Submitted: January 16, 2019
from the Circuit Court of Mercer County The Honorable William
J. Sadler, Judge Case No. 16-JA-152
Shannon L. Baldwin, Esq. Baldwin Law Office, PLLC Bluefield,
West Virginia Counsel for Petitioner M.S.
Patrick Morrisey, Esq. Attorney General Brandolyn N.
Felton-Ernest, Esq. Assistant Attorney General Charleston,
West Virginia Counsel for Respondent DHHR
R. Linkous, Esq. Mercer County Public Defender Corporation
Princeton, West Virginia Counsel for Respondent C.O.
Michael Magann, Esq. Magann Law Office, PLL CBluefield, West
Virginia Guardian ad Litem for B.S.
"'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)." Syllabus Point 1, In re Cecil T.,
228 W.Va. 89, 717 S.E.2d 873 (2011).
"A parent has the natural right to the custody of his or
her infant child, and, unless the parent is an unfit person
because of misconduct, neglect, immorality, abandonment, or
other dereliction of duty, or has waived such right, or by
agreement or otherwise has permanently transferred,
relinquished or surrendered such custody, the right of the
parent to the custody of his or her infant child will be
recognized and enforced by the courts." Syllabus Point
1, in part, Nancy Viola R. v. Randolph W., 177 W.Va.
710, 356 S.E.2d 464 (1987).
"Although parents have substantial rights that must be
protected, the primary goal in cases involving abuse and
neglect, as in all family law matters, is the health and
welfare of the child. Thus, in furtherance of the goals of
balancing the substantial parental rights and notice of the
children's best interests, the least restrictive
alternative is employed." Syllabus Point 3, In re
Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).
("Petitioner Father") appeals the March 30, 2018,
disposition order of the Circuit Court of Mercer County which
terminated the custodial rights, but left intact the parental
rights, of Respondent Mother C.O. ("C.O") to the
minor child B.S. Petitioner Father has sole custody of B.S.
In this appeal, Petitioner Father asserts that the circuit
court erred by failing to terminate C.O.'s parental
rights. By contrast, C.O. argues that the circuit court
"did not err when it terminated C.O.'s custodial
rights instead of [her] full parental rights" and asks
this Court to affirm the circuit court's order.
on our established standard of review, we find that the
circuit court's account of the evidence is plausible in
light of the record viewed in its entirety. Therefore, we
affirm the circuit court's order terminating C.O.'s
custodial rights, but leaving intact her parental rights. We
note, however, that the circuit court retains jurisdiction
over this matter and has the ability to terminate C.O.'s
parental rights in the future if it determines that such
termination is in the child's best interest.
FACTUAL AND PROCEDURAL BACKGROUND
and Petitioner Father are the parents of B.S. She was born in
2012. On August 10, 2016, the Department of Health and Human
Resources ("DHHR") filed an abuse and neglect
petition alleging that B.S. had been exposed to drug use and
domestic violence while living with C.O. The petition
alleged that C.O., C.O.'s boyfriend, C.G., and C.O.'s
stepfather, M.B., lived together in the same residence.
According to the petition, C.O., C.G., and M.B. were using
"heroin, meth, [and] pills" in the residence. The
petition provides that "approximately two weeks ago,
[C.O.'s boyfriend C.G.] overdosed and had to be taken to
the hospital. Narcan was required to save his life. The child
[B.S.] was present during this drug usage." Further, the
petition noted that "there is no food in the home. The
caregivers sell their food stamps for drug money. [B.S] will
stray to the homes of neighbors to ask for food and
drink." During an interview with the DHHR, B.S. reported
that her mother's boyfriend C.G. "fights with her
mommy . . . has bit her mom on the stomach and arm, as well
as having dragged mom by the foot to her room. [B.S.]
disclosed that she saw these things and that she went to
initially admitted to using marijuana but denied any other
substance abuse. However, medical records obtained by the
DHHR demonstrated that C.O. went to the hospital on June 23,
2016, and admitted to taking "suboxone, meth, and
marijuana." A medical record from July 10, 2016, showed
that C.O. had overdosed on heroin. The medical record
provides that C.O. admitted to "heroin or dilaudid use .
