FILED
STATE OF WEST VIRGINIA June 22, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re A.W.
No. 19-1183 (Kanawha County 19-JA-238)
MEMORANDUM DECISION
Petitioner Grandmother A.B., by counsel Joseph H. Spano Jr., appeals the Circuit Court of
Kanawha County’s November 20, 2019, order terminating her guardianship rights to A.W. 1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N.
Felton-Ernest, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), J. Rudy Martin, filed a response on behalf of the child also in support of the circuit
court’s order. On appeal, petitioner argues that the circuit court erred in denying her motion for a
post-adjudicatory improvement period and denying her post-termination visitation.
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 2019, the DHHR filed a child abuse and neglect petition alleging that petitioner
exposed the child to drug use. The DHHR alleged that petitioner was A.W.’s grandmother as well
as his legal guardian. According to the petition, the DHHR received several referrals that multiple
adult family members resided in petitioner’s home where they abused drugs. The DHHR also
alleged that several children, including A.W., resided in the home while various adults were using
drugs. 2 According to the petition, petitioner abused methamphetamine and Subutex inside the
home with the biological mother. The DHHR alleged that there was a protective order prohibiting
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
The proceedings in circuit court concerned additional children that are not petitioner’s
biological grandchildren. Petitioner raises no assignment of error regarding these children.
Accordingly, these children are not the subject of this memorandum decision.
1
A.W.’s biological father from having contact with the child, but that petitioner allowed the father
to have contact with the child inside her home. The DHHR alleged that the father used
methamphetamine and Subutex inside petitioner’s home as well. A Child Protective Services
“(CPS”) worker interviewed the mother at petitioner’s home three times, and each time the mother
denied using drugs. The CPS worker observed marks and scars on the mother’s hands and wrists
that appeared to be from intravenous drug use. The CPS worker noted that the mother admitted
that the father was using drugs in the home but then later denied the same. According to the
petition, the CPS worker interviewed A.W. twice, and he disclosed that his father resided in
petitioner’s home. The DHHR alleged that A.W. was forced to leave petitioner’s home at one point
and live with his aunt, who he says beat and mistreated him. The DHHR alleged that A.W.
disclosed witnessing his parents abusing drugs and engaging in domestic violence in petitioner’s
home. As a result, the DHHR alleged that petitioner failed to provide a safe and stable home,
engaged in substance abuse in front of the child, and neglected the child’s educational and medical
needs. Later that month, the circuit court held a preliminary hearing wherein it granted the DHHR
legal and physical custody of the child and ordered the DHHR to provide petitioner with services,
including parenting and adult life skills classes and drug screens.
The circuit court held an adjudicatory hearing in May of 2019 wherein petitioner stipulated
to abusing drugs and exposing the child to domestic violence in the home. The circuit court
accepted petitioner’s stipulation and adjudicated her as an abusing and neglecting guardian.
Petitioner then moved for a post-adjudicatory improvement period. The circuit court held the
motion in abeyance pending petitioner’s dispositional hearing.
In July of 2019, the circuit court held a hearing wherein it considered petitioner’s pending
motion for a post-adjudicatory improvement period. At the hearing, the DHHR and guardian
presented concerns about petitioner’s new drug treatment program, her compliance with that
program, and variations that had been detected in her drug screen results. However, the DHHR
informed the circuit court that it was not seeking termination of petitioner’s rights at that time. As
a result, the circuit court again held petitioner’s motion for an improvement period in abeyance
and ordered that petitioner present medical testimony as to her treatment program to determine the
treatment program’s efficacy and compliance with state laws. The circuit court also ordered that
petitioner provide any medical evidence that would explain the variations in her drug screen
results.
The circuit court held a hearing in September of 2019 where petitioner again moved for a
post-adjudicatory improvement period. At the hearing, a CPS worker testified that petitioner was
complying with some services, including adult life skills classes and individualized parenting. The
worker also testified that there were unexplained fluctuations in petitioner’s drug screen results for
Suboxone, which suggested levels beyond her prescriptions. The DHHR moved to admit
petitioner’s drug screen from the day of the hearing, which was positive for methamphetamine and
Suboxone. The circuit court admitted the drug screen into evidence. Next, petitioner’s physician
testified as to petitioner’s prior drug screens. The physician testified that petitioner was
noncompliant with her prescribed Suboxone treatment, had received two prior warnings about
noncompliance, and would be removed from the program if she violated the program’s policies
again. Finally, petitioner testified that she tested positive for methamphetamine because she was
drugged by her daughter who was attempting to make her look irresponsible. As such, petitioner
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denied knowingly using methamphetamine, despite contrarily admitting it was “not likely” that
her drink was spiked with that drug. Petitioner also testified that she would stop using drugs, if
granted an improvement period. After considering the evidence, the circuit court found petitioner’s
testimony incredible and that she attempted to manipulate her drug screen results provided to the
circuit court. The circuit court also found that petitioner could not be and would not be a suitable
guardian. As a result, the circuit court ordered that the DHHR cease providing petitioner with
services unless she entered a residential drug treatment program. Finally, the circuit court ordered
the DHHR to assist petitioner in locating a nine-to-twelve-month rehabilitation program.
