In re: R.B. and C.B.
County 15-JA-42 & 15-JA-43
Mother M.R., by counsel Ann Marie Morelli, appeals the
Circuit Court of Hancock County's August 18, 2016, order
terminating her parental rights to then two-year-old R.B. and
one-year-old C.B. The West Virginia Department of Health and
Human Resources ("DHHR"), by counsel Lee Niezgoda,
filed a response in support of the circuit court's order.
The guardian ad litem ("guardian"), Cathryn A.
Nogay, filed a response on behalf of the children in support
of the circuit court's order. On appeal, petitioner argues
that the circuit court erred in terminating her parental
rights to the children when a less-restrictive dispositional
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
December of 2015, the DHHR filed an abuse and neglect
petition against the children's parents. In the petition,
the DHHR claimed that the parents were involved in a domestic
incident that left the children (both under the age of three)
alone in the home without supervision and that the parents
abused heroin. Thereafter, petitioner waived her right to a
February of 2016, the circuit court held a hearing at which
petitioner agreed to enter inpatient drug treatment. The
circuit court ordered petitioner to enter inpatient drug
treatment, and it stated that if she failed to do so, the
matter would proceed to adjudication. Thereafter, it was
reported that petitioner failed to enter a treatment program
and that she tested positive for controlled substances on
more than one occasion.
March of 2016, the circuit court held an adjudicatory
hearing. Petitioner did not appear in person, but was
represented by counsel. Based on petitioner's continued
substance abuse and failure to participate in the
proceedings, the circuit court found that petitioner was an
abusing parent. The matter was scheduled for disposition.
April of 2016, the circuit court held a dispositional
hearing. Petitioner again did not appear in person at this
hearing, but was represented by counsel. Reportedly,
petitioner was admitted into a detoxification program prior
to the hearing. For that reason, the circuit court continued
the dispositional hearing to May of 2016. The dispositional
hearing was again continued due to reports that petitioner
was arrested on drug-related charges.
of 2016, the circuit court held a final dispositional
hearing. Despite having been released from incarceration
approximately five days prior to the hearing, petitioner
failed to appear in person, but was represented by counsel.
At the hearing, it was noted that petitioner was admitted
into a detoxification program in April of 2016, but she had
left the program the same day. Given petitioner's failure
to correct her substance abuse issues, by order entered on
August 18, 2016, the circuit court terminated
petitioner's parental rights to the
children. This appeal followed.
Court has previously established the following standard of
"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 shall 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. These findings 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 finding, the reviewing 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
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
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d
appeal, petitioner argues that the circuit court erred in
terminating her parental rights to the children without
employing a less-restrictive dispositional alternative.
Petitioner asserts that law favors the least-restrictive
alternative and that the circuit court could have granted the
children's grandparents legal guardianship, which would
have prevented the need for the termination of
petitioner's parental rights. Petitioner acknowledges
that "[t]ermination [of parental rights] . . . may be
employed without the use of intervening[, ]
less[-]restrictive alternatives when it is found that there
is no reasonable likelihood . . . that conditions of neglect
or abuse can be substantially corrected." In re
Katie S., 198 W.Va. at 82, 479 S.E.2d at 592, syl. pt.
7, in part. West Virginia Code § 49-4-604(c)(3) provides
that "no reasonable likelihood that the conditions of
abuse or neglect can be substantially corrected" exists
when "[t]he abusing parent . . . ha[s] not responded to
or followed through with a reasonable family case plan or
other rehabilitative efforts[.]"
to petitioner's claim that she could have substantially
corrected her substance abuse issues in the near future if
granted more time to do so, the evidence showed that
petitioner had failed to respond or follow through with
rehabilitative efforts in this case. Based on
petitioner's repeated failures to comply with
rehabilitative efforts and her continued drug abuse, we find
no error in the circuit court's termination of
petitioner's parental rights without employing a
less-restrictive dispositional alternative.
foregoing reasons, we find no error in the decision of the
circuit court, and its August 18, ...