STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
December 10, 2020
In re J.T. and L.B. EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 20-0445 (Wood County 19-JA-20 and 19-JA-21)
MEMORANDUM DECISION
Petitioner Mother E.T., by counsel Heather L. Starcher, appeals the Circuit Court of Wood
County’s March 6, 2020, order terminating her parental rights to J.T. and L.B. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee A. Niezgoda, filed a
response in support of the circuit court’s order. The guardian ad litem, Debra Lynn Steed, filed a
response on the children’s behalf in support of the circuit court’s order. On appeal, petitioner
argues that the circuit court erred in terminating her parental rights upon insufficient evidence, and
in denying her post-termination visitation with J.T.
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 February of 2019, the DHHR filed a child abuse and neglect petition alleging that
petitioner abused controlled substances, which negatively affected her ability to parent. Petitioner
admitted to using heroin, marijuana, unprescribed Suboxone intravenously, and pain pills. The
DHHR further alleged that a needle containing a clear liquid was observed next to then six-month-
old J.T.’s “pack-n-play,” where he slept. The DHHR also alleged that petitioner’s home was
unsanitary and without running water. L.B. was in her father’s custody at the time the petition was
filed, and petitioner contended that she exercised liberal visitation with that child. Petitioner
waived her preliminary hearing. Thereafter, the circuit court ordered the DHHR to arrange
supervised visitation between petitioner and the children upon receipt of two random drug screens
that were negative for controlled substances.
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).
1
Petitioner stipulated to the allegations in the petition in March of 2019, and the circuit court
adjudicated her as an abusing parent. Petitioner also moved for a post-adjudicatory improvement
period, which the circuit court granted. In June of 2019, the circuit court held a review hearing on
petitioner’s improvement period. Petitioner did not appear but was represented by counsel. Based
upon the representations of the DHHR, the circuit court terminated petitioner’s post-adjudicatory
improvement period.
At the subsequent dispositional hearing in July of 2019, petitioner and the DHHR jointly
moved to continue disposition based upon her representation that she had entered a substance
abuse detoxification facility. The circuit court granted that motion. Petitioner moved for a post-
dispositional improvement period in September of 2019, which was granted. Additionally, upon
the motion of the DHHR, the circuit court ordered petitioner to complete an inpatient substance
abuse treatment as an additional term of her improvement period. Petitioner’s post-dispositional
improvement period was reviewed and continued in October of 2019.
The circuit court reviewed petitioner’s post-dispositional improvement period again in
December of 2019. The DHHR reported that petitioner was noncompliant with multiple terms of
her improvement period. According to the DHHR, petitioner admitted to her case worker that she
relapsed on heroin. Additionally, petitioner had not appeared for random drug screening since
October of 2019, and, as a result, the DHHR suspended her supervised visitation with J.T.
Petitioner also failed to participate in adult life skills classes or individualized therapy. The DHHR
moved to continue petitioner’s improvement period to see if she would comply with substance
abuse treatment, which the circuit court granted.
The circuit court held the final dispositional hearing in March of 2020. Petitioner appeared
in person and by counsel. The DHHR presented petitioner’s case manager from Amity, an inpatient
substance abuse treatment facility. The case manager testified that petitioner committed four rule
violations on the fourth day of her treatment. The case manager explained that the facility offered
to enter into a “behavior contract” with petitioner and to allow her to remain in treatment, but she
declined and left the facility against medical advice on the fifth day. Petitioner testified that she
left the facility because she did not get along with the therapist. According to petitioner, she entered
into a different substance abuse treatment facility, known as the “Newness of Life” (“Newness”)
seventeen days after leaving Amity. Petitioner reported that she attended that program for twenty-
two days before leaving against medical advice. She explained that she left the “Newness” program
because she “did [not] feel she was receiving the treatment she needed.” Then, petitioner entered
into a “sober living home” called “A New Thing.” At the time of the dispositional hearing,
petitioner had been attending this program for seven days. She testified that the program would
last eight months. Further, petitioner testified that the last time she visited J.T. was in November
of 2019, due to her failure to participate in services and maintain contact with the DHHR. Petitioner
further testified that she participated in parenting classes only for “a couple weeks” and did not
complete her psychological evaluation as ordered. Petitioner conceded that she attended
individualized therapy only in August of 2019. Petitioner also mentioned that she had been sober
twenty-eight days, which placed her last substance use immediately before entering the “Newness”
program.
2
Ultimately, the circuit court found that there was no reasonable likelihood that petitioner
could substantially correct the conditions of neglect and abuse in the near future and that
termination of petitioner’s parental rights was necessary for the welfare of the children.
Accordingly, the circuit court terminated petitioner’s parental rights. Further, the circuit court
denied petitioner post-termination visitation with J.T., but permitted visitation with L.B. at the
discretion of that child’s guardian. The circuit court memorialized its decision by its March 6,
2020, order, which petitioner now appeals. 2
The Court has previously held:
“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 argues that the circuit court erred in terminating her parental rights
upon insufficient evidence that there was no reasonable likelihood that she could correct the
conditions of neglect and abuse in the near future. She asserts that the circuit court “did not
consider termination of custodial rights only,” which she argues was a more appropriate
disposition considering her attempts at substance abuse treatment. Further, petitioner argues that
termination of her parental rights to L.B. was erroneous because she was already in a permanent
placement with the father. Upon our review of the record, petitioner is entitled to no relief.
