In re Z.M.

FILED

STATE OF WEST VIRGINIA June 3, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS

OF WEST VIRGINIA

In re Z.M.

No. 20-0916 (Raleigh County 19-JA-131-P)

MEMORANDUM DECISION

Petitioner Mother M.R., by counsel Robert P. Dunlap II, appeals the Circuit Court of

Raleigh County’s October 6, 2020, order terminating her parental rights to Z.M. 1 The West

Virginia Department of Health and Human Resources (“DHHR”), by counsel James Wegman,

filed a response in support of the circuit court’s order. The guardian ad litem, Vickie L. Hylton,

filed a response on behalf of the child in support of the circuit court’s order. Petitioner filed a reply.

On appeal, petitioner argues that the circuit court erred in denying her an extension of her

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.

In February of 2018, the DHHR filed a petition that alleged, in relevant part, that petitioner

abused and neglected an older child who is not at issue in this appeal. According to the DHHR,

petitioner admitted to abusing marijuana and taking Subutex while pregnant with this older child.

Additionally, the DHHR alleged that petitioner tested positive for THC and buprenorphine upon

admission to the hospital to give birth to this child, that the child’s cord tested positive for

buprenorphine and norbuprenorphine, and that the child was transferred to a neonatal intensive

care unit in order to monitor the child for effects from drug exposure. The DHHR also alleged that

petitioner was caught smoking in her room while in the hospital, prompting a security search that

recovered a “pill cutter, syringes, [a] spoon with white residue, Suboxone strips, Subutex pills[,]

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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and other unidentified loose pills.” It is unnecessary to address the full procedural history of this

first petition, given that petitioner did not appeal any order that made rulings about this child. It is

sufficient to note, however, that petitioner was eventually adjudicated as an abusing parent upon

these allegations and her rights to this older child were terminated.

On June 3, 2019, the DHHR filed an amended petition 2 against petitioner alleging that she

recently gave birth to the subject child Z.M. According to the DHHR, petitioner covertly gave

birth to Z.M. in Winston-Salem, North Carolina, and lied to hospital staff about her physical

address. A social worker in that state contacted Child Protective Services (“CPS”) because “they

suspected that [petitioner] was running from CPS in West Virginia.” The petition also alleged that

the same month petitioner gave birth to Z.M. she tested positive for THC and Suboxone. Based on

petitioner’s ongoing substance abuse while pregnant and her efforts to thwart Z.M.’s removal, the

DHHR alleged that petitioner abused and neglected the child.

In November of 2019, the circuit court terminated petitioner’s parental rights to her older

child upon evidence that she rejected the DHHR’s case plan and announced her intention to

voluntarily relinquish her parental rights to that child. 3 According to the court, this evidence

established petitioner’s continued refusal to address the issues of abuse and neglect in regard to

that older child. Relevant to the issues in the instant appeal, the court also adjudicated petitioner

as an abusing parent in regard to Z.M. at that time. The court based adjudication on petitioner’s

“continuing illicit substance abuse.” The court further granted petitioner a post-adjudicatory

improvement period. The following month, petitioner signed a case plan that required her to

remain drug free, seek inpatient substance abuse treatment, and submit to regular drug screens.

According to a court summary filed in July of 2020, the DHHR continued to have concerns

that petitioner was abusing Suboxone and/or Subutex, as petitioner refused to present a valid

prescription for either drug. Similarly, a court summary filed in September of 2020 again indicated

that petitioner failed to provide a valid prescription for Suboxone, despite the fact that she

continued to test positive for the drug. According to the DHHR, instead of complying with requests

to confirm her lawful prescription and use of the drug, petitioner “presented her Suboxone bottle

with empty wrappers.” The summary also indicated that although petitioner attended substance

abuse treatment, “she told the staff that she was only doing this because CPS [was] making her

and not because she needed to stop using any drugs.” According to petitioner, she “gave the parties

a list of her prescribed medications” at a multidisciplinary team meeting prior to the final hearing.

