Armstead, Chief Justice

Syllabus by the Court

1. "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." Syllabus Point 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

2. "As a general rule, the least restrictive alternative regarding parental rights to custody of a child under West Virginia Code § 49-4-604 (2020) will be employed; however, courts are not required to exhaust every speculative possibility of parental improvement before terminating parental rights 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 [delayed] by numerous placements." Syllabus Point 1, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980).

3. "Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, [West Virginia Code § 49-4-604 (2020)] 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(e)] 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).

4. "The controlling standard that governs any dispositional decision remains the best interests of the child." Syllabus Point 4, in part, In re R.H., 233 W. Va. 57, 754 S.E.2d 743 (2014).

Appeal from the Circuit Court of Marion County, The Honorable David R. Janes, Judge, Case Number: CC-24-2019-JA-42

M. Tyler Mason, Esquire, Leslie & Mason Law, PLLC, Dellslow, West Virginia, Counsel for Petitioner Mother, M.L.

Patrick Morrisey, Esquire, Attorney General, Charleston, West Virginia, Lee A. Niezgoda, Esquire, Assistant Attorney General, Fairmont, West Virginia, Counsel for Respondent West Virginia, Department of Health and Human Resources

Heidi M. Georgi Sturm, Esquire, Fairmont, West Virginia, Guardian ad Litem for H.T.

Armstead, Chief Justice:

M.L. has been a respondent in numerous child abuse and neglect proceedings over the last decade, impacting all four of her children. In this matter, relating only to her fourth child, H.T., she appeals the order of the Circuit Court of Marion County denying her motion for modification of her prior disposition and the termination of her parental rights.

After review, we find that the circuit court did not err in modifying M.L.’s prior disposition and terminating M.L.’s parental rights.

I. FACTUAL AND PROCEDURAL BACKGROUND

Beginning as early as 2012, M.L. has had a long history of DHS intervention. In August 2012, DHS removed M.L.’s oldest son from her custody. In that prior proceeding, M.L. was alleged to have exposed her eldest son to alcohol abuse. She was given time to make improvement but was ultimately unable to establish sobriety or successfully complete improvement periods. In that matter, the circuit court granted disposition pursuant to West Virginia Code § 49-4-604(c)(5)(2020X"Disposition Five"), and awarded legal guardianship of the eldest child to M.L.’s mother, allowing M.L. to retain her parental rights.

In October 2014, M.L. gave birth to twin daughters. On June 9, 2017, DHS received a referral that M.L. was abusing methamphetamine on a daily basis, dealing drugs out of the home she shared with her mother (who had previously been granted legal guardianship of M.L.’s first child), and was exposing all three of her children to drug use and drug dealing. DHS began offering services to M.L. but those efforts failed and DHS filed a nonemergency petition alleging abuse and neglect on January 16, 2018. As a result of that petition, M.L. was adjudicated as an abusing and neglectful parent and, on January 15, 2019, she was granted a six-month post-adjudicatory improvement period. During this improvement period, M.L. was sporadic in her compliance with random drug screenings and minimally participated in adult life skills services, resulting in those services being terminated. On July 9, 2020, M.L. was granted another Disposition Five with regard to the twins, once again retaining her parental rights while they remained in the physical and legal custody of their father. Critical to the issues in this matter, during the course of each of these two prior proceedings, M.L. would experience periods of sobriety, followed by serious relapses, directly impacting her ability to parent.

It is within the context of this extended involvement with DHS that the March 27, 2019, amended petition was filed alleging that M.L. and D.T. had abused and neglected H.T., their newborn son. H.T. was born drug addicted in March 2019, with his umbilical cord testing positive for buprenorphine and amphetamines. Indeed, H.T. suffered from "shakes" and had to be given morphine due to the withdrawal symptoms he experienced. DHS alleged that M.L. had taken Methamphetamine, Adderall/Vyvanse, Xanax, Suboxone, as well as Gabapentin, during the time she was pregnant with H.T. Based upon these allegations, the circuit court transferred physical and legal custody of H.T. to DHS by order entered on March 28, 2019. DHS then placed H.T. with D.T.’s paternal aunt and uncle, J.A. and D.A., upon H.T.’s release from the hospital.

Following the March 28, 2019, order, the circuit court conducted a preliminary hearing on April 9, 2019. M.L. failed to appear at this hearing and the circuit court scheduled an adjudicatory hearing. D.T. was later adjudicated as abusing and neglectful and was granted a post-adjudicatory improvement period. On July 15, 2019, the circuit court granted physical and legal custody of H.T. to D.T. after successful completion of his improvement period. Over the course of two months, M.L. attended in-patient treatment, only to relapse on methamphetamine. Eventually, on June 30, 2020, M.L. was granted Disposition Five with regard to H.T. and M.L. retained her parental rights, while physical and legal custody of H.T. remained with D.T.

