1 

### S TATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

In re L.W. and M.B.

No. 2 1

- 0 494 ( Taylor County 19

- JA

- 99 and 19

- JA

- 100 )



### MEMORANDUM DECISION

Petitioner Mother C .B.

, by counsel A shley Joseph S mith

, appeal s the Circui t Co urt o f Taylor County’s May 20

, 20 2 1 , order terminating h er parental rights to L.W. and M.B

. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Pat rick Morrisey and James W. Wegman , f iled a respon se in suppo rt of the c ircui t c ourt ’ s o rde r

. The guardian ad litem

, Mary S. Nelson

, filed a response on the chil d ren ’s behalf in support of the
circuit court’s order

. On appeal, petitioner argues that the cir cuit court erred in denyin g her motion for a post

- dispositional improvement per iod a nd in terminating her par ental right s rather than imposing a less

- restrictive dispositi onal alternative.

Thi s Cou r t has considered the parties’ briefs and the record on appeal. The facts and legal

a rguments are adequately presented, and the decisi on al p r oce ss would no t be si gnifican tly aided by oral argu ment. Upon consideration of the standa rd of review, the bri e fs, a nd the record
present ed, the Court finds no substantial question of law and no preju dicial error. For these reasons, a memorand um dec is ion a ffi rm ing th e c ircuit court’s order is appropriate u nder Rule 21 of the Rules of Appellate Procedure.

In October of 2019, the DHHR filed a child ab use and neglect petition and alleged that petitioner had expo sed the children to domestic violence and fai l ed to provide the children with
ad equate care due to her substance abuse. At the time the petition was filed, petitioner was living
with L.W. ’ s father , who also exercised partial custody of two older children from a prior

1 Con sis tent with our l ong

- sta n d ing practice in cases wi th sens i tive facts, we use initials
wh ere necessary to prot ect the identiti e s of those inv olved in thi s case. See In re K .H.

, 2 35 W.
Va . 254, 773 S .E.2d 2 0 (2015); Melinda H. v. William R. II , 230 W. Va . 7 31, 742 S.E.2d 419 (2013) ; State v. Brandon B. , 218 W. Va. 324, 624 S.E .2d 761 (2005); St ate v. Edward Charles

L. , 183 W. Va. 6 41, 3 98 S.E .2d 123 (1990). 

### FILED January 12, 2022

EDYTHE NASH GAISER, CL ERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

relationship. 2 The two older child r en discl os ed tha t they witnessed peti tioner beat L.W. ’ s father

. Additionally, t hese children witnessed petitioner attac k their mother, S.W. , who later fi led for a domestic violence protective order against petitioner. The DHHR also stated that t hen six

- ye a r

old M.B. wa s bo r n w i th a “ t ethered spine

, ” which required her to be catharized every four to six
hours and require d diapering as the child had no control over her bow els . The DHHR all eged
that petitioner failed to address M.B. ’ s s pecial needs

, as serting th at M.B. suf fere d fr o m vaginal
irr itation due to petitioner ’ s neglect

. Finally, the DHHR alleged that , during its worker ’ s interaction with petitioner, petitioner ’ s “ pu pils w ere ve ry small , and she was unable to sit still or
focus. ” Petitioner was instru c te d to submit to a dr u g screen, but was una ble to produce a sample

, even after three hours of waiting and “ plenty of water. ” Petitioner was also instructed as to how to complete a mouth swab in lieu of a urine drug screen but would not complete th at scree n

. Petitioner waive d h e r prelimi n ary hearing, and the circuit court or dered her to participate in
random dr ug screening and supervised visitation with the children.

The circuit court convened for an adjudicatory hearing in December of 2019, and petitioner st ipulated to the all e g ations c o ntained in the petiti on

. The circuit court adjudicated petitioner as an a busing parent and the children as neglected children

. Petitioner moved for a
post

- adjudicatory impro vement period, which the circuit court granted.

Th e DHHR sub sequently f iled two amended petitions of child abuse and neg lect . In August of 2020, the DHHR alleged that L.W. ’s father allowed petitioner to have unsupervised

contact with L.W., despite knowing that she was not permitted to have con tact with th e child

ou tside the s upervisi o n of a third part y. In October of 2020, the DHHR al leged that M.B.
disclos ed that petitioner cho ked her a nd used ex cessive corporal pun ishment against her.