In September of 2020, the court held a final dispositional hearing, during which the DHHR

presented evidence of petitioner’s noncompliance with the case plan. A DHHR worker testified to

petitioner’s failure to submit to drug screens as ordered. A caseworker testified that petitioner

stopped attending screens as ordered, although she had recently resumed the screens. According

2

This was, technically, the second amended petition filed in the proceedings below.

Petitioner did not, however, include either of the first two petitions in her appendix record on

appeal to this Court.

3

Petitioner did not appeal the order terminating her rights to this child.

2

to the record, petitioner disregarded the court’s order about drug screens and chose to undergo

screening with a provider of her own choosing and without court approval. The worker further

confirmed that because petitioner refused to comply with the screening requirement, visits with

the child were suspended. The director of the Raleigh County Day Report Center testified that

petitioner missed approximately twenty-seven screens, and that, when she did screen, petitioner

was positive for THC, Suboxone, and gabapentin. According to multiple witnesses, petitioner was

absent from various services for months at a time. Multiple witnesses also testified that petitioner

had, at best, one clean screen during the entire pendency of the proceedings.

Further, petitioner failed to submit to inpatient substance abuse treatment and, instead,

began outpatient therapy. According to petitioner, no inpatient substance abuse treatment programs

would accept her based on her circumstances. However, despite her participation in outpatient

treatment, petitioner continued to test positive for THC. The record further established that shortly

following her award of a post-adjudicatory improvement period, petitioner reported for a substance

abuse assessment and tested positive for Suboxone and THC. Following the evaluation, petitioner

was diagnosed with severe opioid use disorder and mild cannabis use disorder. The DHHR

provided evidence that, despite this diagnosis, petitioner “took little to no action to address her

ongoing substance use and abuse” and failed to complete any of the programs required by her case

plan. In fact, petitioner presented a witness who operated a counseling program that petitioner

attended and who confirmed that petitioner failed to maintain sobriety. The circuit court also

considered evidence that petitioner secured steady employment at three separate businesses but

found that “such level of employment was an effort to create an excuse so as to avoid full

compliance and participation in programs designed to assist and address the underlying issues in

this matter.”

Petitioner moved for an extension of her post-adjudicatory improvement period, but the

circuit court found that the primary condition of abuse and neglect, substance abuse, had continued

without correction. As the circuit court noted, petitioner abused marijuana during her pregnancy

and continued to do so, as evidenced by a “multitude of positive screens.” As such, the court denied

the motion for an extension of the improvement period. Petitioner also moved to amend her case

plan on the basis that it required her to attend inpatient substance abuse treatment, for which she

allegedly did not qualify. The court found, however, that this Court has previously held that a

parent may not wait until an improvement period has lapsed to raise objections to the plan. See In

re Jamie Nicole H., 205 W. Va. 176, 182, 517 S.E.2d 41, 47 (1999). According to the circuit court,

petitioner waited until four months after the expiration of her improvement period to raise this

objection. As such, the court denied this motion as well.

Turning to disposition, the court noted that across what amounted to two proceedings,

petitioner continued to abuse THC for a period of two years. Despite the DHHR offering extensive

resources, petitioner “continued to disregard the most basic [o]rder of the [c]ourt and

requirements” under the case plan. The court noted petitioner’s compliance in regard to

employment and housing but indicated that these “were not the most concerning” issues of abuse

and neglect that required correction. Based on petitioner’s continued substance abuse, the court

found that the DHHR established that there was no reasonable likelihood that petitioner could

substantially correct the conditions of abuse and neglect in the near future and that termination of

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her parental rights was in the child’s best interest. As such, the court terminated petitioner’s

parental rights. 4 It is from the dispositional 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

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 it was error to deny her request for an extension of her

improvement period. According to petitioner, she made substantial progress in her improvement

period by obtaining employment and housing. She further argues that she testified that she

requested an extension of her improvement period so that she could cease abusing THC and that

experts testified in support of her motion that she could achieve this goal. We find, however, that

the circuit court did not err in denying petitioner’s motion.