On June 11, 2021, D.T. died of a drug overdose, leaving H.T. without a legal guardian. As a result, on September 13, 2021, the circuit court granted temporary guardianship of H.T. to J.A. and D.A., who had cared for H.T. prior to his placement with D.T. and were caring for H.T. immediately following D.T.’s death. Indeed, though D.T. had physical and legal custody of H.T., in fact, J.A. and D.A. had been the primary caretakers for H.T. since his birth. On September 16, 2021, M.L., acting as self-represented litigant, filed a motion to modify disposition, pursuant to West Virginia Code § 49-4-606(a), to regain custody of H.T. As grounds for her motion, M.L. alleged that: "My son [H.T.’s] father [overdosed] living with his niece. I have [finished] all necessary requirements by the court and have become a responsible adult." M.L. obtained new counsel and, on December 14, 2021, filed another motion for a status conference "regarding disposition, placement and/or reunification." Following the status conference, on February 8, 2022, M.L., by counsel, filed a motion for modification of Disposition Five, alleging that D.T. had passed away and that based upon M.L.’s "completion of a drug rehabilitation program, her ongoing sobriety, and her keeping of steady employment and safe and suitable home, there is clear and convincing evidence of a material change in circumstances" warranting a modification of Disposition Five. Thereafter, on March 21, 2022, DHS and H.T.’s guardian ad litem filed a joint motion, seeking to modify Disposition Five based upon the death of D.T. and to terminate M.L.’s parental rights. Ten days later, on March 31, 2022, J.A. and D.A. filed a motion to intervene in the matter and to terminate M.L.’s parental rights. On April 6, 2022, the circuit court granted the motion to intervene.

Following multiple hearings on the crossmotions to modify disposition, the circuit court modified the prior Disposition Five and terminated M.L.’s parental rights. The circuit court made specific findings that M.L. had successfully completed in-patient drug treatment but later tested positive for methamphetamine on two occasions. The circuit court found that this was not the first time that M.L. had successfully attained a modicum of sobriety, only to relapse.

Thus, the circuit court found that there was no reasonable likelihood that the conditions of abuse and neglect could be corrected in the near future, specifically finding that:

M.L. has, on several occasions over the course of multiple CPS cases, obtained and maintained sobriety for a period and then relapsed time and again. [M.L.] has exhausted every improvement period and every remedial service available[ ] and has never been able to maintain her sobriety for more than a limited period of time.

The circuit court also found that during her three abuse and neglect cases for four children over the course of a decade, M.L. was granted Disposition Five in each matter for each of her children and, in the process, had exhausted all improvement periods available to her. Indeed, the court found, over the years, she never corrected the conditions of abuse and neglect. Further, the circuit court found that it would be in H.T.’s best interest to terminate M.L.’s parental rights because M.L.:

[H]as not shown she would be able to care for H.T. as she has never parented H.T. due to his drug exposed birth that led to him being immediately placed in foster care at the home of [J.A. and D.A.]. [M.L.] has never been alone with H.T., has never parented him, has never had him for an overnight visit – has merely been a very peripheral person who he has seen on very rare occasion.

Accordingly, the circuit court found that M.L. received services during her two previous proceedings and found that there were no more services that could be offered to her that had not already been offered. Further, the court concluded that there was no reasonable likelihood that M.L. could substantially correct the conditions of abuse and neglect in the foreseeable future. It is from this order that petitioner appeals.

II. STANDARD OF REVIEW

[1–3] The standard of review in cases such as this is clear:

"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 B.P., 249 W. Va. 274, 895 S.E.2d 129 (2023). With this standard in mind, we turn to the arguments raised in this appeal.

III. ANALYSIS

M.L. raises two issues in her appeal. First, she argues that the circuit court erred in denying her motion for modification of the previously granted Disposition Five. Second, she avers that the circuit court erred in terminating her parental rights. We will examine each of these issues in turn.

A. Motion for Modification

[4] M.L., DHS, and the guardian ad litem each moved for modification of the prior disposition in this case pursuant to the provisions of West Virginia Code § 49-4-606, which requires a finding by "clear and convincing evidence [of] a material change of circumstances and that the modification is in the child’s best interests." All parties cited D.T.’s death as a basis for their motions.

