                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                     FILED
In re J.C.
                                                                                  June 11, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0091 (Mercer County 17-JA-65)                                             SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Mother L.C., by counsel Earl H. Hager, appeals the Circuit Court of Mercer
County’s January 19, 2018, order terminating her parental, custodial, and guardianship rights to
J.C.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Brandolyn N. Felton-Ernest, filed a response in support of the circuit court’s order. The guardian
ad litem (“guardian”), Shannon L. Baldwin, filed a response on behalf of the child in support of
the circuit court’s order. On appeal, petitioner argues that the circuit court erred by terminating
her parental, custodial, and guardianship rights without a determination as to whether she could
care for the child with extensive long-term assistance.

        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 2017, the DHHR filed a petition alleging that J.C. suffered significant
physical injuries that were inflicted by his father. The DHHR alleged that when questioned about
the physical abuse, petitioner described a history of abuse by the father against herself and the
child. Despite petitioner’s acknowledgement of the abuse, the DHHR alleged that petitioner
never expressed concern regarding the father’s ability to care for the child. Additionally, the
DHHR alleged that petitioner’s home was inappropriate for a child due to exposed insulation and
a lack of running water, food, and other items required for the care of an infant. The circuit court
held a preliminary hearing and found that imminent danger existed if the child were to be
returned to petitioner.

       In April of 2017, petitioner underwent a psychological evaluation. The psychologist
noted that petitioner suffered from “significant cognitive limitations, immaturity, a lack of
                                                            
              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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insight, and a limited understanding of the needs and demands that come with raising a child.”
The psychologist stated that petitioner’s serious learning problems would make adopting new
parenting skills “extremely difficult, if not potentially impossible.” During the evaluation,
petitioner indicated that she believed she could care for the child without any assistance and did
not recognize the shortcomings in her parenting. The psychologist recommended that petitioner
be instructed through verbal discussion or audiovisual materials; however he expressed doubt
that any instruction would be effective. Further, the psychologist noted a history of psychiatric
problems, for which petitioner was medicated in the past, and recommended a psychiatric
evaluation to determine the efficacy of a pharmacological intervention. The psychologist
concluded that petitioner should be closely observed during supervised visitations to see if she
would implement new parenting skills. If petitioner failed to make use of new skills, then the
psychologist opined that it was unlikely that she would ever improve.

         The circuit court held an adjudicatory hearing in November of 2017. Petitioner testified
that the father physically abused the child in her presence in the past, including pushing the child
into the edge of a coffee table and forcing a baby bottle into the child’s mouth so hard that his
mouth bled. Additionally, petitioner testified that the father became extremely violent when
intoxicated. However, when petitioner needed to go to the hospital and needed temporary
placement for the child, she asked the father to take care of him instead of seeking help from
other family members in the area. The child was injured during the most recent placement with
the father. Ultimately, the circuit court found clear and convincing evidence that petitioner failed
to protect the child from his father and adjudicated her as an abusing parent. Further, the
guardian moved to suspend visitation due to some irregular behavior that occurred during the
child’s visits with petitioner. According to the guardian, the child would “space out” for minutes
at a time and become unresponsive to any stimuli. Additionally, petitioner had not participated in
visitation since early October due, in part, to a brief twenty-two day incarceration for animal
cruelty and, in part, because petitioner moved out of the county. The circuit court granted the
motion to suspend supervised visitations.

         In January of 2018, the circuit court heard evidence on the DHHR’s motion to terminate
petitioner’s parental rights and petitioner’s motion for a post-adjudicatory improvement period.
A DHHR worker testified that petitioner participated in parenting classes but failed to
incorporate and implement the skills taught to her. The worker believed that petitioner’s inability
to parent was due to her mental disability and lack of understanding. The visitation supervisor
testified that petitioner needed reminding to do basic tasks during visitations, such as changing
the child’s diaper and interacting with the child. The visitation supervisor testified that for
multiple visits petitioner would simply play a recorded song repetitively until the child fell
asleep. The visitation provider did not believe there was a bond between petitioner and the child.
Additionally, the visitation supervisor testified that petitioner ignored simple safety tips given
during visitations and would not retain any tips or pointers given during prior visitations. The
parenting class instructor testified that she was aware of petitioner’s special needs for slow and
thorough instruction and that she was careful to fully explain and reiterate lessons to petitioner
and request feedback from her to be sure she understood the lessons. The instructor testified that,
despite careful instruction, petitioner failed to implement the skills addressed in the classes. Also,
petitioner’s mother testified that when she cleaned petitioner’s home while petitioner was
incarcerated for animal cruelty, the home was filthy with animal feces and that she filled eighty


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trash bags with debris while cleaning. Finally, petitioner testified that she had a psychiatric
appointment to determine if she needed medication. She testified that she moved into a new
apartment in late December of 2017 which, she alleged, was clean and suitable for a child.
Further, petitioner testified that she would participate in any services required.

