                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: D.B. & S.B.
                                                                                        FILED
                                                                                   November 23, 2015
                                                                                   RORY L. PERRY II, CLERK
No. 15-0209 (Morgan County 14-JA-33, 14-JA-34, 12-JA-20, & 12-JA-21)             SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA

                              MEMORANDUM DECISION

        Petitioner Mother H.W., by counsel William Prentice Young, appeals the Circuit Court of
Morgan County’s January 29, 2015, order terminating her parental rights to D.B. and S.B. The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Melinda
Dugas, filed its response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Nicholas Forrest Colvin, filed a response on behalf of the children in support of the
circuit court’s order. On appeal, petitioner alleges that the circuit court erred in determining that
the DHHR was not obligated to provide remedial services to her, in denying petitioner’s motion
for an improvement period, and in terminating her parental rights.1

        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.

        Petitioner has two biological children, D.B. and S.B., and two step-children, D.G. and
W.G.2 Petitioner’s biological children have been the subjects of two previous abuse and neglect
proceedings. The first petition was filed in 2005, during which petitioner received services
through the DHHR and successfully completed an improvement period. The second petition was
filed in 2012, during which petitioner was awarded an improvement period but chose to
relinquish her custodial rights to the children’s biological father rather than comply with the
terms of another improvement period. The second petition was ongoing at the time the third, and
underlying, abuse and neglect petition was filed. Although the third petition was initially filed to
protect the step-children, it was later amended to include petitioner’s biological children. The


       1
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
       2
        D.G. and W.G. are the adopted children of petitioner’s husband, J.W. Although they
were included in the petition below, petitioner makes no assignment of error regarding D.G. and
W.G. on appeal. As such, those children are not the subject of this appeal.
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conditions of abuse and neglect in all three petitions are petitioner’s substance abuse and mental
illness, and her involvement in domestic violence.

        In November of 2013, petitioner began a relationship with the father, J.W., and the two
were married on January 6, 2014. J.W. had two adopted children, D.G. and W.G., who were the
biological grandchildren of J.W.’s deceased previous wife. Petitioner resided with J.W. and his
two children. Petitioner’s biological children, D.B. and S.B. resided with their father. In May of
2014, petitioner and J.W. got into an argument over her abuse of prescription Klonopin and her
attempt to overdose on Klonopin after a disagreement she had with her ex-husband. Petitioner
and J.W.’s argument until it escalated into domestic violence, wherein petitioner punched and
scratched J.W. and cut him with a knife. D.G and W.G both witnessed the incident. After being
cut, J.W. ran to a local fire station for help. Petitioner continued to behave in an erratic manner in
front of her step-children. Both petitioner and J.W. were arrested. Petitioner became combative
with the police officers arresting her. She was tased after throwing herself on the floor and
kicking at the officers. The DHHR took emergency custody of D.G and W.G and filed an abuse
and neglect petition alleging that the children were abused and neglected through their exposure
to domestic violence. The petition contained additional allegations concerning petitioner’s arrest,
her instability, and her threats of suicide by overdose.

        In May of 2014, the circuit court held a preliminary hearing and adopted the emergency
protective order issued by the Magistrate Court of Morgan County to protect D.G. and W.G.
from petitioner. Thereafter, the petition was amended to include petitioner’s biological children,
D.B. and S.B., and to include allegations against J.W. for dismissing the protective order against
petitioner after its adoption by the circuit court, and for allowing petitioner to have contact with
D.G. and W.G. despite the circuit court’s no-contact order. The petition was amended a second
time to include the additional allegations that petitioner and J.W. disregarded the circuit court’s
no-contact order again and jointly planned, held, and attended a birthday party for one of J.W.’s
children.

        In November of 2014, the circuit court held an adjudicatory hearing wherein petitioner
and J.W. stipulated to the allegations of abuse and neglect, and were adjudicated as abusing
parents. Petitioner filed a motion for a post-adjudicatory improvement period which the DHHR
and the guardian opposed. The circuit court denied petitioner’s motion and found that petitioner
had been involved in multiple abuse and neglect proceedings over a nine-year period, and that
she did not comply with her last improvement period, which resulted in the removal of her
children, D.B. and S.B. The circuit court further found that petitioner had a long history of
substance abuse, mental illness, and domestic violence which led to the filing of the current
petition.