West Virginia Code § 49-4-604(c)(6) provides that a circuit court may terminate a parent’s
parental rights upon finding that “there is no reasonable likelihood that the conditions of neglect
or abuse can be substantially corrected in the near future” and that termination of parental rights is
necessary for the welfare of the children. Pursuant to West Virginia Code § 49-4-604(d)(3), a
circuit court may determine that there is no reasonable likelihood that the conditions of neglect or
abuse can be substantially corrected when
[t]he abusing parent or parents have not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts of social, medical, mental
2
J.T.’s unknown father’s parental rights were terminated below. According to the parties,
the permanency plan for that child is adoption in his current foster placement. L.B. remains in the
custody of her nonoffending father and has achieved permanency in his care.
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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.
Here, petitioner failed to follow through with a reasonable family case plan, despite an
ample opportunity to do so. The circuit court granted petitioner two improvement periods, yet
found that she was noncompliant in both instances. West Virginia Code § 49-4-610(4)(A) requires
that “the respondent shall be responsible for the initiation and completion of all terms of the
improvement period.” However, by petitioner’s own admission, she failed to substantially
participate in adult life skills and parenting classes, her psychological evaluation, individualized
therapy, or random drug screening, all of which were reasonable terms of her family case plan.
Moreover, petitioner’s failure to participate in random drug screening and her failure to maintain
consistent contact with the DHHR caused her supervised visitations with J.T. to be suspended.
“We have previously pointed out that the level of interest demonstrated by a parent in visiting his
or her children while they are out of the parent’s custody is a significant factor in determining the
parent’s potential to improve sufficiently and achieve minimum standards to parent the child.” In
re Katie S., 198 W. Va. 79, 90 n.14, 479 S.E.2d 589, 600 n.14 (1996) (citations omitted). Petitioner
was clearly aware the she had to participate in drug screening in order to visit with then-one-year-
old J.T., but she made no attempt to satisfy that obligation from November of 2019, through the
final dispositional hearing in March of 2020.
Most importantly, petitioner demonstrated an inability to follow through with an inpatient
substance abuse treatment program or curb her controlled substance abuse on her own. She
attended a detoxification program in July of 2019, but admittedly relapsed by using heroin. She
attempted the Amity treatment program, but she left after only five days of treatment. By her own
admission, she relapsed between leaving the Amity program and beginning the “Newness of Life”
program. At the final dispositional hearing, J.T. had been out of petitioner’s custody for over a
year, and petitioner had been sober for only twenty-eight days.
“[C]ourts are not required to exhaust every speculative possibility of
parental improvement . . . where it appears that the welfare of the child will be
seriously threatened, and this is particularly applicable to children under the age of
three years who are more susceptible to illness, need consistent close interaction
with fully committed adults, and are likely to have their emotional and physical
development retarded by numerous placements.” Syl. Pt. 1, in part, In re R.J.M.,
164 W.Va. 496, 266 S.E.2d 114 (1980).
Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4. As alleged in the petition, petitioner
exposed J.T. to dangerous circumstances by leaving a hypodermic needle filled with a clear liquid
by his bedside. Petitioner’s pursuit of substance abuse treatment, while admirable, was completely
speculative given her past unsuccessful attempts and her consistent, admitted drug use throughout
the proceedings below. Accordingly, we find no error in the circuit court’s finding that there was
no reasonable likelihood that the conditions of neglect and abuse could be substantially corrected
in the near future.
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To the extent that petitioner argues for a less-restrictive dispositional alternative, we have
previously held that
“[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(d)] . . . 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). Based upon the circuit court’s
finding, it did not err in terminating petitioner’s parental rights without the use of a less-restrictive
dispositional alternative, such as the termination of her custodial rights only. Furthermore, we find
no merit to petitioner’s argument that because L.B. achieved permanency, the termination of
petitioner’s parental rights to this child was erroneous. We have previously held that West Virginia
Code § 49-4-604 “permits the termination of one parent’s parental rights while leaving the rights
of the nonabusing parent completely intact, if the circumstances so warrant.” In re Emily, 208 W.
Va. 325, 344, 540 S.E.2d 542, 561 (2000). Further, “simply because one parent has been found to
be a fit and proper caretaker for [the] child does not automatically entitle the child’s other parent
to retain his/her parental rights if his/her conduct has endangered the child and such conditions of
abuse and/or neglect are not expected to improve.” Id. Petitioner endangered L.B.’s sibling through
her substance abuse and, as the circuit court found, that substance abuse was not expected to
improve. Accordingly, we find no error in the circuit court’s termination of petitioner’s parental
rights to L.B.
Finally, petitioner argues that the circuit court erred in denying her post-termination
visitation with J.T. She cites to notes she received from the visitation supervisor that J.T. enjoyed
visiting with petitioner and that she was appropriate during the visits. She believes that she enjoyed
a close emotional bond with J.T. This Court has held that
“[w]hen parental rights are terminated due to neglect or abuse, the circuit
court may nevertheless in appropriate cases consider whether continued visitation
or other contact with the abusing parent is in the best interest of the child. Among
other things, the circuit court should consider whether a close emotional bond has
been established between parent and child and the child’s wishes, if he or she is of
appropriate maturity to make such request. The evidence must indicate that such
visitation or continued contact would not be detrimental to the child’s well being
and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
446, 460 S.E.2d 692 (1995).
Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002). Although the evidence may
establish positive visitations between petitioner and J.T., petitioner fails to cite to any evidence
that continued contact with her would be in the child’s best interests or that continued visitation
would not be detrimental to the child. Further, J.T. was only six months old when petitioner’s
substance abuse necessitated his removal from her care, and “[o]ur cases indicate that a close
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emotional bond generally takes several years to develop.” In re Alyssa W., 217 W. Va. 707, 711,
619 S.E.2d 220, 224 (2005). Accordingly, we do not find that the circuit court erred in denying
petitioner post-termination visitation with J.T.
For the foregoing reasons, we find no error in the decision of the circuit court, and its March
6, 2020, order is hereby affirmed.
Affirmed.
ISSUED: December 10, 2020
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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