STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re A.J. and Z.S.
October 12, 2018
EDYTHE NASH GAISER, CLERK
No. 18-0298 (Raleigh County 2017-JA-010 and 011) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother N.S., by counsel P. Michael Magann, appeals the Circuit Court of
Raleigh County’s March 5, 2018, order terminating her parental rights to A.J. and Z.S.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
(“guardian”), Brandon L. Gray, filed a response on behalf of the children in support of the circuit
court’s order. J.S., the nonabusing father of Z.S., by counsel Timothy P. Lupardus, filed a
response in support of the circuit court’s order. On appeal, petitioner argues that the circuit court
erred in denying her a post-dispositional improvement period and terminating her parental rights.
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 January 10, 2017, the DHHR filed an abuse and neglect petition alleging that A.J. was
born addicted to substances and that her umbilical cord tested positive for benzodiazepines,
methadone, and marijuana. Petitioner also tested positive for the same substances at the time she
gave birth to the child. Additionally, the DHHR alleged that petitioner placed the child at risk at
the hospital by “forgetting to feed the child” and by placing the child on an open cot to sleep.
On July 12, 2017, petitioner stipulated to the allegations of abuse and neglect. Petitioner
was adjudicated as an abusing parent and was granted a post-adjudicatory improvement period.
Following the hearing, petitioner agreed to a parenting plan that required her to participate in
parenting skills, adult life skills services, and drug screens and complete an inpatient drug
treatment program. On September 20, 2017, petitioner was admitted into an inpatient substance
abuse treatment program. However, petitioner left the program on October 5, 2017, against
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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medical advice. Petitioner failed to obtain any additional treatment. On November 8, 2017, the
DHHR and the guardian filed a joint motion to terminate petitioner’s post-adjudicatory
improvement period due to her non-compliance.
On November 27, 2017, the circuit court held a hearing on the motion to terminate
petitioner’s post-adjudicatory improvement period. A service provider testified that she provided
services to petitioner four times in October of 2017, after she left the treatment facility. The
service provider explained that she gave petitioner the necessary information for her to apply to a
treatment facility, but petitioner failed to obtain treatment. The DHHR explained that, beginning
in February of 2017, petitioner was directed to submit to drug screens twice a week. However,
petitioner failed to appear for thirty-four screens and tested positive for substances on all of the
twenty-one screens that she submitted to. Further, the visitation supervisor testified that
petitioner scheduled seven visits with the children during her post-adjudicatory improvement
period. The visitation supervisor explained that petitioner cancelled two visits, appeared
intoxicated at one visit, and attended four visits. The DHHR also provided evidence that
caseworkers encouraged petitioner to seek treatment for her addiction multiple times, but
petitioner failed to do so. At the conclusion of the hearing, the circuit court found that petitioner
did not comply with the terms and conditions of her post-adjudicatory improvement period and
that she demonstrated a “habitual use of controlled substances for which she did not have a
prescription, an unwillingness to participate in programs offered, an unwillingness to be aware of
her need for help with issues, and . . . willfully refused to cooperate in the execution of her
family case plan.” Accordingly, the case was set for disposition.
On February 28, 2018, the circuit court held a dispositional hearing at which the DHHR
and the guardian moved to terminate petitioner’s parental rights. Petitioner did not appear for the
hearing because she entered into a treatment facility on February 24, 2018. However, she was
represented by counsel. The circuit court took judicial notice of the evidence presented at the
hearing on the motion to terminate petitioner’s post-adjudicatory improvement period. The
circuit court heard additional testimony regarding petitioner’s continued lack of effort to address
her addiction after the termination of her improvement period. The circuit court found that
petitioner made “minimal to non-existent” effort to address her substance abuse. The circuit
court also found no reasonable likelihood that petitioner could correct the conditions of abuse
and neglect in the near future and that termination of her parental rights was in the children’s
best interests. The circuit court ultimately terminated petitioner’s parental rights in its March 5,
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
2
According to respondents, A.J.’s father, D.J., is currently participating in a post-
adjudicatory improvement period. The permanency plan for A.J. is reunification with her father
or adoption by her paternal grandmother. Z.S.’s father, J.S., is a non-abusing parent and has full
custody of Z.S.
