STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
November 21, 2016
In re: A.B., L.B., B.M., and W.M. RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 16-0653 (Fayette County 15-JA-65, 15-JA-66, 15-JA-67, & 16-JA-01)
MEMORANDUM DECISION
Petitioner Mother A.M., by counsel Jennifer M. Alvarez, appeals the Circuit Court of
Fayette County’s June 7, 2016, order terminating her parental rights to fifteen-year-old L.B.,
twelve-year-old A.B., two-year-old B.M., and four-month-old W.M.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. The guardian ad litem, Vickie L. Hylton, 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 limiting her visitation with the children 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.
In May of 2015, the DHHR filed an abuse and neglect petition against petitioner alleging
that she abused alcohol and put her children in danger when she was arrested and charged for
driving while intoxicated with two of the children in the vehicle.2 The petition contained
additional allegations that petitioner’s home was unsanitary and “in disarray,” there was garbage
inside the home and covering the front porch and yard, the children suffered from poor hygiene,
and she and the father engaged in domestic violence in the children’s presence. The petition also
noted that petitioner was involved in a previous abuse and neglect proceeding based upon the
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
Petitioner was later indicted on two counts of gross child neglect creating risk of bodily
injury and one count driving under the influence of alcohol. She later pled guilty to one felony
count of child neglect creating risk of bodily injury and one misdemeanor count of driving under
the influence of alcohol.
1
same issues of substance abuse and domestic violence.3 Later, petitioner waived her right to a
preliminary hearing.
In July of 2015, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the allegations as contained in the petition. Based upon petitioner’s stipulation, the
circuit court found that petitioner abused the children and her substance abuse affected her ability
to parent. The circuit court ordered that petitioner submit to random drug and alcohol screening
as a requirement for supervised visitation with the children. Petitioner then moved for and was
granted a post-adjudicatory improvement period. The terms and conditions of petitioner’s post
adjudicatory improvement period required her to submit to a psychological evaluation; attend
parenting skills and adult life skills classes; undergo domestic violence counseling; establish a
clean, safe, drug-free, and stable home; maintain gainful employment; and submit to random
drug and alcohol screening, random pill counts and prescription medication monitoring.
In January of 2016, following W.M.’s birth, the DHHR filed an amended petition that
contained the same allegations as set forth in the original petition and noted that petitioner tested
positive for Valium when she did not have a prescription for that medication. Subsequently,
petitioner waived her right to a second preliminary hearing. In March of 2016, the circuit court
held a second adjudicatory hearing wherein petitioner stipulated to the allegations as set forth in
the amended petition.
In April of 2016, the circuit court held a dispositional hearing wherein the circuit court
heard testimony from a DHHR worker that petitioner failed to participate in services, failed to
provide copies of prescriptions for medications, tested positive for benzodiazepine and
marijuana, and refused to participate in some random drug and alcohol screenings. The worker
testified that petitioner did not exercise her visitation with the children because she refused to
submit to random drug and alcohol screening and visitation was ultimately terminated in
February of 2016 because of petitioner’s non-compliance. The worker also testified that
petitioner failed to remove the excessive amount of trash that littered the home and the property.
The worker further testified that petitioner refused to allow service providers into the home on
multiple occasions and, as a result, petitioner’s services were terminated. The guardian noted on
the record that petitioner often refused her access to the home, was confrontational, and
demanded that the guardian vacate the property on multiple occasions.
By order entered June 7, 2016, the circuit court found that petitioner did not meaningfully
participate in any of the services provided to her and did not “seem to be implementing anything
that [she] learned in order to make substantial changes in [her] home.” The circuit court noted
that the home was in much the same condition as it was when the petition was filed and
petitioner failed to make any changes or long-term improvements. The circuit court found that
petitioner “exhibited great hostility against” the DHHR, service providers, and the guardian
which resulted in her non-compliance with services. The circuit court also found there was no
3
The DHHR provided petitioner with extensive services in the previous case, which
included individualized parenting and adult life skills classes. Ultimately, the children were
returned to her custody.
2
reasonable likelihood that the conditions of abuse and neglect could be corrected in the near
future and that it was in the children’s best interests to terminate petitioner’s parental rights. 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
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, the Court finds
no error in the proceedings below.
On appeal, petitioner argues that the circuit court erred in limiting her visitation with the
children and that the limitation caused her failure to comply with the terms of her improvement
period. However, petitioner fails to articulate a causal relationship.
West Virginia Code § 49-4-610(7) requires the termination of an improvement period
“when the court finds that [a parent] has failed to fully participate in the terms of the
improvement period.” Additionally, we have long held that “[i]t is within the court’s discretion
to grant an improvement period . . . [and] it is also within the court’s discretion to terminate the
improvement period . . . if the court is not satisfied that the [parent] is making the necessary
progress.” Syl. Pt. 2, In re Lacey P., 189 W.Va. 580, 433 S.E.2d 518 (1993). Moreover, the
record is clear that petitioner’s willful noncompliance with services left the circuit court no
choice but to terminate her post-adjudicatory improvement period. The circuit court heard
testimony that petitioner refused to participate in random drug and alcohol screenings, or permit
random pill counts. She further tested positive on at least two occasions for Valium, for which
she did not have a prescription, and marijuana. The circuit court also heard testimony that
petitioner was provided with waste removal services but failed to adequately utilize the services
to correct the unsanitary conditions present at the home.
Simply put, the circuit court’s requirement that petitioner undergo drug screening in order
to visit the children was implemented to protect the children’s welfare and had no impact on
petitioner’s ability to comply with the numerous services the DHHR offered that were wholly
unrelated to visitation. Because petitioner failed to fully participate in her improvement period or
make sufficient progress, we find no error.
3
Petitioner also argues that the circuit court erred in terminating her parental rights
because she was substantially complying with the terms and conditions of her improvement
period, despite the guardian’s “actively sabotaging” her attempts at compliance.4 However, as
outlined above, the evidence overwhelmingly established that petitioner failed to comply with
the terms and conditions of her improvement period. Moreover, petitioner’s argument ignores the
requirement that the circuit court terminate her parental rights upon findings that there is no
reasonable likelihood that the conditions of neglect or abuse can be substantially corrected and
that termination is necessary for the children’s welfare. Pursuant to West Virginia Code § 49-4
604(c)(3), 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 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.
At disposition, the circuit court found that there was no reasonable likelihood petitioner
could substantially correct the conditions of abuse or neglect because she did not meaningfully
participate in any of the services provided to her, did not implement anything that she learned,
and failed to make substantial changes in the home or any long-term improvements. The circuit
court also found that termination of petitioner’s parental rights was necessary for the children’s
welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are required to terminate a
parent’s parental rights upon these findings.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 7, 2016, order is hereby affirmed.
Affirmed.
ISSUED: November 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
4
There is no evidence on the record that petitioner, verbally or in writing, moved the
circuit court to remove the guardian or that she brought any incidents of alleged misconduct to
the circuit court’s attention.
4