### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

FILED In re A.G., J.F.-1, and D.F. 

### March 12, 2018

EDYTHE NASH GAISER, CLERK No. 17-0875 (Gilmer County 16-JA-10, 11, and 14) SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Mother S.H., by counsel Jared S. Fr ame, appeals the Circuit Court of Gilmer County’s September 5, 2017, order terminating he r parental rights to A.G., J.F.-1, and D.F. 1 The West Virginia Department of Health and Hu man Resources (“DHHR”), by counsel Brandolyn N. Felton-Ernest, filed a response in support of the circuit court’s order and a supplemental appendix. The guardian ad litem (“guardian”), Mary Elizabeth Snead, filed a response on behalf of the children also in support of the circuit cour t’s order. On appeal, pe titioner argues that the circuit court erred by terminati ng her parental rights when the conditions of abuse and neglect were correctable and she had begun making improvements during the proceedings.

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 June of 2016, Child Protective Services (“CPS”) opened a case with petitioner and J.F.-2, the father of J.F.-1 and D.F., to address concerns with the parents’ caregiving capabilities.
The children did not have an ad equate living situation, as they moved from home to home on a nearly daily basis. CPS implemented a safety plan with services to address its concerns; however, in July of 2017, the children were rem oved from the home pursuant to an emergency order. Shortly thereafter, the DHHR filed an abus e and neglect petition against the parents and alleged that they failed to comply with the sa fety plan. Specifically, law enforcement officers responded to the parents’ home after receiving calls regarding a domestic violence incident. Officers responded to the home multip le times that day and observed J.F.-2 to have teeth marks and swollen skin on his forearm. Additionally, petitioner was observed to have marks on her

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). Additionally, because one of the children and his father share the same initials, we will refer to them as J.F.-1 and J.F.-2, respectively, throughout this
memorandum decision.

1forearms and wrists, a bruise under her eye, and strangula tion marks around her neck. The DHHR alleged that the parents enga ged in domestic violence after pe titioner requested that J.F.-2 take her to obtain Subutex pills and he refused. Two of the children were present in the home during this event. Both petitioner and J.F. -2 were arrested fo r domestic battery.

The circuit court held an adjudicatory hear ing in August of 2016, during which petitioner stipulated to allegations contained in the petition. The circuit c ourt accepted petitioner’s stipulation and adjudicated her as an abusing parent. 2

In October of 2016, the circuit court grante d petitioner a post-adjudicatory improvement period. As part of the terms and conditions, petiti oner was required to (1) pa rticipate in adult life skills classes, parenting classe s, individual counseling sessions , domestic violence counseling sessions, substance abuse counseling sessions, and any other services the DHHR deemed necessary; (2) submit to a substance abuse evaluation; and (3) submit to random drug and alcohol screening before supervised visi tation with the childre n was initiated.

In March of 2017, the guardian moved the circuit court to re voke petitioner’s post

adjudicatory improvement period and terminate he r parental rights. In support of her motion, the guardian stated that, in February of 2017, petitioner refused to appear for an alcohol screen on two separate occasions. Later in February, petiti oner appeared for an alcohol screen but tested positive on the preliminary screen ; an oral swab was sent to the lab for confirmation. The guardian further alleged that petitioner was essentially homeless for a period of time, having
been asked to leave her former residence. Addi tionally, petitioner admitted during her substance
abuse evaluation that she had abus ed opioids since the age of fift een and alcohol since the age of eighteen. The evaluator’s diagnostic impre ssion was severe opioid use disorder.

Later in March, the circuit court held a revi ew hearing wherein peti tioner requested an extension to her post-adjudicato ry improvement period. The circu it court reinstated supervised visitation on the condition that petitioner submit to drug and alcohol scr eens before each visit and at any other time requested by the DHHR.

After several continuances, the circuit cour t held a dispositional hearing in August of 2017, during which several witnesses testified as to petitioner’s noncompliance throughout her improvement period. A service provider testified that petitioner continued to abuse alcohol during the improvement period because she believed that it was permissible as long as she did not have the children, despite attempts by the serv ice provider to explai n that alcohol use was prohibited. While the service provi der believed that petitioner be gan complying more with the services throughout the improvement period, she did not believe that petitioner made any

2 While the circuit court adjudicated petitione r as an “abusing and neglecting parent[,]” we note that the phrase “neglecting parent” does not appear in the statutory framework for abuse and neglect proceedings in this State. Instead, West Virginia Code § 49-1-201 defines “abusing parent” as “a parent . . . whose conduct has be en adjudicated by the court to constitute child
abuse or neglect as alleged in the peti tion charging child abuse or neglect .” (Emphasis added.) As such, the Court will refer to petitioner as an “abusing parent ” in this memorandum decision, as that phrase encompasses parents who have been adjudicated of abuse and/or neglect.