According to West Virginia Code § 49-4-610(6)

[a] court may extend any improvement period granted pursuant to subdivision (2)

[governing post-adjudicatory improvement periods] . . . for a period not to exceed

three months when the court finds that the respondent has substantially complied

with the terms of the improvement period; that the continuation of the improvement

period will not substantially impair the ability of the department to permanently

place the child; and that the extension is otherwise consistent with the best interest

of the child.

Contrary to her argument on appeal, the record does not support petitioner’s assertion that she

substantially complied with the terms of her improvement period. In fact, the circuit court noted

petitioner’s success in obtaining housing and employment, two factors upon which she relies to

argue on appeal that she substantially complied. However, the court noted that petitioner failed to

make any improvement in regard to the most important aspect of her improvement period—her

substance abuse. We agree. According to the record, petitioner’s substance abuse continued,

4

The unknown father’s parental rights remain intact. According to respondents, the

permanency plan for the child is adoption in the current foster home.

4

unabated, across two pregnancies, termination of her parental rights to two children, and two years

of proceedings below. While petitioner argues that her final drug screen was negative for THC,

we find that this was insufficient to establish her substantial compliance with this most important

aspect of this case. Further, while petitioner argues that she tested positive for THC because of her

consumption of cartridges purchased legally in West Virginia, the circuit court specifically found

that argument was “unfounded, and wholly unsupported by any evidence.” As we have explained,

a 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). As the circuit court found,

petitioner clearly evidenced her refusal to comply with basic requirements below by failing to

follow clear directions, such as complying with drug screens as ordered. Therefore, it is clear that

the circuit court did not err in denying petitioner’s motion for an extension of her post-adjudicatory

improvement period.

This same evidence also supports the circuit court’s termination of petitioner’s parental

rights. Again, petitioner makes much of her participation in certain services and her employment

and housing to support her argument, while ignoring the fact that her substance abuse continued

throughout the proceedings. While petitioner again argues that her negative screen for THC shortly

before the dispositional hearing evidenced her ability to correct the conditions of abuse and

neglect, we reiterate that this isolated screen, when compared against petitioner’s repeated refusal

to cease abusing THC through the lengthy duration of the proceedings, does not support

petitioner’s position. Instead, it evidences the fact that petitioner failed to take any steps to comply

with the court’s direction that she cease abusing drugs until the last possible opportunity. In short,

petitioner ignores the fact that

[a]lthough it is sometimes a difficult task, the trial court must accept the fact that

the statutory limits on improvement periods (as well as our case law limiting the

right to improvement periods) dictate that there comes a time for decision, because

a child deserves resolution and permanency in his or her life, and because part of

that permanency must include at minimum a right to rely on his or her caretakers

to be there to provide the basic nurturance of life.

State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 260, 470 S.E.2d 205, 214 (1996). Despite the

fact that petitioner was given over two years, between the multiple proceedings, to remedy the

same conditions of abuse and neglect, she failed to do so. That she was able to produce one

negative screen shortly before the dispositional hearing when the record shows that she was able

to produce, at most, one clean screen throughout the entire pendency of the proceedings is simply

insufficient to support her position that termination was in error.

On the contrary, the Court has explicitly explained that under West Virginia Code § 49-4-

604(c)(6), a circuit court may terminate parental rights upon finding that there is no reasonable

likelihood that the conditions of abuse and neglect can be substantially corrected and that

termination of parental rights is necessary for the child’s welfare. The circuit court here made both

findings upon substantial evidence. According to West Virginia Code § 49-4-604(d)(1), a situation

in which there is no reasonable likelihood that the conditions of abuse and neglect can be

substantially corrected includes one in which the parent has

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habitually abused or [is] addicted to alcohol, controlled substances or drugs, to the

extent that proper parenting skills have been seriously impaired and the person . . .

[has] not responded to or followed through the recommended and appropriate

treatment which could have improved the capacity for adequate parental

functioning.

As the circuit court found, petitioner’s continued drug abuse, including while pregnant with Z.M.,

resulted in her inability to properly parent the child and required the termination of her parental

rights. Further, as this Court has held,

“[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 on the overwhelming

evidence in support of these determinations, we find no error in the circuit court’s termination of

petitioner’s parental rights.