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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 not granting her a post-dispositional
improvement period. In support, she contends that she was making “sufficient progress and
improvement” in her current residential substance abuse treatment program. Additionally, she
argues that the children would not be harmed by allowing her additional time for improvement.
We do not find these arguments persuasive. Pursuant to West Virginia Code § 49-4-610(3)(D), a
circuit court may grant a parent an improvement period at disposition if “the [parent]
demonstrates that since the initial improvement period, the [parent] has experienced a substantial
change in circumstances. Further, the [parent] shall demonstrate that due to that change in
circumstances, the [parent] is likely to fully participate in the improvement period . . . .” West
Virginia Code § 49-4-610 also requires the parent to move, in writing, for an improvement
period, which petitioner did not do. Here, petitioner was previously granted a post-adjudicatory
improvement period. However, the record demonstrates that petitioner could not establish a
substantial change in circumstances since her initial improvement period or that she was likely to
fully participate in a new improvement period.
Although she argues that she was making “sufficient progress” in her most recent
treatment program, petitioner failed to successfully complete a treatment program during her
post-adjudicatory improvement period as required by her family case plan. In September of
2017, petitioner entered into a program and completed approximately fifteen days of treatment
before she left against medical advice. Petitioner’s improvement period was terminated in
November of 2017 and she did not enter into another treatment program until February of 2018.
Additionally, during her post-adjudicatory improvement period, petitioner failed to appear for
thirty-four screens and tested positive for substances on each of the twenty-one screens that she
submitted to. Further, petitioner scheduled seven visits with the children, but appeared to be
intoxicated at one visit and cancelled two visits. Based on this evidence, petitioner did not meet
the requisite burden to receive a post-dispositional improvement period.
Petitioner also argues that the circuit court erred in terminating her parental rights. 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) provides that no reasonable
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likelihood that the conditions of abuse or neglect can be substantially corrected exists when the
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 [parent has] 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 continued to abuse substances throughout the proceedings,
missed numerous drug screens, and tested positive for substances on the screens for which she
appeared. Additionally, she failed to complete a residential treatment program, as required by her
family case plan. Based on this evidence, it is clear that there was no reasonable likelihood that
petitioner could correct the conditions of abuse and neglect in the near future, and that
termination was in the children’s best interests. Therefore, we find no error in the circuit court’s
termination of petitioner’s parental rights.
Further, while petitioner argues that the circuit court erred in terminating her parental
rights without considering a less-restrictive dispositional alternative, we have held that
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, W. Va. Code
[§] 49-6-5 [now 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 W. Va. Code [§] 49-6-5(b) [now 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). For these reasons, termination
of petitioner’s parental rights was appropriate.
Lastly, due to the ongoing nature of A.J.’s father’s abuse and neglect proceedings, this
Court reminds the circuit court of its duty to establish permanency for the child. Rule 39(b) of
the Rules of Procedure for Child Abuse and Neglect Proceedings requires:
At least once every three months until permanent placement is achieved as
defined in Rule 6, the court shall conduct a permanent placement review
conference, requiring the multidisciplinary treatment team to attend and report as
to progress and development in the case, for the purpose of reviewing the progress
in the permanent placement of the child.
Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child
within twelve months of the date of the dispositional order. As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia
Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
placement of an abused and neglected child following the final dispositional order
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must be strictly followed except in the most extraordinary circumstances which
are fully substantiated in the record.
Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that
[i]n determining the appropriate permanent out-of-home placement of a
child under W.Va. Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4-
604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
home for the child and shall consider other placement alternatives, including
permanent foster care, only where the court finds that adoption would not provide
custody, care, commitment, nurturing and discipline consistent with the child’s
best interests or where a suitable adoptive home can not be found.
Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).
For the foregoing reasons, we find no error in the decision of the circuit court, and its
March 5, 2018, dispositional order is hereby affirmed.
Affirmed.
ISSUED: October 12, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Allen H. Loughry II, suspended and therefore not participating
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