The circuit cour t held a second adjudicatory hearing on the amende d p etitions i n No vembe r of 2020. The evidence showed that M.B. su bmitted to a forensic interview, during
which she disclosed that petitioner “would grab her by the thr oat, put her hands around her throat and squ eeze. ” M.B. stated that petitioner was “angry wh en she put her hand s around h e r throat. ” According to the DHHR worker for the case, M.B . was “very vo cal and expressed co ncern

re garding her safety with [petitioner .] ” M.B. stated that “she would die young

, ” if left in petitioner ’s care because petition e r choked her . M.B. al s o stated t hat petitioner would discipline
her with a belt. M.B. ’s forensic interview was admitted as evidence. Petitio ne r denied that she
choked M. B. and asserted that the child was coerced into making the allegations by her current
f am ilial plac ement.

P e titioner and L.W

. ’ s father admitted that petitioner had unsupervised contact with L.W.
Petitioner testified that she had fewer than ten instances of unsupervised con tact with the child.

Pet itioner denied that she was abus ing c on trol led substances, despi te the ci rcu it cour t c o n fronting
her with an O ctober of 2020 drug screen that was positive for metham phetamine . Petitio ner also
asserted that she had submitted to drug testing at a local hos pital , despite the circuit court ’s orde r

2 Petitioner asse rts no pa rental or custodial rights to these childr en, and they are not at issue in this appeal.3

to s ubm it to testing at c ommuni ty corre cti o n s. The DHHR noted that since petitioner ’s pos itive drug screen in October of 2020, she had not su bmitted to a drug screen at the community
corrections location.

The circuit court ultimately fo und that petition er was no t credible . The co urt no ted that
while pe t i tioner h a d previously denied having unsupervised contact with L.W., she subsequently
admitted to such contact but minimized that contact

. The court further found that M. B. ’s

stat em ents during the f

orensic inter vie w w ere consistent with the statements made to the DHHR
worker. The cour t foun d n o eviden c e that M.B. was coached into making the allegations. The circuit court adjudicated petitioner as an abusing parent based on its findings and adjudica ted the
childre n a s abused and neglected chi ldren. Further, the circuit court orde red pet itione r t o submit

t o a drug screen immediately following t he hearing and reiterated its prior order that petitioner submit to drug screening at the community cor rectio ns location.

I n M ay of 2021, the circuit court held the final dispositional hearing. The DHHR

pre sented t e s timony from petitioner ’ s case worker and the director of community corrections.
Petitioner ’ s case worker testified that pet itioner completed paren ting and adult l ife sk ills classes and a parental fitness evaluation. Petitioner also “fait hf u lly ” par ticipate d in random drug screening wh en she was on “ demand ” status, but petitioner failed to participate when she was placed on the random drug screening sche dule , which occ urr ed in mid

- 2020 . The caseworker
believed petitioner continued to abuse control led substan c e s and reminded the circuit court of petitioner ’s drug screen in October of 202 0 that was positive fo r me th amp hetamine. The
caseworker testifi ed that near in time t o t his positive test, petitioner appeared to be under the
influence when meeting wi th the c a s e worker and during a supervised visi tation wit h the children

. The caseworker testified that visitation had not res umed since that time because petit ioner fail ed

to co nsistently participate in random drug screening at community correctio ns afte r O ctober o f 2020. The caseworker explained that petitioner asserted she was participating in drug testing at a local hospital , despite the circuit court ’s order for her to par tic ipa te at the community corrections
location . Neverthel e ss , the case worker req ues ted that peti t i oner s ign a release so that the alleged hospital d rug screen results could be obtained

. P etitioner did not sign the release

. The director of

c ommunit y correct ion s confirmed that petitioner failed to submit to a drug screen following the

Nov ember o f 2 020 hear i n g, as directed by the circuit court.

The caseworker testified that petitioner had n ot been honest with the multid iscip linary

treatment t eam ( “MDT ”)

, and tha t petiti oner ’ s dishonest y was a barrier for treatment. The
DHHR discovere d that petitione r was living with L.W. from October o f 2019 u nti l May of 2020

, even though the ci rcuit court order ed that she have no unsuperv ised contact with L.W. T he

case worker fur ther testified that

, when t he D HHR took em ergency custody of M.B., that child ’s
social se curity bene fits were order ed to be paid to the DHHR. However, the DHHR discov ered that petitioner rerouted the pa yments back to her self so on after M.B. ’s removal. T he DHHR did

not discover th e discr epan cy until March of 20 2 0

, at which point petitioner had received some $2 ,300 dollars in benefits . Although petitioner was notified of the issu e, she had not p rovided
those funds to the DHHR for M.B. ’s care

.