Those competing motions may be characterized as M.L. seeking a less restrictive alternative, and DHS and the guardian ad litem seeking a more restrictive alternative. This posture required the circuit court to determine whether the disposition could be modified and which motion, if any, should be granted. M.L.’s motion simply did not show by clear and convincing evidence that there was a material change in circumstances warranting a less restrictive alternative than a Disposition Five. Though she should be commended for her continuing efforts at sobriety, she still tested positive for methamphetamine. Further, her lengthy history of DHS involvement, on-again and off-again sobriety, and the exhaustion of services she could receive made her an inappropriate placement for H.T. M.L. was repeating the same conduct that led to DHS intervention in the first place. Her efforts were viewed by the circuit court as merely her latest short-lived period of sobriety.

At the conclusion of H.T.’s initial abuse and neglect proceeding, DHS met its burden to prove that Disposition Five was appropriate and in H.T.’s best interest. Now, as the movant, M.L. had the burden to show by clear and convincing evidence that a less restrictive alternative was warranted based on a change in circumstances and that the less restrictive disposition, up to and including reunification, was in H.T.’s best interests. In this sense, D.T.’s death cannot be credited to M.L.’s burden to prove a change in circumstances warranting a different, less restrictive alternative. Critically, the child’s circumstances had no bearing on any change in her circumstances. In this context, denial of M.L.’s motion to modify disposition to a less restrictive alternative was not in error insofar as the dispositional alternative M.L. requested was not supported by a material change in her circumstances and was not in the best interest of H.T. See Syl. Pt. 1, In re Cesar L.

[5] Having determined that M.L. failed to meet her threshold burden to modify the disposition, we move to DHS and the guardian’s motions to modify. As we noted above, H.T. was in D.T.’s physical and legal custody at that time of D.T.’s death. We have previously found that the termination of one par- ent’s parental rights to be a material change in circumstances, warranting modification of the other parent’s disposition. See In re E.S., No. 16-0821, 2017 WL 678881 at *2 (W. Va. Feb. 21, 2017) (memorandum decision). Here, though D.T.’s rights were not terminated, the same logic applies. D.T.’s death warranted a review of the prior disposition and brought to the forefront the question of whether M.L. was a suitable placement for H.T., satisfying the requirement of a material change in circumstances. Because D.T.’s death left H.T. without a physical or legal guardian, it is clear that D.T.’s death resulted in a material change in circumstances for the child, warranting a reexamination of his placement.

[6] Although D.T.’s death constituted a change of circumstances, the requested modification was only appropriate if it was found to be in the best interest of H.T. In this regard, we have long held that the best interests of children in child abuse and neglect proceedings are paramount. We have found that "the best interests of the child is the polar star by which decisions must be made which affect children." Michael K.T. v. Tina L.T., 182 W. Va. 399, 405, 387 S.E.2d 866, 872 (1989). Further, "when a petition alleging abuse and neglect has been filed, a circuit court has a duty to safeguard the child and proride for his or her best interests." In re George Glen B. Jr., 207 W.Va. 346, 355, 532 S.E.2d 64, 73 (2000). Additionally, "the ‘best interests of the child’ – has become the ultimate benchmark by which all custody decisions are appraised. While this Court has also observed that the rights of the parents are entitled to respect and protection, the rights of the children are paramount[.]" In re Frances J.A.S., 213 W. Va. 636, 643, 584 S.E.2d 492, 499 (2003).

We considered the best interest of the child standard in the context of a modification of disposition in In re S.W., 236 W. Va. 309, 779 S.E.2d 577 (2015). In that case, the mother, who had a long history of both CPS involvement and drug abuse, petitioned the circuit court following her successful completion of Drug Court to set aside the prior disposition, which had placed her child with the paternal grandparents. See id., 236 W. Va. at 312, 779 S.E.2d at 580. The circuit court set aside the prior placement and ordered the return of the child to the mother. Id. We reversed, finding that even though the mother had shown a material change in circumstances, it was not in the child’s best interest to move him from his placement. Id., 236 W. Va. at 315, 779 S.E.2d at 583.

In this case, there were competing motions for modification of Disposition Five. Plainly, the death of H.T.’s father and physical and legal custodian warranted the circuit court’s examination of the appropriate placement for H.T. M.L.’s long history of DHS involvement, on-again and off-again sobriety, and the exhaustion of services she could receive made her an inappropriate placement for H.T. Based upon these factors, M.L. did not meet her burden to prove entitlement to a modification. Conversely, DHS and the guardian met their burden demonstrating that D.T.’s death was a material change in circumstances warranting modification of the prior disposition. After reaching this conclusion, the circuit court then had to determine if DHS met its burden to terminate M.L.’s parental rights.

