County 18-CJA-27-JPM, 18-CJA-28-JPM, 18-CJA-29-JPM,
Mother J.N., by counsel Michael B. Baum, appeals the Circuit
Court of Ohio County's August 9, 2018, order terminating
her parental rights to N.B., I.L., C.C.-1, and
C.C.-2.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"), Joseph J.
Moses, filed a response on behalf of the children also in
support of the circuit court's order. On appeal,
petitioner argues that the circuit court erred in terminating
her parental rights without granting her an improvement
period or considering less-restrictive alternatives.
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.
April of 2018, the DHHR filed a child abuse and neglect
petition against petitioner regarding her drug abuse.
Specifically, the DHHR alleged that in March of 2018, Child
Protective Services ("CPS") and law enforcement
responded to petitioner's home to conduct an
investigation and found petitioner under the influence of
drugs with the children in her care. Petitioner's
boyfriend was discovered to be hiding in the home and he was
arrested based upon a warrant for his arrest from Missouri.
The search also revealed drug paraphernalia throughout the
home including thirteen hypodermic needles, one of which
contained a brown liquid. The DHHR alleged that
petitioner's drug use impaired her ability to properly
parent the children or provide for their well-being and that
she exposed the child to inappropriate people and unsafe
situations. The DHHR further alleged that petitioner had a
history of mental illness, exposing her children to
inappropriate persons, and criminal drug activity and that
these issues continued unabated despite the provision of
services designed to remedy those issues.
that month, petitioner waived her preliminary hearing and the
circuit court ordered her to submit to random drug screens.
However, immediately following the hearing, petitioner was
arrested upon a warrant from Pennsylvania for a drug-related
offense. Petitioner was released from incarceration in May of
2018, but was arrested only days later upon a warrant from
Ohio on charges of possession of a controlled substance,
trafficking in drugs, and charges related to possession of
drug abuse instruments after she was found unconscious in a
vehicle while under the influence of drugs.
circuit court held an adjudicatory hearing in May of 2018.
Petitioner stipulated to the allegations contained in the
petition and requested a post-adjudicatory improvement
period. The circuit court held petitioner's motion in
abeyance pending a multidisciplinary team ("MDT")
meeting. Although the MDT met to discuss petitioner's
request for an improvement period, no consensus could be
reached due to petitioner's chronic history of drug
abuse, lack of response to services, and her continued drug
abuse and criminal activity throughout the proceedings.
of 2018, the circuit court held a dispositional hearing.
Petitioner failed to attend and her counsel requested a
continuance, proffering that petitioner's mother
indicated that petitioner had checked into a detoxification
facility the night before the hearing. The circuit court
denied the request, however, due to petitioner's failure
to inform her counsel, the DHHR, or the circuit court
regarding her admission; her failure to seek treatment prior
to the hearing; and her continued drug abuse and related
criminal offenses during the pendency of the case.
DHHR presented the testimony of a DHHR worker, who was also a
former service provider for petitioner. The worker testified
that petitioner was offered services following a prior
referral, such as safety services and parenting classes.
However, petitioner failed to stay enrolled in a treatment
program and continued to abuse drugs. A law enforcement
officer testified that, upon searching petitioner's home,
he found drug paraphernalia such as pipes and needles within
the reach of the children. Finally, a CPS worker testified
that petitioner initially failed to submit to drug screens.
When petitioner began submitting to drug screens, she tested
positive for methamphetamine every time and also recently
tested positive for ecstasy and cocaine. The worker further
testified that petitioner filled out applications for
treatment centers and stated she intended to admit herself,
but he had no confirmation that she had done so.
hearing evidence, the circuit court found that petitioner had
a long-standing drug abuse problem and, despite having
received services several times, failed to successfully treat
the issue. Petitioner also failed to treat her mental health
issues, continued to abuse drugs throughout the proceedings,
and continued to associate with inappropriate people despite
the removal of her children. Finding that there was no
reasonable likelihood that petitioner could correct the
conditions of abuse and neglect in the near future and that
termination was necessary for the children's welfare, the
circuit court terminated petitioner's parental rights. It
is from the August 9, 2018, dispositional order that
Court has previously established the following standard of
review in cases such as this:
"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 without granting her an
improvement period. Petitioner contends that she should have
been granted an improvement period because she was
"working on" the conditions of abuse and neglect by
drug screening regularly, seeking inpatient treatment, and
maintaining contact with the DHHR. Alternatively, petitioner
argues that she should have been granted disposition pursuant
to West Virginia Code § 49-4-604(b)(5) so that she could
regain custody of the children if she ever rectified the
circumstances of abuse and neglect. We disagree.
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, 115, 778 S.E.2d 338, 345 (2015)
("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) ("[i]t is within the
court's discretion to grant an improvement period within
the applicable statutory requirements."). We have also
held that a parent's "entitlement to an improvement
period is conditioned upon the ability of the respondent to
demonstrate 'by clear and convincing evidence, that ...