The casewor ker furthe r testified that M. B

. continued to expr ess that she was afraid of petitioner. Although M.B. was ob serve d to be hap py at supervised visitations, the caseworker4

testifie d that M.B. stated she was excited t o see L.W., not petit ioner. Finally, the ca se w orker

t es tified th at petit i oner ha d no insight into how her conduct c ons tituted a buse or neglect of the
children. The caseworker confirmed that petitioner completed requested services but believe d
there had bee n no internal sh ift in her thought process or insight i nto her o wn b e ha v i or.

Petitioner ack nowledged that she was aware she was not permitted to live with L.W. during the proceedings and admitted that she had lived in the home for a period of ten months

. Durin g this peri od, she supervised the chil d a lone for the m ajority of the wee k due to the father ’s
work schedule. Peti tioner asserted that the DHHR never aske d her to provide proof of her drug

screens to which she submitted at the local hospital . Further, p e titioner admit ted that she received

M.B. ’s social secu r ity benefi ts and h a d not pro vided those funds to the DHHR as requested.
Petitioner stated that she did not understand that the circuit court had required her to drug screen
foll owing the November of 2020 hearing.

Ultimat ely, the circui t cou rt fou nd that peti tioner ’s testimon y was no t c r edible b ased on
her admi ssion that she was living with L.W. , which was contrary to her prior testimony that she had only a few unsupervised cont acts with that child. The c ourt f urther consi dered that it d irect ed petitioner to drug screen after t he Nove mbe r of 202 0 hearing and found it was incredulous that
she did not understand that order. The cour t found that pe titioner failed to submit to random drug screening as directed and failed to add ress her substa nce a bus e addiction. The circuit court a l so foun d t hat peti t ioner had not visited with the children since Octobe r of 2020 due to her failure to consistently submit to random drug screening. The circuit court denied petitioner ’s motion for a
post

- dispositio nal i mpr ovement peri od because of her fa i lure to c o mply wit h random drug screening. Moreover, the circuit court d enied pe titioner ’s motion for termination of her custodial rights only due to the children ’s need for permanency. Finally, the c ircuit court fo und t hat t her e

wa s no reasonable likelih o od that pe titioner could substantially correct the cond itions of neglect
and abuse in the near future and that termination of petitioner ’s parental rights was neces sary for
the welfare of the children

. Accordingly, the c irc uit court entered its May 20 , 20 2 1, orde r, terminat i ng petitioner’s parental rights. Petitioner now appeals that order. 3

T he Court has previou sly he ld :

“Although conclusions of law re ached by a circu i t cou rt a re subject to d e

nov o r eview, wh en an action, suc h as a n a buse a nd neglect c ase, is tried upo n the
f acts w itho ut a j ury, th e circuit court shall make a determin ation ba sed upon the
evidenc e an d shall make fin dings of fact and conc lusions of law a s t o w heth er such child i s abu sed or negle cte d. These findi ng s sh a ll not b e set asid e by a reviewing co urt unl ess cl earl y er ro neous. A finding is clearly e rroneous when,
altho ugh there is evidence t o su pp ort the findin g, the reviewing court on the entire

e v id enc e is left with the defin ite and firm co nvi ction that a mi st a ke has b ee n

3 M.B. ’ s father volu ntarily relinquished his parental right s to the child. According to the

p arties , M.B. ’ s perman ency plan is ad option by a relative. L.W. ’ s fa ther is c urrently partici pa ting
in a n impr oveme nt p eriod, and the c hild ’ s p er manency plan is reunification with his father.5

commit t e d. Ho wever, a rev iewing cour t may not ov erturn a finding simply
becau se it would hav e dec ide d the case different ly, an d it must affi rm a finding if
the ci rcuit court’s ac c ou nt of t he evidence is plaus ibl e in ligh t o f t he record

v ie we d i n its e n ti rety.” S y l . Pt. 1, In In ter est of Tiff an y Ma rie S. , 196 W .Va. 223,
470 S.E.2d 1 77 (1996).

