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In re L.S.

Supreme Court of West Virginia

March 15, 2019

In re L.S., C.S.-1, and C.S.-2

          (Wood County 17-JA-245, 17-JA-246, and 17-JA-247)

          MEMORANDUM DECISION

         Petitioner Mother T.S., by counsel Jessica E. Myers, appeals the Circuit Court of Wood County's September 12, 2018, order terminating her parental rights to L.S., C.S.-1, and C.S.-2.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Brandolyn N. Felton-Ernest, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Katrina M. Christ, 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 denying her motion for a post-dispositional improvement period and terminating her parental rights instead of granting her a less-restrictive dispositional alternative.

         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.

         On September 8, 2017, the DHHR filed an abuse and neglect petition alleging that petitioner abused substances throughout her pregnancy with L.S.; tested positive for heroin, fentanyl, THC, methamphetamine, and amphetamines on her prenatal drug screens; and admitted that she used heroin approximately one week prior to giving birth. Child Protective Services ("CPS") initiated a protection plan that prohibited petitioner from being alone with the newborn child at any time. However, petitioner violated the terms of the protection plan on one occasion when she was alone with the child in a vehicle. The DHHR alleged that petitioner was unable to properly care for and supervise the children.

          On November 6, 2017, the circuit court held an adjudicatory hearing during which petitioner stipulated to the allegations of abuse and neglect and was granted a post-adjudicatory improvement period. Subsequent review hearings were held and petitioner was ordered to continue to participate in her post-adjudicatory improvement period until April of 2018, when the improvement period expired. During a hearing held on April 16, 2018, the DHHR informed the circuit court that petitioner overdosed on heroin while attending a substance abuse treatment program. Both the DHHR and the guardian objected to petitioner receiving any additional services or transportation to treatment. However, the circuit court ordered that petitioner continue to participate in drug screens and find her own transportation to substance abuse treatment, if she wished to continue to participate. Additionally, the DHHR and the guardian jointly moved to discontinue visitation between petitioner and the children, which the circuit court granted.

         On May 21, 2018, the circuit court held a dispositional hearing during which petitioner requested a post-dispositional improvement period. Both the DHHR and the guardian opposed petitioner's motion. The circuit court held petitioner's motion in abeyance and continued the dispositional hearing. On June 25, 2018, the circuit court held a final dispositional hearing in the matter. The DHHR moved for petitioner to immediately take a drug screen at the probation office, which the circuit court granted. After a short recess to enable petitioner to take the drug screen, the hearing resumed and the drug screen came back positive for methamphetamine and amphetamine. Petitioner admitted to using substances and did not challenge the results of the screen. Evidence was presented that petitioner completed a twenty-eight-day substance abuse treatment program a week prior to the dispositional hearing. However, upon her release from the program, petitioner resumed her substance use. In its dispositional order, the circuit court noted that petitioner "continues to choose substances over her children." The circuit court found no reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near future due to her substance abuse issues. The circuit court further found that it was in the children's best interests to terminate petitioner's parental rights and that the children needed continuity of care and caretakers. Ultimately, the circuit court denied petitioner's motion for a post-dispositional improvement period and terminated her parental rights in its September 12, 2018, dispositional order.[2] It is from this 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, this Court finds no error in the proceedings below.

         First, petitioner argues that the circuit court erred in denying her motion for a post-dispositional improvement period. In support, petitioner acknowledges her substance abuse issues and asserts that she needs additional time to continue to seek treatment. We do not find this argument persuasive.

         West Virginia Code § 49-4-610(3)(D) provides that when a parent has previously been granted an improvement period, the parent must prove that "since the initial improvement period, the [parent] has experienced a substantial change in circumstances" and that "due to that change in circumstances, the [parent] is likely to fully participate in the improvement period[.]" Additionally, we have stated that "West Virginia law allows the circuit court discretion in deciding whether to grant a parent an improvement period." In re M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015). Here, petitioner failed to provide evidence that she experienced a change in circumstances that would have demonstrated that she was likely to fully participate in a post-dispositional improvement period. In fact, petitioner continued to abuse substances throughout the proceedings. While she argues that she "made progress in her treatment and was continuing to seek treatment," the record shows that following her completion of a treatment program, petitioner resumed her substance abuse. Based on this evidence, the circuit court did not err in denying petitioner's motion for a post-dispositional improvement period.

         Next, petitioner argues that the circuit court erred in terminating her parental rights instead of granting her a less-restrictive dispositional alternative. Petitioner admits that at the time of the dispositional hearing, she was "still struggling with substance abuse but was attempting to correct that deficiency." Petitioner contends that due to her efforts to seek treatment for substance abuse, "there is a definite and reasonable likelihood that [she] can substantially correct the conditions of abuse and neglect in the near future." We disagree.

         West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental 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 welfare. West Virginia Code § 49-4-604(c)(1) clearly indicates that a situation where there is no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected includes one in which the abusing parent has "habitually abused or [is] addicted to alcohol, controlled substances or drugs, to the extent that proper parenting skills have been seriously impaired and the person or persons have not responded to or followed through the recommended and appropriate treatment which could have improved the capacity for adequate parental functioning[.]" As discussed above, petitioner failed to overcome her substance addiction during the proceedings. The record shows that petitioner completed a substance abuse treatment program, but resumed her substance abuse after she was discharged from the program. The circuit court specifically found that petitioner "continues to choose substances over her children." Based on the evidence of petitioner's continued substance abuse, it is clear that there was no reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near future and that the termination of her parental rights was in the children's best interests.

         Further, while petitioner argues that "given [her] efforts, a less drastic dispositional alternative should have been ...


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