B. Termination of M.L.’s Parental Rights

Having found that the modification of M.L.’s disposition was justified following D.T.’s untimely and tragic death, we now analyze whether termination of M.L.’s parental rights was warranted. M.L. relies solely upon this Court’s prior decision in In re S.C., 245 W. Va. 677, 865 S.E.2d 79 (2021), to support her contention that the circuit court improperly terminated her parental rights. In that case, this Court reversed the circuit court’s termination of the father’s parental rights. Id. However, the basis for that reversal was quite different than the facts present in this matter. The father in In re S.C. demonstrated that he no longer used illicit drugs, had moved out of state and started a family, and was gainfully employed. Id., 245 W. Va. at 682, 865 S.E.2d at 83. In this matter, M.L. continued to test positive for illicit drugs, even after completion of her most recent drug treatment program.

Second, the circuit court in In re S.C. made no findings supporting its conclusion that there was "no reasonable likelihood that the conditions of neglect and abuse can be substantially corrected" and that the termination of parental rights was "necessary for the welfare of the child." Id., 245 W. Va. at 690, 865 S.E.2d at 92. In this case, the circuit court made the requisite factual findings supporting both the "reasonable likelihood" and "necessary for the welfare" prongs. Specifically, the circuit court found that termination of M.L.’s parental rights was in the best interest of H.T. because M.L. had a long, demonstrable history of CPS involvement, was never able to maintain sobriety, and that H.T. had a right to consistency and permanency in his life.

The statutory definition of "no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected" supports the circuit court’s termination of M.L.’s parental rights, providing;

"No reasonable likelihood that conditions of neglect or abuse can be substantially corrected" means, based upon the evidence before the court, the abusing adult or adults have demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own or with help. Those conditions exist in the following circumstances:

(1) The abusing parent or parents have habitually abused or are addicted to alcohol, controlled substances or drugs, to the extent that proper parenting skills have been seriously impaired and the person or persons have not responded to or followed through the recommended and appropriate treatment which could have improved the capacity for adequate parental functioning;

….

(3) The 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;

W. Va. Code § 49-4-604(d)(1 & 3) (2020).

[7, 8] We have held:

As a general rule, the least restrictive alternative regarding parental rights to custody of a child under West Virginia Code § 49-4-604 (2020) will be employed; however, courts are not required to exhaust every speculative possibility of parental improvement before terminating parental rights 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 [delayed] by numerous placements.

Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, [West Virginia Code § 49-4-604 (2020)] 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(c)] that conditions of neglect or abuse can be substantially corrected.

Syl. Pts. 1 and 2, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980).

[9, 10] There was ample evidence found within the circuit court’s order and the record in this case demonstrating that there was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future and that it was necessary for H.T.’s welfare to terminate M.L.’s parental rights. See W. Va. Code § 49-4-604(c)(6) (permitting the circuit court to terminate parental rights in such situations.). The circuit court outlined that the present proceeding was not M.L.’s first experience with the abuse and neglect system. She had two prior proceedings relating to three other children, that all concluded with M.L. receiving a Disposition Five resolution. The circuit court found that there were no additional services of which M.L. could avail herself that could potentially remedy the conditions of abuse and neglect. Indeed, the record demonstrated that M.L. continued to test positive for drugs following her self-proclaimed sobriety.

M.L.’s argument that she achieved sobriety and should have H.T. returned to her custody is unpersuasive because she tested positive for drugs following her completion of the latest in-patient program she attended. Although she avers that one of these test-results was a false positive, she failed to offer any admissible evidence aside from her own self-serving statements supporting that contention. Thus, the circuit court did not err in determining that termination of M.L.’s parental rights was in the best interest of H.T. when confronted with M.L.’s recurring, sporadic periods of sobriety, followed by spirals into addiction.

[11] The circuit court’s options at the time of the modification hearing were to keep H.T. in the kinship placement with J.A. and D.A. to keep M.L.’s parental rights intact or terminate M.L.’s parental rights and allow H.T. to be adopted. We have previously stated that "the precedent of this Court supports the proposition that children are entitled to permanency to the greatest degree possible." In re Isaiah A., 228 W. Va. 176, 182, 718 S.E.2d 775, 781 (2010). We reiterate that "[t]he controlling standard that governs any dispositional decision remains the best interests of the child." Syl. Pt. 4, in part, In re B.H., 233 W. Va. 57, 754 S.E.2d 743 (2014).