. . [and] tested positive for Amphetamines, Cannabinoids, and
Opiates at that time. [C.O.] left the hospital against
DHHR interviewed Petitioner Father who stated that C.O. had a
substance abuse problem. Petitioner Father said that C.O.
told him she was using heroin a few months prior to July
2016. According to the abuse and neglect petition, Petitioner
Father had observed C.O. under the influence of drugs in
"early July 2016. [Petitioner Father] left [B.S.] in
C.O.'s care and has not intervened as far as filing for a
change in custody or reporting concerns." The petition
therefore named Petitioner Father as a respondent, providing
that he "has neglected [B.S.] due to failure to protect
the child from exposure to substance abuse."
circuit court entered an initial order on August 10, 2016,
finding that imminent danger existed to the well-being of
B.S. "due to the substance abuse in the home." The
court transferred custody of B.S. to the DHHR. The circuit
court held an adjudicatory hearing on October 7, 2016. At
this hearing, C.O. stipulated to neglecting B.S. due to
substance abuse. The circuit court adjudicated her as an
abusing parent and granted her motion for a post-adjudicatory
improvement period pursuant to W.Va. Code § 49-4-610(2)
the circuit ordered that Petitioner Father be granted a
pre-adjudicatory improvement period pursuant to W.Va. Code
§ 49-4-610(1),  and that B.S. be placed in his custody. On
January 30, 2017, the circuit court entered an order finding
that Petitioner Father's pre-adjudicatory improvement
period was "a success." The circuit court ordered
that B.S. would remain in his custody.
of her post-adjudicatory improvement period, C.O.
participated in a multi-disciplinary treatment team meeting
which resulted in the creation of a family case plan. This
plan set forth the following requirements for C.O. before she
could be reunified with B.S.: "that she address her
substance abuse issues, successfully complete substance abuse
services, remain substance free, participate in parenting
skills and adult life skills classes, address domestic
violence issues, and be self-sufficient."
entered a sober living facility in February 2017 and remained
there until September 2017. A number of review orders entered
by the circuit court during this time reflect the success
C.O. had while residing at the sober living facility. In
April 2017, the circuit court entered the following order:
"The Court is advised that [C.O.] is doing well and
GRANTS an extension to her post-adjudication improvement
period." During a review hearing on July 14, 2017, the
circuit court found that C.O. "is doing very well at
[the sober living facility]. She has completed all classes
through the Day Report Center, her drug screens are negative,
and she is complying with all services. Visitation has been
increased to three nights and four days with the child [B.S.]
at the [sober living facility]." On August 11, 2017, the
circuit court ordered that C.O. "be allowed to pick up
her child, [B.S.], when [C.O.] is exercising her custody and
visitation with [B.S.]."
moved out of the sober living facility in September 2017. The
circuit court held an emergency hearing regarding C.O.'s
visitation with B.S. on September 21, 2017. In its order
following this hearing the circuit court provided "the
Court is advised that [C.O.] has relapsed in her drug use.
[Petitioner] Father wants to stop all visitation by
[C.O.]" The court ordered that C.O. submit to a drug
screen and that she only have supervised visitation with B.S.
Further, the court ordered that if C.O. was impaired,
"the visit shall not occur."
next review hearing occurred in October of 2017. During this
hearing, the guardian ad litem recommended that C.O.'s
visitations be suspended until she enrolled in a substance
abuse treatment program. The circuit court agreed, granted
the guardian ad litem's motion, and recommended that C.O.
return to the sober living facility. During a November 17,
2017, review hearing, the DHHR advised the circuit court that
C.O. "relapsed in September on cocaine, opiates, and
marijuana. [C.O.] admitted to using suboxone. [C.O.] is
currently pregnant, has not entered a detox program and is
not complying with services."
January 23, 2018, the DHHR filed a motion to terminate
C.O.'s parental rights. The DHHR's motion provided
that after C.O. moved out of the sober living facility in
September 2017, she
did not remain substance free; she refused to seek additional
substance abuse treatment as ordered by the Court, and she
has not successfully complied with the Family Case Plan.
[C.O.] is no longer in contact with the Department and her
whereabouts are currently unknown. [C.O.] cannot show this
Court by clear and convincing evidence that she is likely to
fully participate in any further improvement period. . . .
There is no reasonable likelihood that the conditions of
neglect can be substantially corrected in the near future,