        Ultimately, the circuit court found that petitioner would be unable to improve her
parenting through continued instruction and denied her motion for a post-adjudicatory
improvement period. The circuit court concluded that there was no reasonable likelihood that
petitioner would be able to correct the conditions of abuse or neglect and that it was necessary
for the welfare of the child to terminate her parental, custodial, and guardianship rights.
Accordingly, the circuit court terminated petitioner’s parental, custodial, and guardianship rights
by its January 19, 2018, order. Petitioner now appeals that order.2

              The Court has previously established the following standard of review:

                      “Although conclusions of law reached by a circuit court are subject to de
              novo review, when an action, such as an abuse and neglect case, is tried upon the
              facts without a jury, the circuit court shall make a determination based upon the
              evidence and shall make findings of fact and conclusions of law as to whether
              such child is abused or neglected. These findings shall not be set aside by a
              reviewing court unless clearly erroneous. A finding is clearly erroneous when,
              although there is evidence to support the finding, the reviewing court on the entire
              evidence is left with the definite and firm conviction that a mistake has been
              committed. However, a reviewing court may not overturn a finding simply
              because it would have decided the case differently, and it must affirm a finding if
              the circuit court’s account of the evidence is plausible in light of the record
              viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223,
              470 S.E.2d 177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

        On appeal, petitioner argues that the circuit court erred in terminating her parental,
custodial, and guardianship rights because the DHHR did not determine whether she could
provide for the child with intensive long-term assistance. Petitioner asserts that her intellectual
capacity hindered her from improving her parenting. She argues that, pursuant to Syllabus Point
4 of In re Miranda, 223 W.Va. 512, 678 S.E.2d 18 (2009), the DHHR should have determined
whether she could have made improvements if given intensive long-term assistance.
Additionally, the psychologist recommended a psychiatric evaluation, but the DHHR never
followed through with that recommendation. Petitioner argues that the DHHR failed to make an
adequate determination and, therefore, the circuit court clearly error in terminating her parental,
custodial, and guardianship rights. Upon our review of the record, we disagree that the DHHR
failed to make such determination.

                                                            
              2
        The father’s parental rights were also terminated in that order. According to the parties,
the child is placed in a specialized foster home after the removal from his parents. His
permanency plan is adoption in that home.
                                                               3
 
 
       This Court has explained that:

               “[w]here allegations of neglect are made against parents based on
       intellectual incapacity of such parent(s) and their consequent inability to
       adequately care for their children, termination of rights should occur only after the
       social services system makes a thorough effort to determine whether the parent(s)
       can adequately care for the children with intensive long-term assistance. In such
       case, however, the determination of whether the parents can function with such
       assistance should be made as soon as possible in order to maximize the
       child(ren)’s chances for a permanent placement.” Syllabus point 4, In re Billy Joe
       M., 206 W.Va. 1, 521 S.E.2d 173 (1999).

Maranda T., 223 W.Va. at 513, 678 S.E.2d at 19, Syl. Pt. 4. Thus, the standard set forth above
requires the DHHR to determine whether parents can adequately care for a child with intensive
long-term assistance, but does not require that such assistance be provided. The record indicates
that an adequate determination was made. While petitioner is correct that the evaluating
psychologist made recommendations as to further evaluations, she ignores other sections in the
report that indicate the psychologist’s concern that she would never be able to learn how to
properly parent the child. Despite multiple reservations, the psychologist recommended that
petitioner be given a period of instruction and supervised visitation to determine if she could
improve her parenting. The DHHR followed this recommendation and the providers all testified
that petitioner made no progress despite the provision of those services. Moreover, petitioner
ignored safety tips provided during visitation and never utilized the lessons from her parenting
classes.
        Petitioner further argues that the service providers were not certified to educate
individuals with intellectual disabilities. However, petitioner cites no authority requiring
providers to hold such certification, and certification is not required in the standard set forth
above. Moreover, the service providers were experienced in their fields and detailed the
alterations in their typical instruction to suit petitioner. Thus, we do not find this argument
persuasive. The circuit court’s ultimate decision to terminate petitioner’s parental, custodial, and
guardianship rights was consistent with the psychologist’s recommendations. Accordingly,
petitioner is entitled to no relief on this issue.
         Second, we find that the circuit court properly terminated petitioner’s parental, custodial,
and guardianship rights upon a finding that there was no reasonable likelihood that petitioner
could substantially correct the conditions of abuse and neglect and that termination was
necessary for the child’s welfare. According to the evaluating psychologist, if petitioner’s early
supervised visitation showed no signs of improvement from her parenting classes, then it was
unlikely that petitioner would ever learn the skills to adequately care for the child. There was
ample uncontradicted testimony that petitioner showed no signs of improvement during
visitations. Further, visitation appeared so detrimental to the child that it was necessarily
suspended. Accordingly, the circuit court found that there was no reasonable likelihood that
petitioner could correct the conditions of abuse and/or neglect and that termination of her
parental, custodial, and guardianship rights was necessary for the child’s welfare. Pursuant to
West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate a parent’s parental,
custodial, and guardianship rights upon such findings.

                                                 4
 
 
       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 19, 2018, order is hereby affirmed.


                                                                                      Affirmed.

ISSUED: June 11, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

Justice Loughry, Allen H., II suspended and therefore not participating.
 




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