[12] H.T.’s welfare is the guiding factor in this matter. The circuit court had to determine whether it was in H.T.’s best interest to allow M.L. to retain her parental rights and keep H.T. in his kinship placement in the hope that possibly at some point in the future M.L. might finally break the shackles of addiction. The circuit court did not err in determining that H.T.’s best interest demanded M.L.’s parental rights be terminated, to allow H.T. permanency through adoption. The circuit court did not have to "exhaust every speculative possibility of parental improvement before terminating parental rights." Syl. Pt. 1, in part, In re R.J.M. Indeed, we have affirmed termination of parental rights in a similar situation. See In re J.C., No. 21-0437, 2022 WL 293515 (W. Va. Feb. 1, 2022) (memorandum decision). In In re J.C., we affirmed a modified disposition based upon a material change in circumstances where a mother "had seven years to address her issues," had failed to do so, and such modification was in the best interest of the child to "provide him with the stability and permanency he desires." Id. at *5.

In this situation, given M.L.’s long, documented history of substance abuse and the ‘necessity of establishing permanency for H.T., the circuit court did not err in finding that there was no reasonable likelihood that the conditions of abuse and neglect could be corrected in the near future and that termination of M.L.’s parental rights was in the best interest of H.T.

IV. CONCLUSION

Accordingly, the circuit court’s termination of M.L.’s parental rights is affirmed.

Affirmed.

JUSTICE WOOTON dissents and reserves the right to file a separate opinion.

JUSTICE BUNN dissents and reserves the right to file a separate opinion. BUNN, Justice, dissenting:

While petitioner, M.L., has a long history of DHS intervention, DHS did not seek to terminate her parental rights until she made significant progress toward recovery and sought to establish a relationship with her youngest child, H.T., by filing a motion to modify her disposition. Because the majority opinion essentially punishes M.L. for her efforts and fails to properly consider H.T.’s best interest in maintaining the status quo, I respectfully dissent. Even though I do not believe that M.L. has established that her reunification with H.T. is presently in the child’s best interests, I disagree with the majority’s conclusion that H.T.’s best interests required terminating M.L.’s parental rights.

I begin by supplementing the facts provided by the majority to give a more complete picture of the events below. H.T. was born drug addicted, and DHS filed an amended petition against M.L. to include H.T. in an ongoing abuse and neglect proceeding involving M.L.’s twin children, who are not at issue in this case. During the abuse and neglect proceeding, M.L. was unable to successfully complete a six-month improvement period. While she successfully completed a postpartum substance abuse treatment program, her drug screening was sporadic. She produced negative screens for just over a month at one point, and for about six weeks at another, before she finally quit screening altogether at the end of October 2019. Also during this improvement period, M.L. engaged in some supervised visitation with H.T. The number of visits, their nature and duration, as well as the span of time over which they occurred are not apparent from the record.

During a hearing held in December 2019, at the conclusion of M.L.’s improvement period, counsel for DHS recounted that M.L. had temporarily benefitted from services and had "a period" of positive results, but then she "just stop[ped] participating." Given her failure to successfully compete her improvement period and overcome her addiction, counsel for DHS opined that "the best option she can have is a Disposition 5 until she can find her own way to maintain that consistency and sobriety." (Emphasis added). Thus, it is apparent that during the abuse and neglect proceedings involving H.T., M.L.’s sobriety lasted only six weeks at the longest, yet DHS did not seek termination, instead expressing its willingness to offer M.L. an opportunity to achieve consistency and sobriety on her own.

A DHS court summary dated January 30, 2020, reported that M.L. was having weekly supervised visitation with H.T. that was going well, and that M.L. admitted she had relapsed. According to the report, M.L.

was informed Disposition [5] would not take her rights away even if that was the disposition that was determined appropriate by the [c]ourt. She was told she could get things straightened out and seek to modify that type of disposition. She was told it was not time to give up and it never is.

The report further detailed that M.L.’s substance abuse had been ongoing for many years, she had been sporadic in drug screening and participating in services, and she was unable to maintain sobriety when she was experiencing stress. In fact, it was reported that M.L. "will demonstrate the capability to pull herself together for a period of time[,] but after a few months she seems to begin struggling and then [experiences] complete dissolution of all the skills she has gained, and she relapses." Nevertheless, DHS reported that it "would not object to a Disposition [5] … which would allow [M.L.] to make progress of her own accord and [in] her own time. Upon being able to establish and maintain sobriety[,] she could then return to this [c]ourt and seek a modification of such a disposition."

At a subsequent disposition hearing in June 2020, DHS advised the circuit court that it did not object to M.L. being granting a Disposition 5. H.T.’s Guardian ad Litem ("GAL") similarly stated her belief that "a Disposition 5 is reasonable and appropriate and in the children’s best interest[.]" Accordingly, the circuit court granted M.L. a Disposition 5.^1a H.T. remained in the custody of his father, and M.L. was permitted visitation at the father’s discretion.