         In January of 2015, the circuit court held a dispositional hearing and, after reviewing the
evidence, terminated petitioner’s parental rights to D.B. and S.B. The circuit court denied
petitioner’s request for a dispositional improvement period and placed any decisions regarding
visitation at the guardian’s discretion. Petitioner now appeals from the dispositional order.




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        Petitioner’s sole argument on appeal is that the circuit court erred in finding that the
DHHR was not obligated to provide her with remedial services. 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 circuit court’s termination of petitioner’s parental rights. Specifically, petitioner
contends that because no remedial services were provided to her, the resulting denial of
petitioner’s motions for improvement periods and termination of her parental rights was likewise
in error. The Court, however, does not agree. We find that the circuit court properly terminated
petitioner’s parental rights upon a finding that she could not substantially correct the conditions
of abuse and neglect.

        Petitioner exposed her children to chronic abuse and endangered her step-children and
her biological children. Pursuant to West Virginia Code § 49-6-5(b), there is “no reasonable
likelihood that conditions of neglect and abuse can be corrected” when “based upon the evidence
before the court, the abusing adult . . . [has] demonstrated an inadequate capacity to solve the
problems of abuse or neglect on their own or with help.” Further, where a parent has “habitually
abused or are addicted to alcohol, controlled substances or drugs to the extent that proper
parenting skills have been seriously impaired . . . and [has] not responded to or followed through
the recommended and appropriate treatment which could have improved the capacity for
adequate parental functioning . . . “then there is no reasonable likelihood that the conditions
underlying the abuse can be substantially corrected in the near future.” W. Va. Code § 49-6­
5(b)(1) (2012). The circuit court based its finding that the DHHR was not obligated to provide
remedial services upon the evidence of petitioner’s nine-year history of continued drug and
alcohol abuse, mental illness, and domestic violence. Petitioner’s actions over the same nine-year
period show that she is unable to correct the conditions leading to the abuse and neglect with or
without assistance. The record on appeal shows that this is the third abuse and neglect petition
filed against petitioner and that the conditions of abuse identified in 2005 continue to exist.
Specifically, petitioner continued to abuse substances, failed to manage her mental illness, and
has engaged in more severe domestic violence, this time in front of her step-children. Petitioner
has had nine years to correct the conditions of abuse, and neglect but the conditions have further
escalated.

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         We have held that “in some instances, the only remedy is termination of parental rights
when there is no reasonable likelihood that the parenting deficiencies or abuse cannot be
substantially corrected.” In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). There is no
evidence on the record that petitioner is capable of remedying the conditions of abuse and
neglect substantially or in the near future. “When it is determined that the conditions that gave
rise to the removal of the child from the home cannot be remedied, W. Va. Code § 49-6-5(a)(6)
(2009) states that termination of the parental, custodial and guardianship rights of the abusing
parent is the remedy.” Id. at 569. Therefore, we find that the circuit court properly terminated
petitioner’s parental rights upon a finding that she could not substantially correct the conditions
of abuse and neglect.

        Petitioner further argues that the circuit court erred in denying her motion for an
improvement period. Specifically, petitioner contends that the DHHR should have provided her
with additional services to aid in correcting the conditions of abuse and neglect. Upon our
review, we find that petitioner was not entitled to an improvement period because the circuit
court properly terminated her parental rights upon a finding that she could not substantially
correct the conditions of abuse and neglect.

        West Virginia Code § 49-6-12(b)(2) provides that a parent may be granted an
improvement period where the parent proves by clear and convincing evidence that she is likely
to fully participate in the terms of the improvement period plan. However, that alternative is not
available where a circuit court determines that there is no reasonable likelihood that conditions of
abuse and neglect abuse can be substantially corrected in the near future. In re Emily, 208 W.Va.
553, 336, 540 S.E.2d 542, 552 (2000) (holding that “a dispositional improvement period is not
available to a respondent parent where a finding is made pursuant to W. Va. Code 49-6-5(a)(6)
(1977) that there is no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected in the near future . . . . “) (internal citations omitted).

       Based on our review of the record, we find that petitioner was not entitled to an
improvement period because the circuit court properly terminated petitioner’s parental rights
upon a finding that she could not substantially correct the conditions of abuse and neglect given
her continued substance abuse, mental illness, and escalating domestic violence.

        For these reasons, the circuit court’s termination of petitioner’s parental rights was not
error. For the foregoing reasons, the circuit court’s January 29, 2015, termination order is hereby
affirmed.
                                                                                         Affirmed.

ISSUED: November 23, 2015

CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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