### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

FILED In re A.J. and Z.S. 

### October 12, 2018

EDYTHE NASH GAISER, CLERK No. 18-0298 (Raleigh County 2017-JA-010 and 011) SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Mother N.S., by counsel P. Mich ael Magann, appeals the Circuit Court of Raleigh County’s March 5, 2018, order terminati ng her parental rights to A.J. and Z.S. 1 The West Virginia Department of Health a nd Human Resources (“DHHR ”), by counsel Lee Niezgoda, filed a response in su pport of the circuit court’s order. The guardian ad litem (“guardian”), Brandon L. Gray, file d a response on behalf of the ch ildren in support of the circuit court’s order. J.S., the nonabusing father of Z.S., by counsel Timothy P. Lupardus, filed a response in support of the circuit court’s order. On appeal, petiti oner argues that the circuit court erred in denying her a post-dispositional improveme nt period and terminati ng her parental rights.

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 January 10, 2017, the DHHR filed an abuse a nd neglect petition alleging that A.J. was born addicted to substances and that her umbilical cord tested positive for benzodiazepines, methadone, and marijuana. Petitioner also tested positive for the same substances at the time she gave birth to the child. Additiona lly, the DHHR alleged that petitione r placed the child at risk at the hospital by “forgetting to f eed the child” and by placing the ch ild on an open cot to sleep.

On July 12, 2017, petitioner stipulated to the allegations of abuse and neglect. Petitioner was adjudicated as an abusing parent and was granted a post-a djudicatory improvement period. Following the hearing, petitioner agreed to a parent ing plan that required her to participate in parenting skills, adult life skills services, and drug screens and complete an inpatient drug treatment program. On Septembe r 20, 2017, petitioner was admitted into an inpatient substance abuse treatment program. However, petitione r left the program on October 5, 2017, against

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).

1medical advice. Petitioner failed to obtain any additional trea tment. On November 8, 2017, the DHHR and the guardian filed a joint motion to terminate petitioner’s post-adjudicatory improvement period due to her non-compliance.

On November 27, 2017, the circuit court held a hearing on the motion to terminate petitioner’s post-adjudicatory improvement period. A service provider testif ied that she provided services to petitioner f our times in October of 2017, after sh e left the treatment facility. The service provider explained that she gave petitione r the necessary information for her to apply to a treatment facility, but petitioner failed to obt ain treatment. The DHHR e xplained that, beginning in February of 2017, petitioner was directed to submit to drug screens twice a week. However, petitioner failed to appear for thirty-four screens and tested positive for substances on all of the twenty-one screens that she submitted to. Furthe r, the visitation supervisor testified that petitioner scheduled seven visits with the ch ildren during her post-ad judicatory improvement period. The visitation supervisor explained that petitioner can celled two visits, appeared intoxicated at one visit, and attended four visits. The DHHR also provided evidence that caseworkers encouraged petitioner to seek treatment for her addiction multiple times, but petitioner failed to do so. At the conclusion of the h earing, the circuit cour t found that petitioner did not comply with the terms and conditions of her post-adjudicatory improvement period and
that she demonstrated a “habitual use of cont rolled substances for wh ich she did not have a prescription, an unwillingness to participate in programs offered, an unwillingness to be aware of her need for help with issues, and . . . willful ly refused to cooperate in the execution of her family case plan.” Accordingly, th e case was set for disposition.

On February 28, 2018, the circuit court held a dispositional hearing at which the DHHR and the guardian moved to termin ate petitioner’s parental rights. Petitioner did not appear for the hearing because she entered into a treatment facility on February 24, 2018. However, she was represented by counsel. The circu it court took judicial notice of the evidence presented at the hearing on the motion to termin ate petitioner’s post- adjudicatory improvement period. The
circuit court heard additional test imony regarding petitioner’s continued lack of effort to address
her addiction after the termin ation of her improvement peri od. The circuit court found that petitioner made “minimal to non-existent” effort to address her substance abuse. The circuit
court also found no reasonable lik elihood that petitione r could correct the conditions of abuse and neglect in the near future and that termina tion of her parental rights was in the children’s best interests. The circuit court ultimately termin ated petitioner’s parent al rights in its March 5, 2018, dispositional 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

2 According to respondents, A.J.’s father, D. J., is currently participating in a post

adjudicatory improvement period. The permanency pl an for A.J. is reunifi cation with her father or adoption by her paternal grandmother. Z.S.’s fa ther, J.S., is a non-abusing parent and has full custody of Z.S.