Sy l. Pt . 1

, In re Cecil T

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

On appeal, petitioner argues that the circui t cou rt erred in den ying her motion for a post

d i spos itional i mprovement period. S he argues tha t the e vidence showed she had been drug screening regularly at the local hospital, m aintained full time employment, complet ed parenting classes, a nd was willing to pa rti cipate in other services to rega i n c usto dy of her chi l dren

. Petitioner ass erts that during her post

- adjudicatory improvement period

, she participated in all
the services offered by the DHHR “ excluding drug screening at [the ] community cor rections [locat ion ] after Sep tem ber of 2 0 20. ” We find petitio n er is entitled to no relief on appeal.

West Virginia Code § 49

- 4

- 610(3) (B) requir es that , to b e grant ed a post

- dispositional impr ovemen t period

, a parent must “ demonstrate

, by c lear and convin cing evi dence

, tha t [ she] is likely to f

u lly par ticip a te in t h e improvement period

. ” Furt her, in circum stances where a parent was previously granted an improv ement period, the parent must p rove that “ since the initial improvement period, the [parent ] has e xp erienced a s u bst ant ial ch ange in circu m stances ” and
that du e to the ch ange in ci rcu mstances , the pare nt “ is likely to fully participate in the
im provement p eriod. ” W. V a. Code § 49

- 4

- 610( 3)(D ). “ We st Virginia law allows the circuit
court d iscretion in de ciding whether to g ra nt a parent an impr o vement perio d

. ” In r e M.M. , 236
W. Va. 10 8, 115, 778 S.E.2d 33 8, 345 (2015)

.

Upon our review , we find that peti tioner ’ s argument misstates the record. Petitioner
asserted below that she continued to participate in drug screening th rough the local hospit a l and

t hat the DH HR ha d n e ver requested the record s from the hospital

. However, petitioner ’ s caseworker testified that she requested that petitioner sign a release to obtain those record s and petitioner failed to comply with that req ue st . The cir cuit court deemed petitio ner to be not

c r edib le in man y aspect s of her testimony

. We have previously held that “[a] reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely situated to make
such dete r mi na tions and t his Court is not in a position to, and w ill not, second guess such
determinations.” Michael D.C. v. Wanda L.C.

, 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997). Moreover, the evidence below showed that peti tioner tested positive for me thamp h et am ine in
O c to ber of 2020 and was b elieved to be under th e influence during her interactions with the
caseworker and her children. This evidence , as well as petitioner ’ s disregard for the circuit

court ’ s order to submit to a random dru g screen f ollowing t he N ovember of 2020 hearing, was suff icient , in our view , f

o r the circuit court to den y petitioner ’ s motion for a post

- dispositional improvement period. Furthermore, petitioner fails to assert that she experie nced a substantial change in circumstances tha t r endered her li kely to fully par tici pate in an ad d ition al
i mprovement period , and it appears that no such change ha d o ccurred

. In su m, we find no error
in the circuit court ’ s denial of peti tioner ’ s post

- dispositio nal improvement period upon these
circums ta n ces.6

Petitio ner also argues th a t the circuit co urt e rre d in terminating her par ental rights rather than imposing a less

- restrictive dispositional alternative. Petitioner briefly challenges the circuit

court ’ s finding that there was no reasona ble likel ih o od that the co nditions of abuse and neglect
could be s ubs t antially corrected in the near future. Petitioner also asserts that the children were in familial p lacements and , therefore, permanency for th ose child ren w ould not be delayed if the
circuit cour t t erminated only petitioner ’ s custodi al rights. We find pet i tioner is entitled to no
relief.

P ursuant to West Vi rginia Code § 49

- 4

- 604 ( c)(6) , a circuit court may ter minate a parent ’ s
pare ntal rights upon finding that “ there is no reasonable likelihood th a t the conditions of neglect
or abuse can be substant iall y corrected in the nea r future ” and that termination is n ecessary for

t he welfa r e of the children. West Virgin i a Code § 49

- 4

- 604(d) ( 3) provides that there is no
reasonable likelihood th a t the conditi on s of neglect or ab use can be substantially corrected wh en

[t] he abusing parent or parents have not responded t o or followed through w ith a reasonable family case p lan or other rehabilitative efforts of social, medical, mental health, or o ther rehabilit at i ve agencies de s igned to reduce or prevent the
abuse or neglec t of the child, as evidenced by the continuation o r insubstantia l
diminu t ion of conditions which threat ened the health, welfare, or life of the
child [ren]

.