From August 2020 to April 2021, M.L. participated in a long-term recovery program at the Clarksburg Mission and Recovery Center. Lou Ortenzio, the executive director of the Center, testified that M.L. "seriously worked [on] her recovery," was involved in classes at the Center, and went to outside AA, NA, and Celebrate Recovery meetings. She also complied with the Center’s drug testing requirements, and Mr. Ortenzio was not aware of her failing any drug screen during her time in the program. She also received psychiatric or psychological counseling through agencies that work cooperatively with the Center. After M.L. completed the program in April 2021, Mr. Ortenzio continued to see her when she was at the Center participating in services offered by other entities who utilized the Center’s facilities. He also spoke to her on the phone several times. Mr. Ortenzio described M.L. as having had a "[d]ramatic recovery," and stated that he had observed no evidence of a relapse.^2a

After H.T.’s father suddenly and unexpectedly died of an overdose in June 2021, the court granted temporary guardianship of H.T. to his paternal relatives J.A. and D.A. M.L. did not have a phone number for these relative guardians and used Facebook messenger to communicate with them and to schedule visitation with H.T. M.L. had two in-person visits and a few video chats with H.T. Neither DHS nor H.T.’s GAL sought to alter M.L.’s parental rights following the death of H.T.’s father.

M.L. waited until she had been drug-free for a year and then, on September 16, 2021, filed a pro-se motion to modify the dispositional order as to H.T. and seeking reunification. After M.L. filed her pro-se motion for modification, H.T.’s guardians blocked her from their social media so that she could no longer communicate with them. The circuit court appointed new counsel for M.L., and counsel filed a second motion to modify the disposition in February 2022. At a hearing on the motion, M.L.’s counsel expressed his hope that the court might, at least, grant formal visitation. DHS and H.T.’s GAL then responded with a joint motion to modify M.L.’s Disposition 5 and to terminate her parental rights. Thereafter, H.T.’s guardians, J.A. and D.A., filed a motion to intervene and seeking termination of M.L.’s parental rights. The circuit court granted the motion to intervene, and ultimately denied M.L.’s motion to modify. Instead, the court granted DHS and the GAL’s joint motion to modify, and terminated M.L.’s parental rights to H.T.

A. Modification

Procedurally, this case was before the circuit court on competing motions to modify disposition, one by M.L., and a joint motion by DHS and H.T.’s GAL. West Virginia Code § 49-4-606 governs modification of a dispositional order and states in relevant part:

Upon motion of a child, a child’s parent or custodian or the department alleging a change of circumstances requiring a different disposition, the court shall conduct a hearing … and may modify a dispositional order if the court finds by clear and convincing evidence a material change of circumstances and that the modification is in the child’s best interests.

W. Va. Code § 49-4-606(a). Accord W. Va. R. Child Abuse & Neglect P. 46 (providing that a circuit court may modify or supplement an order, following a hearing, "upon a showing of a material change of circumstances" and "if, by clear and convincing evidence, it is in the best interest of the child."). Simply put, West Virginia Code § 49-4-606(a) "clearly provides two prerequisites to modification of disposition. First, there must be a showing of material change in circumstances, and second, the alteration must serve the best interests of the child." In re S.W., 236 W. Va. 309, 313, 779 S.E.2d 577, 581 (2015). 1. Material change in circumstances. M.L.’s motion to modify her disposition outlines that in the months following the circuit court’s June 30, 2020 order granting her a Disposition 5 as to H.T., she

completed long-term in-patient rehabilitation. She has been clean and sober for over fifteen months. She is drug testing regularly. She is employed and has a fit, apt, and suitable home.

In addition, during her recovery, she continued to exercise regular visitation with the Infant Respondent, [H.T.] (sometimes in person and more often through video chat via the Facetime video app). Said visitation occurred regularly at behest of the Respondent Father.

(Footnote omitted).

These are the material changes in circumstances relied upon by M.L. in seeking a modification of the circuit court’s order granting her a Disposition 5, as explained in M.L.’s motion: "Based on the Respondent Mother’s completion of a drug rehabilitation program, her ongoing sobriety, and her keeping of steady employment and safe and suitable home, there is clear and convincing evidence of a material change in circumstances."^3a

The fact that M.L. had experienced a material change in circumstances is supported by a DHS report prepared in anticipation of a hearing on the modification motions, which stated "[t]he Department [DHS] must acknowledge that [M.L.] has had a material change in circumstances by completing treatment at St. Joseph’s Recovery Center and seeking the support of the Clarksburg Mission in maintaining her sobriety since February 2021." Even the circuit court’s order denying modification and terminating M.L.’s parental rights concluded "[t]here has likely been a tentative material change of circumstance in that the Respondent Mother, but for two (2) positive drug screens (to the parties’ knowledge), has been sober for a period of time since the granting of the alternative disposition in this matter."^4a

