In re L.S.

FILED
May 16, 2023
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re L.S.
No. 22-651 (Randolph County 22-JA-01)
MEMORANDUM DECISION
Petitioner Mother S.S.1 appeals the Circuit Court of Randolph County’s July 13, 2022,
order terminating her parental rights to L.S.2 Upon our review, we determine that oral argument is
unnecessary and that a memorandum decision affirming the circuit court’s order is appropriate.
See W. Va. R. App. P. 21.
Petitioner previously appealed the prior termination of her parental rights to another child,
M.N., and this Court affirmed. See In re M.N., No. 20-0370, 2020 WL 7260052 (W. Va. Dec. 10,
2020)(memorandum decision). While we need not fully recount the facts underlying that prior
appeal, we note that the circuit court terminated petitioner’s parental rights to M.N. due, in part, to
her failure to address her ongoing substance abuse. Id. at *1-2. The court involuntarily terminated
petitioner’s parental rights to M.N. by order entered on February 13, 2020. Id.
In January of 2022, after petitioner gave birth to L.S., the DHHR filed a petition alleging
that petitioner abused methamphetamine while pregnant with L.S. and attended only two prenatal
doctor visits. The DHHR further alleged that petitioner had no independent housing and no means
of income. The petition also included the circumstances surrounding the prior involuntary
termination of petitioner’s parental rights in 2020. The DHHR further alleged that the worker
interviewed the purported father of L.S. who admitted to struggling with methamphetamine. At
that time, the father was incarcerated for a drug possession charge and had two pending criminal
charges for possession of a controlled substance from November and December of 2021. In
February of 2022, petitioner waived her preliminary hearing, and the circuit court ordered her to
participate in random drug screening.
1
Petitioner appears by counsel Gregory R. Tingler. The West Virginia Department of
Health and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey
and Assistant Attorney Katica Ribel. Melissa T. Roman appears as the child’s guardian ad litem.
2
We use initials where necessary to protect the identities of those involved in this case. See
W. Va. R. App. P. 40(e).
1
At the adjudicatory hearing in March of 2022, petitioner stipulated that she abused illicit
substances while pregnant with L.S., and the circuit court adjudicated her as an abusing parent.
That same month, petitioner filed a motion for a post-adjudicatory improvement period or, in the
alternative, a dispositional improvement period. In April of 2022, the DHHR filed a motion to
terminate petitioner’s parental rights to L.S.
The circuit court held a dispositional hearing in June of 2022 at which the DHHR presented
evidence that petitioner abused methamphetamine while pregnant with L.S.; tested positive for
methamphetamine twice during the proceedings; and had not attended counseling, drug treatment,
or parenting education classes since the prior termination of her parental rights. Petitioner testified
that she abused methamphetamine “slightly” before L.S.’s birth but denied drug use after the
child’s birth in January of 2022. She acknowledged that her blood draws in January and March of
2022 produced positive results for methamphetamine but denied using methamphetamine.
Petitioner stated that she had obtained a home and employment and that she no longer associated
with individuals with drug histories. Petitioner testified that she was willing to abide by the terms
of an improvement period, and she claimed a material change in circumstances since the
termination of her parental rights to M.N.
The court found that the DHHR proved that petitioner had not experienced a change in
circumstances since her 2020 proceedings, as evidenced by petitioner’s continued substance abuse
that resulted in L.S.’s drug-exposed birth. The court also found that petitioner had not sought
counseling or any other treatment to address her drug addiction. It relieved the DHHR of its duty
to make reasonable efforts to preserve the family due to the prior termination of petitioner’s
parental rights and denied petitioner’s motion for an improvement period. The court found that
petitioner was unable and unwilling to adequately provide for the child’s needs. It concluded that
there was no reasonable likelihood that petitioner could correct the conditions of abuse and neglect
in the near future and that termination was necessary for the child’s best interests. Accordingly,
the court terminated petitioner’s parental rights to L.S.3 It is from the dispositional order that
petitioner appeals.
On appeal from a final order in an abuse and neglect proceeding, this Court reviews the
circuit court’s findings of fact for clear error and its conclusions of law de novo. 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 request for a dispositional improvement period as an alternative to the termination of
her parental rights. In support, petitioner claims that she experienced a change in circumstances
since her prior termination.
This Court has held the following:
“[W]here there has been a prior involuntary termination of parental rights
to a sibling, the issue of whether the parent has remedied the problems which led
to the prior involuntary termination sufficient to parent a subsequently-born child
must, at minimum, be reviewed by a court[.] . . . [T]he legislature has reduced the
3
The father’s parental rights were terminated below. The permanency plan for L.S. is
adoption by his foster family.
2
minimum threshold of evidence necessary for termination where one of the factors
outlined in West Virginia Code [§ 49-4-605] is present.” Syllabus Point 2, In re
George Glen B., Jr., 205 W.Va. 435, 518 S.E.2d 863 (1999).
Syl. Pt. 3, in part, In re George Glen B., Jr., 207 W. Va. 346, 532 S.E.2d 64 (2000).
Here, the record shows that petitioner failed to correct the conditions that led to the prior
termination of her parental rights. She continued to abuse methamphetamine prior to L.S.’s birth,
resulting in the abuse of that child. Further, she twice tested positive for methamphetamine during
the proceedings below. Petitioner did not seek counseling or drug treatment or otherwise attempt
to address her active drug addiction. Petitioner testified below that she no longer associated with
individuals with drug histories, yet in her brief on appeal, she admits that she remains in a long-
term committed relationship with L.S.’s father who has a lengthy criminal history of drug
possession charges and admitted struggling with addiction. Simply put, petitioner failed to rebut
the DHHR’s evidence that she had no change of circumstances since the prior termination of her
parental rights. Accordingly, the circuit court found that the granting of an improvement period
was unwarranted. See In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002) (“The
circuit court has the discretion to deny a motion for an improvement period when no improvement
is likely.”). As such, we find no error in the circuit court’s decision to deny petitioner’s motion for
an improvement period in lieu of termination.
Additionally, we find no error in the termination of petitioner’s parental rights. As
discussed above, the record supports the circuit court’s finding that there was no reasonable
likelihood that petitioner could correct the conditions of abuse and neglect and that termination
was necessary for the child’s welfare. See W. Va. Code § 49-4-604(c)(6) (permitting a circuit court
to terminate parental rights upon these findings). Moreover, “[t]ermination of parental rights . . .
may be employed without the use of intervening less restrictive alternatives when it is found that
there is no reasonable likelihood . . . that the conditions of neglect or abuse can be substantially
corrected.” Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (citation omitted).
As the court’s findings are fully supported by the record, we find no error in the termination of
petitioner’s parental rights rather than the imposition of a less restrictive dispositional alternative.
For the foregoing reasons, we find no error in the decision of the circuit court, and its July
13, 2022, order is hereby affirmed.
Affirmed.
ISSUED: May 16, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
3