In re M.W. and J.B.-R. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re M.W. and J.B.-R. March 13, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 19-0630 (Wood County 18-JA-148 and 18-JA-149) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother S.B., by counsel Courtney L. Ahlborn, appeals the Circuit Court of
Wood County’s June 24, 2019, order terminating her parental rights to M.W. and J.B.-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, Jeffrey B. Reed, 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 without imposing 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.
In September of 2018, the DHHR filed an abuse and neglect petition against petitioner
alleging that her chronic drug abuse resulted in the abuse and/or neglect of her children. On
October 9, 2018, petitioner waived her right to a preliminary hearing. In December of 2018, the
circuit court held an adjudicatory hearing, wherein it accepted petitioner’s stipulation to the
allegations in the petition and granted her a post-adjudicatory improvement period. Review
hearings were held in January and February of 2019, wherein the circuit court learned that
petitioner enrolled into a five-to-ten-day substance abuse stabilization program, but later refused
to sign a release of information for the DHHR to access her records from the program. At the next
status hearing, petitioner tested positive for various illegal substances, admitted that she needed
further treatment, and signed her family case plan. According to the case plan, petitioner was
required to regularly submit to drug screening, attend supervised visitations, attend adult life skills
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
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and parenting classes, and complete treatment for her drug addiction. In April of 2019, petitioner
again enrolled into a short-term substance abuse stabilization program, but failed to follow through
with the staff’s recommendations upon release.
The circuit court held the final dispositional hearing in June of 2019, wherein petitioner
failed to appear, but counsel represented her and requested that the circuit court terminate
petitioner’s custodial rights instead of her parental rights. The DHHR presented evidence that
petitioner had neither stayed in contact with the DHHR or her counsel, completed the
recommendations of the substance abuse stabilization program, nor submitted to drug screening
since May of 2019. Ultimately, the circuit court concluded that there was no reasonable likelihood
that the conditions of abuse and neglect could be substantially corrected in the near future and that
it was in the children’s best interest to terminate petitioner’s parental rights. Accordingly, the
circuit court terminated petitioner’s parental rights by its June 24, 2019, order. It is from this
dispositional order that petitioner appeals.2
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).
On appeal, petitioner alleges that the circuit court erred in terminating her parental rights
instead of imposing a less-restrictive dispositional alternative. According to petitioner, she needed
more time to correct her substance abuse addiction and claims that the children would not have
been harmed because they were placed with relatives. We disagree, and note that, on appeal,
petitioner cannot establish that the circuit court’s findings necessary for termination were in error.
West Virginia Code § 49-4-604(b)(6) permits a circuit court 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 welfare of the
2
M.W.’s father voluntarily relinquished his parental rights and J.B.-R.’s father’s parental
rights were involuntarily terminated. According to the DHHR, the permanency plan for M.W. is
adoption by his paternal aunt and the permanency plan for J.B.-R. is adoption by her maternal
grandmother.
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children. Further, pursuant to West Virginia Code § 49-4-604(c)(3), a situation in which there is
no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected
includes one in which “[t]he abusing parent . . . [has] not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts . . . designed to reduce or prevent the
abuse or neglect of the child[ren].” Here, it is clear that the record supports the circuit court’s
finding that there was no reasonable likelihood that petitioner could substantially correct the
conditions of abuse and neglect, given her untreated addiction and noncompliance during the
proceedings. Below, petitioner failed to appear for her dispositional hearing, communicate with
counsel or the DHHR, or follow through with any rehabilitative efforts required by her
improvement period. While it is true that petitioner twice enrolled in a short-term substance abuse
stabilization program, the record indicates that she never progressed and completely ceased
participating in services as of the time of the dispositional hearing. In fact, petitioner makes no
claim that she successfully completed the terms and conditions of her post-adjudicatory
improvement period. Additionally, the record shows that the children’s welfare required
termination of petitioner’s parental rights because her admitted substance abuse prevented her
from properly supervising the children.
To the extent petitioner claims that she should have been granted a less-restrictive
disposition because she may eventually be able to correct the conditions of abuse and neglect, we
note that “[c]ourts are not required to exhaust every speculative possibility of parental
improvement . . . where it appears that the welfare of the child[ren] will be seriously threatened.”
Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4, in part (citation omitted). Moreover,
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [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 [West
Virginia Code § 49-4-604(c)] that conditions of neglect or abuse can be
substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d
114 (1980).
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Accordingly, we find no error
in the circuit court’s decision to terminate petitioner’s parental rights upon findings that there was
no reasonable likelihood the conditions of abuse and neglect could have been substantially
corrected in the near future and that termination was necessary for the children’s welfare.
For the foregoing reasons, we find no error in the decision of the circuit court, and its June
24, 2019, order is hereby affirmed.
Affirmed.
ISSUED: March 13, 2020
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CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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