The next month, the circuit court held the final dispositional hearing. At the hearing, a CPS
case manager testified and recommended the termination of petitioner’s guardianship rights. The
CPS case manager testified that petitioner tested positive for methamphetamine on seven or eight
occasions and was close to being removed from her Suboxone program. The CPS manager further
testified that petitioner was ordered to find a nine-to-twelve-month treatment program, but that she
failed to even finish a seven-day detoxication program necessary to transition her into an inpatient
program. The CPS manager testified that petitioner signed herself out of the seven-day program
and then failed to participate in further scheduled drug screens. The DHHR also moved for a
Facebook post that petitioner wrote to be entered into evidence. In that social media post, petitioner
wrote that she would not participate in long-term drug treatment and that it was unfair that the
children’s parents’ parental rights were terminated. The circuit court noted that petitioner had
signed a confidentiality order about the proceedings in April of 2019. The circuit court advised the
parties that it would give petitioner an opportunity to testify and demonstrate that her actions were
not contempt of the court’s orders. As petitioner began to testify, the circuit court suspended
petitioner’s testimony and directed petitioner’s counsel to confer with petitioner and advise her of
the consequences of contempt before she testified further. Upon her return, petitioner stated she
wanted to present her case to a jury as to whether she should be held in contempt. In response, the
circuit court directed the DHHR to subpoena Facebook to obtain copies of similar posts by
petitioner for the jury’s consideration. Next, the DHHR presented the testimony of a court
appointed special advocate, who testified to additional Facebook posts authored by petitioner.
Petitioner objected to this testimony. The circuit court overruled petitioner’s objection and directed
the DHHR to provide petitioner with copies of the additional posts.
At the conclusion of the dispositional hearing, the circuit court found that petitioner failed
to make sufficient efforts to rectify the conditions of abuse and neglect and follow through with
the case plan and other services. The circuit court also found that petitioner attempted to justify
her noncompliance in an indefensible manner, failed to submit evidence that she admitted herself
into a drug rehabilitation program, and failed to participate in required drug screens. Ultimately,
the circuit court found that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and neglect in the near future and that termination of her guardianship rights
was necessary for the child’s welfare. The circuit court terminated petitioner’s guardianship rights
by order entered on November 20, 2019. The circuit court also ordered that petitioner cease
visitation with A.W. or any of the children involved in the proceedings because she presented a
danger to all of the children. It is from this dispositional order that she now appeals. 3
3
The parents’ parental rights to the child were terminated below. The permanency plan is
for the child to be adopted by his current foster family.
3
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).
Petitioner argues that the circuit court erred in denying her a post-adjudicatory
improvement period because she acknowledged the issues of abuse and neglect and took steps to
remedy them. Petitioner argues that she attended parenting and adult life skills classes, participated
in random drug screens, and attended visits with the child. According to petitioner, all of her drug
screens ordered by the circuit court were negative. Petitioner admits that she failed to participate
in a long-term drug treatment program but claims that she stopped using Suboxone on her own
within nineteen days. As such, petitioner asserts that she showed sufficient improvement to warrant
the granting of an improvement period. Upon our review, we find that petitioner is entitled to no
relief.
West Virginia Code § 49-4-610(2)(B) provides that the circuit court may grant a parent a
post-adjudicatory improvement period when the parent “demonstrates, by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period.” “This Court
has explained that ‘an improvement period in the context of abuse and neglect proceedings is
viewed as an opportunity for the . . . parent to modify his/her behavior so as to correct the
conditions of abuse and/or neglect with which he/she has been charged.’” In re Kaitlyn P., 225 W.
Va. 123, 126, 690 S.E.2d 131, 134 (2010) (citation omitted). However, the circuit court has
discretion to deny an improvement period when no improvement is likely. See In re Tonjia M.,
212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002). Further, we have previously held that
[i]n order to remedy the abuse and/or neglect problem, the problem must first be
acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator
of said abuse and neglect, results in making the problem untreatable and in making
an improvement period an exercise in futility at the child’s expense.