Here, the circuit co urt properly f ou n d that there w a s no reasonable li kelihood that petitio ne r could substantially correct the conditions of neglect or abuse in t he near f uture because

s he did not respond to a reasonable family case plan as evidence d by the continu ation of the
conditions o f n eglect and abu se. A s noted above, petitioner tested po sitive for controlled
substances in October of 2020 and was observ ed t o be un d e r the influence . This pos itive test
occurred near the natural termi nation of petitioner ’ s post

- adjudicatory improvement per iod

. Ther eafter , p etitioner did not consist ently participa te in random drug screeni ng, which directly
resulte d in the suspen sion of h er supervised visitations with the children. Th e circuit court found
that petitioner had not visit ed with the chi ldren s i n c e O c tober of 2020. We agree with th e circuit

cour t that there is clear evidence that petitioner continued to abuse controll e d substance s an d had
f ailed t o rem edy her addiction

.

In support of her argument concerning the termination of her parental righ ts

, pet itioner argues that her circumstances were similar to In re B.S. , 242 W. Va. 123

, 829 S.E.2d 754 (201 9)

,

w herein this Court de clin ed to reverse a circu it court ’ s order that ter minate d a mother ’ s custo dial

r ights , ra ther t han her p ar ental rights

. Lik e p etit ioner , t he mother in B.S. also suffered from
substance a bus e addiction

, and that mother attempted to rem edy her addiction through a sober
l iving progra m. Id . at 12 6

- 27, 829 S.E.2d at 75 7

- 58 . However, when t he mother in B. S. moved
out of the fa cility , s he r elaps ed into substance abuse and ceased participating in services

. Id

. T he
circ u i t court consi dered the mother ’ s attempt at obtaining sobri ety and ulti m ately decided to
terminate h er custodial rights on ly b ased on its fin ding that termination was no t i n th e chi ld ’ s best intere sts

. Id . at 128, 829 S.E.2d at 759. In B.S. , this C ourt str e ssed the “ predominately f act bound enterprise ” of child ab use and negl ect proceedings and emphasize d that “ absent a mistake

o f law, an appel late tribun al should d isturb a circ uit c ourt’s determination only if it is clear ly

erroneou s. ” Id. at 130, 829 S.E. 2 d at 761 (quoting Tiff an y Ma rie S. , 196 W .Va. at 237, 4707

S.E.2d at 19 1 ). Just as in B.S. , we decli ne to disturb th e circuit court ’ s decisio n in this case. The
ci rcuit cou rt ’ s find ing that there was no reasonabl e likelihood that pe titioner could s ubst anti a lly

correct the condition s of neglect or abuse in the nea r future and that termination was necessary for the children ’ s welfa re is not clear ly erroneous upon our review of the r eco rd

.

F inally, t his Court has held that

“ [ t] ermination of parental right s, the most drastic remedy under the statutory provi sion covering the disp osition of neglecte d children, [ Wes t Virginia Code §
49

- 4

- 604] . . . m ay be employed without the u se of i nterv ening less restrictive
alternatives when i t is found that there is no reasona ble likelihood under [ West Virginia Code § 49

- 4

- 604( d ) ] . . . that co nditions of neglect or abuse can be substantially corre cted.” Syllabus point 2, In re R.J.M. , 164 W.V a. 4 96, 2 66 S.E.2d 114 (1980).

Syl. Pt. 5, In re K

ristin Y. , 227 W

. Va. 55 8 , 712 S.E.2d 55 (2011). A s the circuit court ’ s finding is supported by the reco rd, it was wi thin its discretion to terminate petitione r ’ s par ental ri ghts.
We find no error in th e c ircu it co urt ’ s order on app eal

.

Fo r the foregoing reas ons, we find no erro r in the dec isi on of the cir cuit court

, and its May 20

, 20 2 1 , o rder is h e reby af firmed.

Affirme d.

ISSUED : 

### January 12, 2022

CONCURRE D IN BY :

Chief Justice John A. Hutchison

J ustice Elizabeth D. Wal ker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton