                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: Z.S.
                                                                                      FILED
                                                                                 November 23, 2015
                                                                                 RORY L. PERRY II, CLERK
No. 15-0443 (Taylor County 14-JA-9)                                            SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA



                              MEMORANDUM DECISION
         Petitioner Mother B.C., by counsel Dennis B. Kittle, appeals the Circuit Court of Taylor
County’s April 13, 2015, order terminating her parental rights to Z.S. The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed its
response in support of the circuit court’s order. The guardian ad litem, Mary S. Nelson, filed a
response on behalf of the child. On appeal, petitioner alleges that the circuit court erred in
denying her request for an improvement period, in terminating her parental rights without
considering less restrictive alternatives, and in denying her motion for post-termination
visitation.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.

         In March of 2014, the DHHR filed a petition alleging that petitioner abused and
neglected Z.S. Specifically, the petition alleged that petitioner physically abused Z.S., engaged in
repeated episodes of domestic violence in Z.S.’s presence, and abused controlled substances
which led to Z.S.’s neglect. The petition further alleged that petitioner failed to provide Z.S. with
a stable living environment and failed to ensure his regular attendance at school. The petition
initially alleged that Z.S.’s biological father, C.S., failed to protect Z.S. from petitioner’s abuse
and neglect but that allegation was dismissed upon further investigation.2 That same month, the
circuit court held an adjudicatory hearing and found that there was an active mutual restraining
order between petitioner and her current husband resulting from a domestic violence incident

       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
        Petitioner and C.S. divorced shortly after Z.S.’s birth. C.S. resides in the State of
Colorado, and pursuant to a family court order, exercised visitation with the child primarily
during the summer.
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wherein the husband assaulted petitioner while he was under the influence of bath salts. The
circuit court also found that there was a prior protective order issued against petitioner for
physically abusing Z.S. in 2011. The circuit court noted that there was a chronic history of
domestic violence between petitioner and her mother, with whom petitioner and Z.S. lived. The
circuit court found that petitioner’s home was not safe for Z.S. and placed him in his paternal
grandfather’s custody pending further hearing.

         In June of 2014, the circuit court addressed biological father C.S.’s motion to assume
custody of Z.S. During an in-camera hearing, seven-year old Z.S. testified that both petitioner
and her husband physically abused him on numerous occasions. Specifically, Z.S. testified that
petitioner beat him with a belt, which was corroborated by medical records which explained that
Z.S.’s injuries were the result of non-accidental trauma consistent with the use of a belt. Z.S. also
testified that he witnessed numerous incidents of domestic violence between petitioner and her
husband and between petitioner and her mother. Z.S. testified that he did not feel safe living with
petitioner but he did feel safe living with his biological father C.S. Based on Z.S.’s testimony,
the circuit court placed Z.S. in C.S.’s physical custody.

         In July of 2014, the circuit court held a final adjudicatory hearing. The paternal
grandmother and petitioner’s parents all testified that they witnessed petitioner physically abuse
Z.S. They all also testified that they witnessed petitioner threaten her mother with physical
violence in Z.S.’s presence. Petitioner’s parents testified that they observed petitioner to be under
the influence of controlled substances on multiple occasions. They further testified that they
found drug paraphernalia, marijuana, and empty prescription pain medications bottles in
petitioner’s possession while she and Z.S. lived in their home. Petitioner denied these
allegations. Further, petitioner acknowledged that Z.S. was truant from school, but claimed she
had difficulty transporting him to school and did not want to transfer him into a new school
district. At the close of the hearing, the circuit court found that Z.S. spent a majority of his life in
the care of his grandparents and that petitioner chronically abused Z.S. The circuit court
concluded that because petitioner denied that any abuse occurred, she would not be able to
successfully complete an improvement period.

         In November of 2014, the circuit court held a dispositional hearing. The guardian
testified that petitioner refused to acknowledge any manner in which her conduct was abusive or
neglectful to Z.S. The guardian further testified that petitioner wrote a letter to the circuit court
that threatened to “take professional licenses” and have everyone involved with the proceedings
investigated. Petitioner also threatened to go on national television and air her grievances. The
guardian testified that petitioner’s letter infers that everyone is wrong except for her and that she
refuses to accept responsibility for any of her actions. According to the DHHR, petitioner refused
to acknowledge the issues of abuse, neglect, domestic violence, or substance abuse. Petitioner
testified that her letter had been misrepresented and that she would make efforts to correct the
issues of abuse and neglect. Additionally, despite admitting that she had a substance abuse
problem, petitioner testified that she stopped treatment at the suboxen clinic. Petitioner also
testified that she was a “bad mom” for not taking Z.S. to school. Based on the additional
testimony, the circuit court found that petitioner remained in denial regarding Z.S.’s abuse and
neglect, some eight months after the petition’s filing. The circuit court also terminated
petitioner’s parental rights based upon its finding that there was no reasonable likelihood that the

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conditions of abuse and neglect could be substantially corrected in the near future. The circuit
court then denied petitioner post-termination visitation, but provided that the Multidisciplinary
Team (“MDT”) could determine if post-termination visits with petitioner were in Z.S.’s best
interest. In April of 2015, the circuit court entered its order denying petitioner’s request for an
improvement period and terminating her parental rights to Z.S. Petitioner appeals from the
dispositional order.