2evidence 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 cour t erred in not granting her a post-dispositional improvement period. In support, she contends that she was making “sufficient progress and improvement” in her current re sidential substance abuse treatment program. Additionally, she argues that the children would not be harmed by allowing her additional time for improvement. We do not find these arguments pers uasive. Pursuant to West Virg inia Code § 49-4-610(3)(D), a circuit court may grant a parent an improvement period at disposition if “the [parent] demonstrates that since the initial improvement period, the [parent] has experienced a substantial change in circumstances. Further, the [parent] shall demonstrate that due to that change in circumstances, the [parent] is likely to fully part icipate in the improvement period . . . .” West Virginia Code § 49-4-610 also requires the pa rent to move, in writing, for an improvement period, which petitioner did not do. Here, petitioner was previously granted a post-adjudicatory improvement period. However, the record demonstr ates that petitioner could not establish a substantial change in circumstances since her ini tial improvement period or that she was likely to fully participate in a new improvement period.

Although she argues that she was making “su fficient progress” in her most recent treatment program, petitioner failed to successfu lly complete a treatment program during her post-adjudicatory improvement period as required by her family case plan. In September of 2017, petitioner entered into a program and comple ted approximately fifteen days of treatment before she left against medical advice. Peti tioner’s improvement period was terminated in
November of 2017 and she did not enter into an other treatment program until February of 2018. Additionally, during her post-adj udicatory improvement period, peti tioner failed to appear for thirty-four screens and tested positive for substan ces on each of the twenty-one screens that she submitted to. Further, petitioner scheduled seven vi sits with the children, but appeared to be
intoxicated at one visit and cance lled two visits. Based on this ev idence, petitione r did not meet the requisite burden to receive a po st-dispositional improvement period.

Petitioner also argues that the circuit court er red in terminating her parental rights. We disagree. West Virginia Code § 49-4-604(b)(6) pr ovides that circuit courts are to terminate parental rights upon findings that there is “no reasona ble 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)(1 ) provides that no reasonable

3likelihood that the conditions of abuse or neglect can be substantially corrected exists when the parent has “habitually abused or [is] addicted to alcohol, controlled subs tances or drugs, to the extent that proper parenting sk ills have been seriously impaired and the [parent has] not responded to or followed through the recommended and appropriate treatment which could have improved the capacity for adequa te parental functioning[.]”

As discussed above, petitioner continued to abuse substances throughout the proceedings, missed numerous drug screens, a nd tested positive for substances on the screens for which she appeared. Additionally, she failed to complete a residential treatment program, as required by her family case plan. Based on this evidence, it is clear that there was no reasonable likelihood that petitioner could correct the condi tions of abuse and neglect in the near future, and that
termination was in the children’s best interests. Therefore, we find no erro r in the circuit court’s termination of petitioner’s parental rights.

Further, while petitioner argues that the circ uit court erred in terminating her parental rights without considering a less-restrictive disp ositional alternative, we have held that

“[t]ermination of parental rights, the most drastic remedy under the statutory provision covering the dispositi on 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 re strictive 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). For these reasons, termination of petitioner’s parental rights was appropriate.

Lastly, due to the ongoing nature of A.J.’s father’s abuse and negl ect proceedings, this
Court reminds the circuit court of its duty to establish permanency for the child. Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires:

At least once every three months until permanent placement is achieved as defined in Rule 6, the court shall conduct a permanent placement review conference, requiring the multidisciplinary treatment team to attend and report as to progress and development in the case, for the purpose of reviewing the progress in the permanent pla cement of the child.

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child
within twelve months of the date of the dis positional order. As th is Court has stated,

[t]he [twelve]-month period provided in Rule 43 of the West Virginia
Rules of Procedures for Child Abuse and Neglect Proceedi ngs for permanent placement of an abused and neglected child following the final dispositional order

4must be strictly followed except in th e most extraordinary circumstances which are fully substantiated in the record.

Cecil T. , 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that

[i]n determining the appropriate permanent out-of-home placement of a child under W.Va. Code § 49-6-5(a)(6) [ 1996] [now West Virg inia Code § 49-4

- 604(b)(6)], the circuit court shall give priority to s ecuring a suitable adoptive
home for the child and shall consider other placement alternatives, including permanent foster care, only where the c ourt finds that adoption would not provide custody, care, commitment, nurturing and di scipline consistent with the child’s best interests or where a suitable adoptive home can not be found.

Syl. Pt. 3, State v. Michael M. , 202 W.Va. 350, 504 S.E.2d 177 (1998) . Finally, “[t]he guardian
ad litem’s role in abuse and ne glect proceedings does not actual ly cease until such time as the child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard , 185 W.Va. 648, 408 S.E.2d 400 (1991).

For the foregoing reasons, we find no error in the decision of the circuit court, and its March 5, 2018, dispositional order is hereby affirmed.

Affirmed.

ISSUED : October 12, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Paul T. Farrell sit ting by temporary assignment

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Allen H. Loughry II, suspende d and therefore not participating

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