2progress due to her continued relationship with J.F.-2. Another service provider testified that petitioner was not consistently compliant and c ooperative with her pare nting classes until after she ended her relationship with J.F.-2. The servi ce provider, after learning of petitioner’s recent positive drug screen, also testified that she di d not believe that petitioner could correct her substance abuse in the near future because, in addition to receiving services throughout the proceedings, she previously had been in inte nsive treatment programs, including a Suboxone program and a Methadone program, and yet failed to remedy the issue. A CPS worker testified
that the DHHR recommended termination because petitioner continued to have a substance abuse problem, did not report the instances of domestic violence ag ainst her, and did not timely cooperate with the DHHR. Further, the CPS worker indicated that petitioner had been the subject of prior referrals due to wrecki ng her car while intoxi cated with a child present and giving birth to two children who had drugs in their systems.

Petitioner testified that she ended her relationship with J. F.-2 in May of 2017, after he sexually assaulted her and that she began making improvements with the serv ices provided. Petitioner testified that she only had one week of her intensive treatment program remaining and that the positive drug screen sh e had recently produced in July of 2017 was due to medication prescribed for seizures. Despite the drug screen showing traces of methamphetamine, petitioner
insisted that she had not abused that substance. Petitioner also admitted to domestic violence in the home throughout the improvement period, but stat ed that she sought counseling after leaving her abusive relationship. After hearing evidence, the circuit court found that pe titioner continued to abuse alcohol, failed to comply with services , and engaged in domestic violence throughout the proceedings and, therefore, revoked her pos t-adjudicatory improvement period. Further, petitioner had a lengthy history of drug abuse and tested positive for methamphetamine as recently as July of 2017, after extensive substanc e abuse treatment. Accordingly, the circuit court terminated petitioner’s parental rights upon findings that there was no reasonable likelihood that
she could correct the conditions of abuse and neglect in the near future and that termination was necessary for the children’s welfare. 3 It is from the September 5, 2017, dispositional 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 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

3 The parental rights of J.F.-2 were also terminated during the proceedings below. The permanency plan for J.F.-1 and D.F. is adoption by either their foster fa mily or a relative. The petition against A.G.’s father was dismissed af ter he successfully completed an improvement period. The permanency plan for A.G. is to remain with her father.

3because 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).

On appeal, petitioner argues th at the circuit court erred in terminating her parental rights when the conditions of abuse and neglect were correctable and she had begun making improvements in that regard. Specifically, petiti oner argues that she separated from her abuser, began attending counseling sessions, and remained free from drugs and al cohol. However, we find petitioner’s argument to be meritless. West Virginia Code § 49-4- 604(b)(6) provides that circuit courts are to terminate pa rental rights upon findings that there is “no reasonable 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 welf are. According to West Virginia Code § 49-4

- 604(c)(3), a situation in which there is no r easonable likelihood the conditions of abuse and neglect can be substantially co rrected includes one in which

[t]he abusing parent . . . [has] not re sponded to or followed through with a reasonable family case plan or other rehabilitative efforts of social, medical, mental health or other rehabilitative ag encies designed to reduce or prevent the abuse or neglect of the child, as eviden ced by the continuation or insubstantial
diminution of conditions which threatened the health, welfare or life of the child[.]

Contrary to her argument, petitioner failed to follow through with rehabilitative efforts aimed at correcting the conditions of abuse and neglect. Petitioner was granted an improvement period in October of 2016 and was instructed to participate in severa l services targeting substance abuse and domestic violence. Testimony at the dispositional h earing established that, despite having attended these serv ices, petitioner did not progress due to her refusal to end her relationship with J.F.-2. Petitione r knew that she was adjudicate d, in part, based upon allegations of domestic violence, yet she did nothing to se parate herself from the situation. Petitioner testified at the dispositional hearing that domestic violence in the home continued throughout the proceedings and intensified after March of 2017, but that she did not leav e until May of 2017, well after her improvement period expired. Petit ioner also refused to report the domestic
violence incidents.

Further, petitioner either tested positive for alcohol or refused to submit for screening three times during her improvement period. The re cord demonstrates that petitioner received extensive treatment prior to the proceedi ngs through a Suboxone program and a Methadone program, and received services addressing subs tance abuse both during her improvement period and after its expiration, yet tested positive for methamphetamine as recently as July of 2017. Petitioner’s argument that she simply needed more time to comply with services after leaving an abusive situation is unper suasive in light of the fact that she abused alcohol and drugs well before entering into a relationshi p with J.F.-2, and continued to do so despite being afforded

4substantial time and resources to overcome he r addiction. While peti tioner argues that lessrestrictive alternatives to termination were available, we have held that

“[t]ermination of parental rights, the most drastic remedy under the statutory provision covering the disposition 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 rest rictive 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). Petitioner had a significant history of alcohol and drug abuse that she refused to correct and continued to participate in domestic violence throughout the proceedings below. Moreover, petitioner failed to meaningfully participate in her improvement period and only sought treatment after it had expired. Based upon the evidence,
we find that there was no reason able likelihood that petitioner could correct the conditions of abuse and neglect and that termination was nece ssary for the children’s welfare. As such, the
circuit court did not err in te rminating her parental rights.

Lastly, because the proceedings in circuit court regarding the placement of J.F.-1 and

D.F. are still ongoing, this Court reminds the circuit court of its dut y to establish permanency for these children. Rule 39(b) of the Rules of Proc edure 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
children within twelve months of the date of the disposition orde r. As this 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 must 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 Virginia 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

5custody, 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 September 5, 2017, order is hereby affirmed.

Affirmed.

ISSUED : March 12, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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