In support of her argument, petitioner also argues that the DHHR failed to make reasonable

efforts to promote reunification with the child, citing to evidence that a specific DHHR worker

had not spoken with petitioner in the four months prior to disposition, failed to visit petitioner’s

home during the case, and called petitioner a “psycho” in an email. This argument, however, is

entirely unavailing, given that the record shows that the DHHR made extensive efforts to assist

petitioner in her efforts to regain custody of her child. Contrary to her argument, it was petitioner

who failed to make reasonable efforts during the proceedings, as she went long periods where she

failed to comply with services and completely disregarded other basic court orders.

Petitioner also argues that this same DHHR worker testified that petitioner’s rights should

have been terminated because she “fail[ed] to get off of Suboxone.” According to petitioner, this

violates West Virginia Code § 49-4-604(f), which states that

[t]he court may not terminate the parental rights of a parent on the sole basis that

the parent is participating in a medication-assisted treatment program, as regulated

in § 16-5Y-1 et seq., for substance use disorder, as long as the parent is successfully

fulfilling his or her treatment obligations in the medication-assisted treatment

program.

This argument is unavailing for several reasons, most importantly because it totally misrepresents

the record below. While it is true that the DHHR worker testified that the DHHR sought

termination because of petitioner’s continued use of Suboxone, she ignores the fact that the DHHR

filed a court summary the day prior to the dispositional hearing that addressed petitioner’s

continued refusal to provide proof that she was lawfully prescribed Suboxone. Throughout the

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proceedings, the DHHR was confronted with concerns that petitioner was either abusing the drug

without a prescription or in a manner that was inconsistent with a prescription. Because of

petitioner’s continued failure to present documentation to allay these fears, the DHHR did

recommend that petitioner cease using Suboxone and, instead, attend inpatient substance abuse in

an effort to become drug free. We recently explained that

[t]he use of medication-assisted treatment is authorized by the Medication-

Assisted Treatment Program Licensing Act, West Virginia Code §§ 16-5Y-1 to 16-

5Y-13 (2016), and the Act’s supporting regulations. Medication-assisted treatment

will not be appropriate or beneficial for all persons suffering from opioid use

disorder. However, when medication-assisted treatment is appropriate and

potentially beneficial, any bias against its use is contrary to the public policy of this

State as announced by the Legislature.

Syl. Pt. 5, In re M.M., --W. Va.--, 853 S.E.2d 556 (2020). Based on the record, we do not find any

bias against medication-assisted treatment by the DHHR below. Instead, the DHHR simply sought

to ensure that petitioner was lawfully and appropriately participating in such a program and, when

petitioner failed to produce documentation to establish that this was the case, recommended she

cease using Suboxone in favor of attending inpatient substance abuse treatment. Even more

importantly, however, is the fact that the circuit court did not rely on petitioner’s continued use of

Suboxone in terminating her parental rights. Upon hearing evidence of petitioner’s lawful

Suboxone use at the final dispositional hearing, the circuit court proceeded to terminate petitioner’s

parental rights upon her continued abuse of THC alone. As such, petitioner cannot establish any

error in regard to the termination of her parental rights in regard to her use of Suboxone.

Lastly, this Court reminds the circuit court of its duty to establish permanency for the child

in this case. According to the DHHR, the permanency plan for the child is adoption in the current

foster home, but the DHHR provides no information on how that permanency will be timely

achieved while the unknown father’s rights remain intact. Rule 39(b) of the Rules of Procedure for

Child Abuse and Neglect Proceedings requires that

[a]t 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 children

within twelve months of the date of the disposition order. As this Court has stated,

[t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules

of Procedure[] for Child Abuse and Neglect Proceedings for permanent placement

of an abused and neglected child following the final dispositional order must be

strictly followed except in the most extraordinary circumstances which are fully

substantiated in the record.

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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 [West Virginia Code § 49-4-604(c)(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 [cannot] 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

October 6, 2020, order is hereby affirmed.

Affirmed.

ISSUED: June 3, 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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