Rather than address the merits of the facts relied upon by M.L. to show a material change in circumstances, the majority erroneously refers to the second prong of the modification test to conclude, in a footnote, that the circuit court rejected them based on its assessment of the child’s welfare. The majority compounds its flawed analysis by failing to address whether the circuit court erred by purportedly rejecting M.L.’s efforts at sobriety as establishing a material change in her circumstances.^5a

The evidence produced by M.L. was sufficient to meet the first prong of the two-part test required to modify a disposition. As the record plainly demonstrates, M.L. had a ten-year history of CPS involvement and a pattern of multiple relapses after achieving periods of sobriety. When she was granted a Disposition 5 in relation to H.T., she had been unable to successfully complete the terms and conditions of her improvement period. She had produced negative drug screens over a six-month period, but she missed multiple screens during that period and ultimately suffered yet another relapse. However, when M.L. filed her motion for modification, she had been clean and sober for over fifteen months, was employed, had a suitable home, and was regularly drug testing. At a hearing in April 2022, M.L. testified that she had been sober for nineteen months. Granted, the drug-screen records M.L. produced with her modification motion contained two isolated positive screens.^6a M.L. claimed these were false positives caused by allergy medication she was taking; however, she failed to provide admissible evidence supporting her claim. Nevertheless, Lou Ortenzio, the executive director of the Clarksburg Mission and Recovery Center testified that M.L. had experienced a "[d]ramatic recovery," and, based on his regular meetings with her and seeing her when she was at the Center participating in other services, he had no reason to suspect that she had suffered a relapse. Even the GAL commented that she was "very impressed with how good [M.L.] look[ed]" and was "proud of the progress [she had] made." Unquestionably, M.L. experienced a material change in circumstances and met the first prong of the modification test.

The DHS and GAL were similarly required to support their joint motion to modify with evidence of a material change in circumstances warranting the modification. The circuit court failed to make proper findings in this regard, but the death of H.T.’s custodial parent, D.T., plainly supplied the requisite change.

2. Best Interests Of The Child. The second factor that must be established before modification may be granted is that "the alteration must serve the best interests of the child." In re S.W., 236 W. Va. at 313, 779 S.E.2d at 581. Here, the circuit court improperly analyzed the best interest of H.T. only in the context of granting custody of the child to M.L., concluding "it is contrary to the welfare of the Infant Respondent to modify the Respondent Mother’s alternative disposition and be returned to her physical and legal custody." The majority provides a similarly limited analysis, concluding that "M.L.’s long history of DHS involvement, on-again and off-again sobriety, and the exhaustion of services she could receive made her an inappropriate placement for H.T." Maj. Op. at 151.

While I believe that M.L. has made tremendous progress toward becoming a fit parent, I agree that, at this point, granting her physical custody of H.T. would not be in the child’s best interests. However, neither the circuit court nor this Court were limited solely to considering the disposition of reunification. During an early hearing on M.L.’s motion to modify, her counsel explained that his client was "in a much better position now," and expressed the hope that the circuit court would, at a minimum, grant court-ordered visitation. I do not dispute the evidence that J.A. and D.A. have been H.T.’s primary parental figures since his birth. They have provided him a stable and loving home, and he has undoubtedly developed a strong bond with them. However, given the level of sobriety achieved by M.L., and her employment and stable home, I believe H.T.’s interests are best served by denying both motions for modification, leaving the Disposition 5 in place to preserve the status quo as to H.T.’s custody, and providing him an opportunity to form a relationship with his biological mother through court-ordered visitation. See, e.g., In re S.C., 245 W. Va. 677, 690, 865 S.E.2d 79, 92 (2021) (acknowledging that a "guardianship under disposition 5 is the only dispositional alternative that lends itself to leaving Petitioner’s parental rights intact while recognizing the paramount best interest of the child," and finding that under the facts presented "disposition 5 [would] not interfere with the permanency plan for the child. There is no question that she is in a stable family environment with her great-grandparents. So, their appointment as the child’s guardians under disposition 5 maintains the status quo of her family unit.").