       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 denial of petitioner’s request for an improvement period, or in
terminating her parental rights without considering a less restrictive alternative.

        First, we find no merit to petitioner’s argument that the circuit court erred in denying her
request for an improvement period. Pursuant to West Virginia Code § 49-6-12(b)(2), a circuit
court may only grant a post-adjudicatory improvement period when the parent “demonstrates, by
clear and convincing evidence, that the [parent] is likely to fully participate in the improvement
period . . . .” Although petitioner argues that she was likely to participate in an improvement
period, we find no indication in the record on appeal that she acknowledged a problem in her
parenting that required improvement. We have explained that

       [i]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
       of the basic allegation pertaining to the alleged abuse and neglect or the
       perpetrator of said abuse and neglect, results in making the problem untreatable
       and in making an improvement period an exercise in futility at the child’s
       expense.

In re: Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Based on the record before us, we cannot find
reversible error in the circuit court’s denial of petitioner’s motion for an improvement period
where she failed to acknowledge the existence of a problem that led to Z.S.’s physical injuries or

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his exposure to domestic violence in the home. Moreover, West Virginia Code § 49-6-12(b)
provides circuit courts with discretion in ruling on motions for improvement periods. The record
on appeal reflects that petitioner failed to meet the applicable burden. Therefore, the circuit court
was within its sound discretion in denying petitioner’s motion.

        As to petitioner’s argument that the circuit court erred in terminating her parental rights
without considering less-restrictive alternatives, this Court finds no error. The record on appeal
demonstrates that petitioner chronically abused Z.S. and exposed him to both substance abuse
and domestic violence. Z.S. testified that both petitioner and her current husband physically
abused him and that petitioner beat him with a belt. Medical records indicated that Z.S.’s injuries
were the result of non-accidental trauma consistent with the use of a belt. Z.S. also testified that
he witnessed numerous incidents of domestic violence between petitioner and her husband and
between petitioner and her mother. Z.S. further testified that he did not feel safe living with
petitioner. Likewise, petitioner’s parents testified that they witnessed her physically abuse Z.S.
and that they observed petitioner to be under the influence of controlled substances on multiple
occasions. They further testified that they found drug paraphernalia, marijuana, and empty
prescription pain medications bottles in petitioner’s possession while she and Z.S. lived in their
home.

         Pursuant to West Virginia Code § 49-6-5(b), “no reasonable likelihood that conditions of
neglect or abuse can be substantially corrected’ shall mean that, 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.” Based on the evidence set forth above,
it is clear that the circuit court was presented with sufficient evidence upon which to base this
finding, as well as the finding that termination of petitioner’s parental rights was necessary for
the child’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to
terminate parental rights upon these findings. Further, we have previously held that

               “[c]ourts are not required to exhaust every speculative possibility of
       parental improvement . . . 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 retarded by numerous placements.” Syl. Pt. 1, in part, In re
       R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 4, In re Cecil T., 228 W.Va. at 89, 717 S.E.2d at 873 (2011). While petitioner argues that
she did not abuse Z.S. and does not know who did, the circuit court’s finding that petitioner
continued to deny her parenting deficiencies indicates a failure to fully acknowledge the issues of
abuse present in this matter. As such, it was not error for the circuit court to terminate
petitioner’s parental rights instead of imposing a less-restrictive dispositional alternative.

         As to petitioner’s argument that the circuit court erred in denying her post-termination
visitation with Z.S., we find that petitioner’s assignment of error is not ripe for appeal. “The
usual prerequisite for our appellate jurisdiction is a final judgement[.]” Coleman v. Sopher, 194
W.Va. 90, 94, 459 S.E.2d 367, 371 (1995). The circuit court specifically left the issue of post­

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termination visitation open for review by ordering that the MDT meet to determine whether such
visitation would be in Z.S.’s best interest. Because there is no evidence on the record on appeal
to indicate that petitioner was denied post-termination visitation, the issue of post-termination
visitation remains open for the benefit of Z.S.

       For the foregoing reasons, we find no error in the decision of the circuit court and its
April 13, 2015, 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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