                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

In re M.R. and J.R.
                                                                                    FILED
                                                                                  May 24, 2019
No. 18-1065 (Kanawha County 17-JA-220 and 17-JA-221)                            EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION



         Petitioner Mother K.R., by counsel Edward L. Bullman, appeals the Circuit Court of
Kanawha County’s November 7, 2018, order terminating her parental rights to M.R. and J.R.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M.
Parsley, filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”),
W. Jesse Forbes, filed a response on behalf of the children in support of the circuit court’s order.
On appeal, petitioner argues that the circuit court erred in terminating her parental rights without
first providing her an improvement period.

       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 May of 2017, the DHHR filed a child abuse and neglect petition alleging that petitioner
failed to provide the children with necessary food, clothing, supervision, and housing. According
to the DHHR, the children were found inside the home in separate “enclosures” made of plywood,
which were locked from the outside. Inside two-year-old J.R.’s enclosure, the DHHR found a bed
with no mattress, a few toys, and a plate of food on the floor. The DHHR alleged that J.R. was
naked, the enclosure smelled of urine, and piles of fecal matter were observed on the floor. The
DHHR alleged that five-year-old M.R.’s enclosure was similarly situated with fecal matter on the
floor and smeared on the walls and a strong odor of urine. M.R. was also found naked, lying on
the floor as his enclosure did not contain a bed. Petitioner waived her preliminary hearing.

       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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        The circuit court held an adjudicatory hearing in July of 2017, and petitioner stipulated that
she subjected her children to “unsafe living conditions, [her] untreated mental illness, and domestic
violence.”2 The circuit court found that petitioner was an abusing parent and that the children were
abused and neglected children. The circuit court also ordered that petitioner participate in a
psychological evaluation and in all recommendations contained therein.3 The circuit court denied
petitioner’s motion for supervised visitation until the evaluation was completed. In February of
2018, petitioner moved for an opportunity to participate in therapy to address a diagnosis resulting
from the psychological examination, and the circuit court granted that motion. Petitioner also
moved for supervised visitations with the children, which the circuit court denied.

        In March of 2018, the circuit court held a dispositional hearing and heard testimony from
petitioner’s parental fitness evaluator that petitioner’s prognosis for improvement was poor. The
evaluator explained that, during the evaluation in September of 2017, petitioner “emphatically
stated” that she never put the children in the enclosures, “that this never happened.” Further, the
evaluator noted that petitioner not only had untreated mental health issues, but she also “has a
history of noncompliance with mental health treatment.” The evaluator testified that, according to
petitioner’s responses on a personality assessment, her motivation for treatment was “very low.”
Finally, the evaluator explained that she did not believe petitioner would “attain minimally
adequate parenting in the allotted time usually given for cases of this type.” The circuit court
continued the dispositional hearing to hear further evidence.

        The circuit court held the final dispositional hearing in August of 2018.4 Petitioner’s
therapist testified that she had been treating petitioner for anxiety and depression for less than two
months and had met with petitioner for less than ten hours total. The therapist testified that she did
not see the enclosures that the children were kept in and that petitioner did not reveal to her that
she previously admitted to law enforcement that she locked the children inside the enclosures.
Petitioner’s parenting educator stated that petitioner “minimizes the events that took place.” As an
example, the educator testified that petitioner stated that Child Protective Services showed up “on
a bad day.” The educator clarified that petitioner did not seek therapy until twelve months after
the removal of the children and only after the parental fitness evaluation was completed. Petitioner
admitted that the enclosures were unsafe and that, although it took several months, she recognized
why the conditions were not healthy for the children. Petitioner also testified she was currently


       2
         The DHHR amended the petition in July of 2017 to include petitioner’s oldest daughter,
M.S, as an infant respondent. However, M.S. reached the age of majority during the proceedings
and, therefore, is not at issue in this appeal.
       3
         The proceedings were delayed several times thereafter while the parties awaited the results
of this evaluation, which were provided in January of 2018.
       4
         The circuit court continued an earlier dispositional hearing in July of 2018 upon
petitioner’s motion due to the unavailability of a witness.




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employed and participating in parenting and adult life skills classes and therapy, but did not have
her own housing.

