufficient to care for her children. ” P e titioner asserts that she participate d in

services for ne arly o ne year and received go od re ports from her service providers. However, s he

c andidly admi ts that “ she had cea sed pa rticipating ” at the end of he r improvement peri od but argues that she had complied for a sufficient time “ to justify attempting to return t o compliance. ” We find petit i on er ’ s ar gume nt un persuasive.

P ur suant to West Vi r ginia Code § 4 9

- 4

- 604 ( c)(6)

, a circu it court may ter minate a pare nt ’ s

pare n ta l rights upon find ing t hat “ th ere is no re as on a ble likelihood th a t the conditions of negl ect
or abuse can be substant iall y cor r ec t e d in the nea r future ” and th at t ermination is n e cessary fo r

t h e welfa r e of t he child ren . West Virgin i a Code § 49

- 4

- 604(d) ( 3 ) prov i des that t her e is no

reasona ble lik elihood th a t the condition s of neg lect or ab use c an be substantially corrected wh en

[ t] he abusing parent or parents have not responded to or follow ed thr ough with a

reasonab le family case plan or other rehabilitative efforts of social, medical, mental health, or other rehabilitative agencies designed t o reduce or prevent the abuse or negl e ct of the chi ld, as evidenced by the continuation or insubstan tial

d iminution of conditi ons which threatened the heal th, welfare, or life of the child

.

Finally, this Court has held that “ [ i] n making the final disposi tion in a child abuse and neglect

pr o c ee ding, the l evel of a parent’ s compliance with the terms and conditions of an improveme nt period is just one f actor to be considered. The controlling standard that governs any dispositional

decision remains the best i nterests of the child [ren]

. ” Syl. Pt. 4, In re B.H. , 233 W. Va. 57, 754 S.E.2d 743 (2014).

Here, we agree with the circuit court ’ s determinati on that th ere was no reas onable

likelihood tha t the conditio ns of neglect or abuse could be subst antially corre cted in the near fu ture. W hile we ackn ow ledge petit ioner ’ s substantial pa rticipation in her family c ase plan, her

actions in t he final months of the procee dings are akin to casting off her parental responsibilities

and desert ing her children. It is unclea r what drove petitioner to cease any a nd al l cooper ation

with the DHHR , but the cause need not be i dentified. It is axiomatic th at a parent mus t be

involve d in the proceedings to be reunified with the ir children. Petitio ner was well aware of her

res ponsibi lity to participate in and c omplete he r f amily case plan

, but she made a choice to ignore that responsib ility. Simply put , the best inter ests of the children wo uld not be served in the placement of a parent who has demonstrated that she would desert them without even an explanation. Ev en if th e f acts supported an attempt at reunification, the D HHR could not even

v er ify petitioner ’ s address and would have no way of beginning reunificat ion

. Upon our review

, it is clear that the circuit court did not err in finding that ther e was no reas onable lik eli hood that5 the conditions of neglect or a buse could be substantially c orrected in the near future o r that termination of petitioner ’ s par ental rights was in the c hi ld ren ’ s best interest s.

It is worth noting that petitioner d id no t request add itional ti me to “ retur n t o compliance ”

below. In fact , petitioner did not argue an y position at the dispositional hearing ; nor did she

p resent any evidence or quest ion any witnesses

. S he did not offer an excuse for her sudden nonpartici pa tion in the proceedings

, rem ind the court of her once substan tial compliance with her improvement period , or appeal to its good gr aces by requesting a continuance so that she might begin to comply. Nevertheless, she now argues t hat the circuit court sh ould have terminated only

her cu sto dial rights to the children because the children had been placed with family an d

term in ation of her custodial rights only would allow petitioner “ to come back to court and

demons trate that she was again on the ri ght track to be a parent. ”

Petitioner ’ s arg ument focuses on her own best i nterest and i gnores th at of her children.

Th is C o urt has previously considered that “ [e] nsuring finality for these children is vital to safeguarding thei r best i ntere sts so that the y may hav e permanency and not be con ti nua lly shuttled from placement to placement.” In re Cesar L ., 221 W. Va. 249, 258, 65 4 S.E.2d 373, 382 (2007). Moreover, w e have held that

“ [t] ermination of parental right s, th e most drasti c remedy unde r the

statutory provisio n covering the disposition of ne gle cted children

, [ West Vi r ginia Code § 49

- 4

- 604] . . . m ay b e emplo yed without th e use o f intervening less

restrictive alternatives when it is found that there is no reasona ble likelihoo d

under [ West Virginia Code § 49

- 4

- 60 4( d ) ] . . . th at conditions o f n egl ect or abuse

can be sub s tantially corrected.” Syllabus p oi nt 2, I n re R.J.M. , 1 64 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). As sta t e d a bove

, t he circuit

cour t properl y found that there was no rea sonable likelihood tha t the conditions of ne glect and abuse could be substantially co rr ected in the near future. Thus, the circuit court was well w ithin its discretion to terminate petitione r ’ s pare ntal rights

. The cir cuit cour t ’ s termination of petiti o ner ’ s parental rights provided the children finality and permanency, and we find no erro r in its ultimate determination.

Fo r t he forego ing reas on s , we f ind no erro r in the de c isi on o f the cir c u it c our t

, an d its

October 1 8

, 20 2 1

, o rder is h e reby affirmed.

Af firme d.

ISSUED : 

### April 14, 2022

CONCURRE D IN BY :

Chief J u sti ce John A. Hutchison

Justi ce Eli zabe th D. W al ker6 Jus ti ce Tim Armstead

Justi ce William R. Wooton

Justic e Alan D. Moats sitting by temporary as signment