In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted).
4
While petitioner avers that she showed some compliance with services, the record shows
that petitioner failed to correct the conditions of abuse and neglect that led to filing of the abuse
and neglect petition. Specifically, the circuit court found that petitioner continued to abuse drugs
throughout the proceedings, despite her supposedly negative drug screens. Although petitioner
denies that she manipulated her drug screens or abused controlled substances, such as
methamphetamine, CPS workers and her own physician testified to the contrary. Petitioner
testified that she did not knowingly use methamphetamine and claimed that her daughter put the
drug in her flavored water to punish her. However, petitioner admitted that her own story was
“unlikely” during her testimony. As a result, the circuit court found her testimony incredible. On
appeal, we decline to disturb the court’s credibility determination with regard to this testimony.
See Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997) (“A reviewing
court cannot assess witness credibility through a record. The trier of fact is uniquely situated to
make such determinations and this Court is not in a position to, and will not, second guess such
determinations.”).
Further, petitioner failed to participate in a long-term drug rehabilitation program despite
the circuit court’s order. In fact, petitioner does not dispute that she failed to successfully complete
a seven-day detoxication program that would transition into a nine-to-twelve-month treatment
program. Petitioner asserts that she completed detoxication from Suboxone on her own accord
within nineteen days. However, petitioner provides no evidence to support this assertion. On the
contrary, the evidence shows that petitioner was actively abusing Suboxone beyond that which her
doctor prescribed. Additionally, petitioner violated the circuit court’s orders and confidential
nature of the abuse and neglect proceedings by posting about the case on social media. As such,
by continuing to abuse drugs and refusing to participate in treatment, petitioner has failed to make
any substantial changes to her circumstances despite the DHHR’s prior interventions and services.
Therefore, it is clear that petitioner was unlikely to fully participate in an improvement period, and
we therefore find no error in the circuit court’s decision.
Next, we note that petitioner fails to challenge the circuit court’s ultimate finding that there
was no reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected in the near future and that termination of her guardianship rights was necessary for the
welfare of the child. We have 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). Because the record fully supports
the requisite findings, we find no error in the circuit court’s termination of petitioner’s
guardianship rights without the imposition of a less restrictive dispositional alternative, such as the
improvement period that petitioner requests on appeal.
5
Finally, petitioner argues that the circuit court erred in denying her motion for post-
termination visitation because she had custody of and established a relationship with the child. We
find petitioner’s argument unavailing.
In regard to post-termination visitation, we have previously 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). Here, the circuit court found
it was not in A.W.’s best interests to have contact with petitioner. The circuit court found that
petitioner demonstrated a “reckless disregard” for the child’s safety and wellbeing and represented
a danger to him. During the proceedings, petitioner continued to abuse drugs yet denied the same.
Further, petitioner violated the confidential nature of the abuse and neglect proceedings by
discussing the case and the child on social media in violation of the circuit court’s orders. Given
that continued contact with the child posed a danger to his wellbeing, we find no error in the circuit
court’s denial of petitioner’s motion for post-termination visitation with the child. 4
For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 20, 2019, order is hereby affirmed.
4
Petitioner raises a third assignment of error in which she alleges that the circuit court erred
in issuing a no contact order barring her from contact with other children involved in the abuse
and neglect proceedings. We note, however, that petitioner provides no substantive argument in
support of her assertion that the circuit court erred in issuing its no contact order, which is in direct
contradiction to this Court’s rules. Specifically, Rule 10(c)(7) of the West Virginia Rules of
Appellate Procedure requires that “[t]he brief must contain an argument exhibiting clearly the
points of fact and law presented . . . and citing the authorities relied on.” Additionally, in an
Administrative Order entered December 10, 2012, Re: Filings That Do Not Comply With the Rules
of Appellate Procedure, the Court specifically noted in paragraph two that “[b]riefs that lack
citation of authority [or] fail to structure an argument applying applicable law” are not in
compliance with this Court’s rules. Further, “[b]riefs with arguments that do not contain a citation
to legal authority to support the argument presented and do not ‘contain appropriate and specific
citations to the record on appeal . . .’ as required by rule 10(c)(7)” are not in compliance with this
Court’s rules. Here, petitioner’s brief in regard to this assignment of error is inadequate as it fails
to comply with West Virginia Rule of Appellate Procedure 10(c)(7) and our December 10, 2012,
administrative order. Accordingly, the Court will not address this assignment of error on appeal.
6
Affirmed.
ISSUED: June 22, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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