When M.L. was in the throes of her addiction, a relationship with H.T. was not possible, and a Disposition 5 was determined to be in H.T.’s best interest. "At the conclusion of H.T.’s initial abuse and neglect proceeding, DHS met its burden to prove that Disposi- tion Five was appropriate and in H.T.’s best interest." Maj. Op. at 150 (emphasis added). At that time, M.L. was repeatedly informed that the Disposition 5 would permit her "to make progress of her own accord and [in] her own time," and that "[u]pon being able to establish and maintain sobriety[,] she could then return to [the circuit court] and seek a modification of such a disposition." M.L. did what was suggested; she worked on her sobriety and made dramatic progress. Yet when she achieved more than a year of sobriety and sought a modification as DHS told her she would have the option to do, she was met with a competing motion to modify and to terminate her parental rights. Notably, DHS and the GAL sought to modify the Disposition 5 and terminate M.L.’s parental rights only in response to her motion and more than nine months after D.T.’s death—an obvious punishment for her effort to play a role in her son’s life. The Disposition 5, deemed to be in H.T.’s best interest when his mother was in a much worse state, was then improperly modified by the circuit court in favor of termination. See In re B.W., 244 W. Va. 535, 539-40, 854 S.E.2d 897, 901-02 (2021) (criticizing circuit court, in part, for modifying disposition by imposing "a harsher disposition, despite the apparent improvement in Petitioners’ circumstances from those at the conclusion of the previous dispositional hearing").

The majority relies, in part, on In re S.W., 236 W. Va. 309. 779 S.E.2d 577. In that case we found the child's best interests were served by maintaining the status quo and directing the lower court to establish a visitation schedule. We commended the mother "on her extremely substantial success in conquering her addiction Issues" and encouraged her "meaningful and extensive involvement in the life of her son." Id. at 315, 779 S.E.2d at 583. This case should have been similarly resolved. Maintaining the status quo with J.A. and D.A. serving as H.T.’s custodial guardians while providing scheduled, court-ordered visitation between M.L. and H.T. would have served H.T.’s joint interests in a stable, loving home and the opportunity to form a positive relationship with his biological mother, so long as she continued in her sobriety.

B. Termination

For many of the same reasons I discuss above, I believe the circuit court erred by terminating M.L.’s parental rights at this juncture. Again, when M.L. was unsuccessful in her battle against her addiction, DHS, the GAL, and the circuit court all agreed that termination was unnecessary and that H.T.’s best interests were served by granting M.L. a Disposition 5. However, once she had made great strides toward sobriety, and fatefully filed a motion to modify her disposition, termination was deemed to be the only option that served H.T.’s best interest. If termination was not warranted when M.L. could not successfully complete an improvement period due to her addiction, it certainly was not warranted after she successfully completed a long-term recovery program; had, with two isolated exceptions, produced consistently negative drug screens for nineteen months; had been described as having a "[d]ramatic recovery" by the executive director of a long-term recovery center, who had observed no evidence of a relapse; was complimented on how well she looked during a modification hearing; and had obtained employment and a stable home with her mother. These facts belie the circuit court’s conclusion that there was "no reasonable likelihood that the conditions of neglect or abuse [could] be substantially corrected." W. Va. Code § 49-4-604(c)(6). See also Syl. pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (per curiam) (" ‘Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, [West Virginia Code § 49-4-604(c),] 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(c)(6)] 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)."). While M.L. admittedly has a long history of failing to overcome her addiction, at the time she sought modification she had made significant progress toward substantially remedying the conditions of neglect and abuse that led to her losing custody of H.T. A proper resolution for this case would have been to deny the motions to modify, preserve the status quo with J.A. and D.A. seiwing as H.T.’s guardians, and ordering scheduled visitation between H.T. and M.L., provided she continues to maintain her sobriety.

Lastly, I note that the circuit court did allow for post-termination contact between M.L. and H.T, but rather than provide a schedule of visitation, the court improperly ordered that it could occur only at H.T.’s request. This is problematic for several reasons. First, H.T. is a young child who does not possess the appropriate level of maturity to request visitation. Furthermore, there has been a lengthy passage of time since H.T. had any visitation with M.L., so it is improbable that he would request visitation with her now. Finally, the reality of placing the choice to request visitation on H.T. is that his guardians will be exercising their discretion in this respect, and they ceased all contact with M.L. after she filed her petition for modification in obvious retaliation for her filing. By allowing continued contact, the circuit court had to conclude that it was in H.T.’s best interest. "Undoubtedly, [a child’s] best interests must be the primary standard by which we determine [the child’s] rights to continued contact with other significant figures in [the child’s] life." Honaker v. Burnside, 182 W. Va. 448, 452, 388 S.E.2d 322, 325 (1989). We also have made clear that "visitation is the right of the child; as such, this right cannot be held hostage." In re K.S., 246 W. Va. 517, 530, 874 S.E.2d 319, 332 (2022). To the extent that the circuit court ordered continued contact between H.T. and M.L., it should have managed the visitation by court order setting an appropriate schedule and guidelines.

For all of the above stated reasons, I respectfully dissent. I am authorized to state that Justice Wooton joins me in this dissent.