        Ultimately, the circuit court found that there was no reasonable likelihood that the
conditions of neglect or abuse could be substantially corrected in the foreseeable future based on
petitioner’s continued minimization of the conditions which led to the filing of the petition. The
circuit court found that petitioner failed to follow through with a reasonable family case plan
designed to reduce or prevent the abuse and neglect of the children. Further, the circuit court found
the best interests of the children required termination of petitioner’s parental rights. Accordingly,
the circuit court terminated petitioner’s parental rights by its November 7, 2018, order. Petitioner
now appeals that order.5

        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, this Court finds
no error in the proceedings below.

         On appeal, petitioner argues that the circuit court erred in terminating her parental rights
without first providing her an improvement period. Petitioner asserts that she demonstrated an
ability to care for the children “for the years preceding the filing of the petition.” Further, petitioner
argues that she proved that she was likely to fully participate in an improvement period because
she was able to find employment, participate in therapy and classes, and maintain a relationship
with her older daughter during the proceedings. However, petitioner’s argument is unpersuasive
because she ignores her failure to acknowledge her responsibility for the conditions of abuse and
neglect.

        West Virginia Code § 49-4-610(2)(B) provides that a circuit court may 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.” The decision
to grant or deny an improvement period rests in the sound discretion of the circuit court. See In re


       The father’s parental rights were also terminated below. According to the parties, the
        5

permanency plan for the children is adoption in their respective foster placements.
                                                    3
M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia law allows the circuit
court discretion in deciding whether to grant a parent an improvement period.”); syl. pt. 6, in part,
In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“It is within the court’s discretion to grant
an improvement period within the applicable statutory requirements . . . .”). On appeal, petitioner
argues that she was “continually faulted for not acknowledging her responsibility for the conditions
and for minimizing the conditions causing the removal.” However, this Court has recognized that
“[f]ailure 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.” 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)). Likewise, the
parental fitness evaluator determined that petitioner’s failure to acknowledge these issues and her
insistent denial that these conditions existed created a barrier for treatment.6 It is clear that
petitioner’s failure to acknowledge the situation and then her later minimization of the conditions
that led to the removal created a situation in which the conditions could not be corrected. As shown
above, the circuit court has the discretion to deny a motion for an improvement period, and we
find no abuse of discretion in this case.

        Further, this evidence supports the circuit court’s termination of petitioner’s parental rights.
West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental rights
upon findings that there is “no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected in the near future” and that termination is necessary for the children’s
welfare. West Virginia Code § 49-4-604(c)(3) provides that a situation in which there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes
one in which the abusing parent “ha[s] 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.” Even as
petitioner participated in services designed to correct the conditions of abuse and neglect, she
continued to minimize the circumstances in which the children were found. Clearly, petitioner was
not responding to the services that she was participating in, which was consistent with the
psychologist’s “poor” prognosis for parental improvement. Therefore, the circuit court’s finding
that there was no reasonable likelihood that the conditions of neglect or abuse could be
substantially corrected in the near future is supported by the record. Similarly, the termination was
necessary for the welfare of the children because petitioner did not accept responsibility for the
danger in which she placed the children. Simply put, the children would be at risk if returned to
her care.

       This Court has held as follows:




       6
        Petitioner argues that her case did not include any “aggravated circumstances” as
enumerated in West Virginia Code § 49-4-604(b)(7), but that the parties proceeded as though these
circumstances existed. Arguably, however, the conditions in this case could be considered “chronic
abuse,” which is an “aggravated circumstance” included in West Virginia Code § 49-4-604(b)(7).
Regardless, petitioner received services during the proceedings, which a finding of “aggravated
circumstances” would have prevented, and, therefore, petitioner’s argument lacks merit.
                                                   4
              “Termination 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(c)] 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). The circuit court’s findings that
there was no reasonable likelihood that the conditions of neglect or abuse could be substantially
corrected and that termination was necessary for the welfare of the children are supported by the
record. Therefore, we find no error in the circuit court’s termination of petitioner’s parental rights.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 7, 2018, order is hereby affirmed.

                                                                                            Affirmed.

ISSUED: May 24, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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