(Braxton
County 16-JA-68)
MEMORANDUM DECISION
Petitioner
Mother L.R., by counsel Andrew Chattin, appeals the Circuit
Court of Braxton County's March 10, 2017, order
terminating her parental and custodial rights to
P.R.[1]
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"), Mary Elizabeth Snead, filed a
response on behalf of the child in support of the circuit
court's order and a supplemental appendix. On appeal,
petitioner argues that the circuit court erred in refusing to
grant her an improvement period prior to terminating her
parental and custodial rights.
This
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.
In
November of 2016, the DHHR filed an abuse and neglect
petition against petitioner alleging she knowingly or
intentionally inflicted physical injury upon the child by
consuming and using controlled substances during her
pregnancy. The DHHR alleged that petitioner and the child
tested positive for Subutex and amphetamines on the day of
the child's birth. The DHHR further alleged that
petitioner had a history of drug addiction issues and that
those issues impaired her ability to parent the child. Also
in November of 2016, the DHHR filed an amended petition
alleging that petitioner's parental rights to five older
children were involuntarily terminated in separate cases in
2008, 2009, and 2014, and that petitioner voluntarily
relinquished her rights to a sixth child in 2013.
In
December of 2016, the circuit court held an adjudicatory
hearing where petitioner was adjudicated as an abusing
parent. According to the DHHR, petitioner's prior
terminations of parental rights were due to her addiction to
controlled substances and her failure to substantially
correct the conditions of abuse and neglect.
In
January of 2017, the circuit court held a dispositional
hearing wherein petitioner moved for an improvement period.
According to the guardian and the DHHR, petitioner tested
positive for illegal controlled substances in November of
2016 and in December of 2016; made no efforts to comply with
services; and had no contact with the child since his birth.
The circuit court found that petitioner had her rights to
five children involuntarily terminated and voluntarily
relinquished rights to the sixth child through multiple abuse
and neglect proceedings and all were the result of
petitioner's addiction and abuse of controlled
substances. The circuit court further found that termination
of petitioner's parental and custodial rights was in the
best interest of the child. The circuit court denied
petitioner's motion for an improvement period at
disposition and ultimately terminated her parental and
custodial rights in its March 10, 2017, order.[2] It is from the
dispositional order that petitioner appeals.
The
Court has previously established 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 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
177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d
873 (2011). Upon our review, the Court finds no error in the
circuit court's rulings.
On
appeal, petitioner argues that the circuit court erred in
terminating her parental and custodial rights without first
granting her an improvement period. Petitioner argues that
the circuit court should have granted her an improvement
period so she could attend long-term inpatient drug
rehabilitation. According to petitioner, if given the
opportunity, she would comply with all of the terms and
conditions of an improvement period.
In
order to obtain an improvement period at disposition, under
West Virginia Code § 49-4-610(3)(B), it is required that
the parent "demonstrates, by clear and convincing
evidence, that the [parent] is likely to fully participate in
the improvement period . . . " Further, we have often
noted that the decision to grant or deny an improvement
period rests in the sound discretion of the circuit court.
See In re: M.M., 236 W.Va. 108, 778 S.E.2d 338
(2015) (stating that "West Virginia law allows the
circuit court discretion in deciding whether to grant a
parent an improvement period"); Syl. Pt. 6, in part,
In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996)
(holding that "[i]t is within the court's discretion
to grant an improvement period within the applicable
statutory requirements").
Here,
petitioner failed to present any evidence to demonstrate to
the circuit court that she would be likely to fully
participate in an improvement period granted at disposition.
The record on appeal shows that petitioner did not comply
with services during the proceedings and had no contact with
the child since his birth. Further, petitioner had a long
history of drug abuse and tested positive for illegal drugs
in November and December of 2016. Based on this evidence, we
find petitioner did not prove by clear and convincing
evidence that she would be likely to fully participate in an
improvement period and, therefore, we find no error in the
circuit court's denial of petitioner's motion for an
improvement period at disposition.
Further,
we have previously 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 restrictive 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 neglect or abuse ...