STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: B.F. and R.F. June 21, 2016
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 16-0078 (Wyoming County 13-JA-75 and 13-JA-76) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother M.R., by counsel Thomas H. Evans III, appeals the Circuit Court of
Wyoming County’s December 28, 2015, order terminating her parental rights to B.F. and R.F.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L.
Evans, filed its response in support of the circuit court’s order and a supplemental appendix. The
guardian ad litem, Timothy P. Lupardus, 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 and failing to make adequate findings.2
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 April of 2013, the DHHR filed an abuse and neglect petition alleging that petitioner
abused B.F., then three years old, and R.F., then eleven months old, by leaving them in an
unsanitary home with an unidentified male. The DHHR further alleged that, while unattended,
B.F. ran out into the road and was almost struck by a vehicle. Specifically, on November 5,
2013, two DHHR workers were driving by petitioner’s home when B.F. ran from behind a
parked car, into the road, and was almost hit by the workers’ vehicle. The workers asked the
child where her mother was and she replied “in the mountains.” An unidentified male came from
petitioner’s home and took the child inside. The male did not respond to the workers’ questions
but the workers were later informed that petitioner was “living on Bud Mountain” with her
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).
2
Because the permanency hearing in this matter took place after May 20, 2015, the day
the revisions to West Virginia Code §§ 49-1-101 through 49-7-304 became effective, the Court
will apply the revised versions of those statutes on appeal.
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boyfriend. The workers also observed animal feces throughout petitioner’s home. The DHHR
also alleged that R.F. suffered from severe diaper rash. The DHHR noted that this was the
second removal of petitioner’s children. According to the DHHR, the first removal was in 2012
and resulted from petitioner’s drug abuse.
In November of 2013, the circuit court held a preliminary hearing wherein petitioner
waived her right to a preliminary hearing. The circuit court found that imminent danger existed
to the children’s physical well-being and ordered their removal; that petitioner submit to a
psychological evaluation; and that she submit to random drug screening. Petitioner moved the
circuit court for a pre-adjudicatory improvement period and the circuit court granted her motion.
In April of 2014, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the allegations contained in the petition. The circuit court accepted petitioner’s
stipulations and found that she failed to protect the children from abuse and neglect. Petitioner
moved the circuit court for a post-adjudicatory improvement period and the circuit court granted
her motion. The circuit court ordered that petitioner remain drug free, submit to random drug and
alcohol screenings, and enroll in an in-patient drug and alcohol rehabilitation program.
Petitioner’s improvement period was extended several times thereafter.
In October of 2014, the circuit court held a dispositional hearing wherein petitioner failed
to appear but was represented by counsel. The DHHR’s workers testified that petitioner initially
participated in both random drug and alcohol screening and visitation with the children. They
testified that petitioner signed a family case plan and agreed to address her substance abuse
issues. They also testified that petitioner entered substance abuse rehabilitation programs but left
before completing said programs because she refused to submit to random drug screens and
failed to abide by program rules. Testimony was also presented that, during the pendency of this
case, petitioner was arrested for fleeing from a police officer’s custody and jumped from a
moving vehicle while intoxicated. Following the presentation of the evidence, the circuit court
noted that that the children had remained in foster care for approximately two years. The circuit
court found that petitioner failed to take advantage of her extended improvement period, attend
multidisciplinary team (“MDT”) meetings and court hearings, and comply with services. The
circuit court further found that petitioner failed multiple drug and alcohol screens, continued to
have problems with law enforcement, and failed to participate in an in-patient drug and alcohol
rehabilitation program. The circuit court determined that petitioner failed to make the changes
needed to correct her parenting deficiencies and found that there was no reasonable likelihood
that the conditions of abuse and neglect could be substantially corrected in the near future.
Accordingly, the court determined that terminating petitioner’s parental rights was in the
children’s best interests and did so by order dated December 28, 2015. It is from this order that
petitioner now 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
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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 first argues that the circuit court erred in terminating her parental
rights because the circuit court failed to provide her with proper notice of the dispositional
hearing. Rule 31 of the Rules of Child Abuse and Neglect Proceedings provides that “[n]otice of
the date, time, and place of the disposition hearing shall be given to all parties, their counsel, and
persons entitled to notice and the right to be heard.” She provides no evidentiary support that her
notice was improper. The DHHR filed its petition to terminate petitioner’s parental rights in
April of 2015. An order setting the date of the dispositional hearing was filed in May of 2015.
The May of 2015 dispositional hearing was continued until July of 2015, and the circuit court set
another dispositional hearing date for October of 2015, in that same order. It is important to note
that petitioner attended all of the hearings prior to the dispositional hearing. In the case at hand,
petitioner was the only party that failed to appear at the October of 2014 dispositional hearing
and she presents no evidence indicating that she did not receive proper notice, other than her
contention. Based on the record presented, we find no merit to petitioner’s assignment of error.
Moreover, the record is clear that the terms of petitioner’s post-adjudicatory improvement
period required her to remain drug free and complete an in-patient drug and alcohol
rehabilitation program, among other requirements. Pursuant to West Virginia Code § 49-4
604(c)(3), a situation in which there is no reasonable likelihood that the conditions of abuse or
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 of social, medical,
mental health or other rehabilitative agencies designed to reduce or prevent the
abuse or neglect of the child, as evidenced by the continuation or insubstantial
diminution of conditions which threatened the health, welfare or life of the
child[.]
Furthermore, the record is devoid of any evidence that petitioner completed an in-patient
drug and alcohol rehabilitation program. Ultimately, petitioner refused to screen for drugs and
alcohol, visits with the children, answer her door for service providers, and participate in the
abuse and neglect proceedings. As such, it is clear that the evidence establishes petitioner’s
failure to comply with services. Pursuant to West Virginia Code § 49-4-604(a)(6), circuit courts
are directed to terminate parental rights upon these findings.
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Moreover, we have previously held that “‘courts are not required to exhaust every
speculative possibility of parental improvement . . . where it appears that the welfare of the child
will be seriously threatened . . .’ Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114
(1980).” Syl. Pt. 4, in part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). As noted above,
the circuit court had serious concerns about petitioner’s ability to remain drug-free and parent her
children. As such, we find no error in the circuit court terminating her parental rights. Therefore,
given the circumstances presented herein, we find no merit to petitioner’s second assignment of
error.
Finally, petitioner argues that the circuit court failed to make a plausible account of the
evidence and, as a result, failed to make an appropriate ultimate ruling. In support of her
argument, petitioner contends that because she failed to appear for the dispositional hearing, the
circuit court made its ruling without her testimony. She also contends that her multiple positive
drug screens and her failure to appear at the dispositional hearing led to the termination of her
parental rights.
Petitioner is correct that her failure to make progress during her post-adjudicatory
improvement period led to the termination of her parental rights. The record indicates that
petitioner signed a family case plan, agreed to address her substance abuse issues, and enrolled in
substance abuse rehabilitation programs but left before completing the programs because she
refused to submit to random drug screens and failed to abide by program rules. The record
further indicates that the children remained in foster care for approximately two years because
she failed to participate in services. As such, the circuit court was presented with sufficient
evidence to find that there was no reasonable likelihood that petitioner could substantially correct
the conditions of abuse and neglect in the near future. Given the circumstances presented in this
case, we find no error in the circuit court’s order terminating petitioner’s parental rights to the
children.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 28, 2015, order is hereby affirmed.
Affirmed.
ISSUED: June 21, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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