                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS
                                                                                FILED
                                                                            November 8, 2019
In re M.B.                                                                   EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
No. 19-0366 (Ohio County 18-CJA-89 MJO)



                              MEMORANDUM DECISION



        Petitioner maternal grandmother H.B., by counsel Michael B. Baum, appeals the Circuit
Court of Ohio County’s March 19, 2019, order terminating her custodial rights to M.B.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans,
filed a response in support of the circuit court’s order. The guardian ad litem, Joseph J. Moses,
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 in denying her motion for a post-adjudicatory
improvement period and terminating her custodial rights.

        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 August of 2018, the DHHR filed a child abuse and neglect petition alleging that six-
year-old M.B. was abandoned by his mother and left in petitioner’s care. The DHHR reported
that petitioner failed to provide proper medical care to M.B, including treatment for a condition
which caused M.B.’s toe to appear “completely black” and “swollen.” The DHHR further
alleged that petitioner’s home was “in a dilapidated state and filled with clutter,” including a
hallway full of toys and old rugs that was “waist-high” at its lowest point, and “almost to the
ceiling at its highest point.” The yard of the home was full of scrap metal and debris.

       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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Additionally, the DHHR alleged petitioner did not ensure that M.B. exercised proper hygiene
and noted that the child was not “potty trained.” During the DHHR’s investigation, the child
described that he suffered from “itches that won’t go away.” Petitioner denied that bed bugs were
in the home, but DHHR workers observed a “bed bug trap box” in the kitchen. Finally, the
DHHR alleged that prior referrals were received regarding petitioner’s care of M.B. and the
family previously received services, such as “[a]dult life skills . . . in August and September of
2016, and from January, 2017 through July of 2017. Safety services were put in the home from
September . . . 2016 through March . . . 2017. Supervision was put in the home from May . . .
2017 until March . . . 2018.”

       Later in August of 2018, the circuit court held a preliminary hearing and the DHHR
presented testimony and photographs consistent with the allegations in the petition. Further, the
DHHR worker testified that he sought medical treatment for M.B.’s infected toe prior to
removing the child from petitioner’s home, but that petitioner did not fill the prescription
provided as a result of that treatment and the medication was never utilized. Petitioner presented
no evidence. The circuit court ultimately found that M.B. was in imminent danger and ratified
his removal from petitioner’s home.

        In September of 2018, petitioner stipulated to the allegations that she failed to provide
appropriate housing, the home was infested with bugs, the child exhibited poor hygiene and was
not “potty trained,” and the home and yard were unsafe for the child. The circuit court accepted
this stipulation and adjudicated petitioner as an abusing parent. Petitioner filed a motion for a
post-adjudicatory improvement period, and the circuit court scheduled an evidentiary hearing on
the motion for a post-adjudicatory improvement period in January of 2019. In the interim,
petitioner was ordered to participate in a forensic psychological and parental fitness examination
and completed that examination in October of 2018.

         At the hearing on the motion for a post-adjudicatory improvement period, petitioner
testified that the home had “odds and ends” that needed to be repaired and that the home needed
“straightened up.” Petitioner asserted that she had addressed those items, but agreed to relocate if
the home was “deemed irreparable.” On cross-examination, petitioner denied that M.B.’s toe was
black and suggested that his toenail was the issue. Petitioner also testified she only needed to
clean M.B.’s room and the hallway before he returned.

         A DHHR worker testified that he last visited petitioner’s home in November of 2018 and
that many of the unsafe and unsanitary conditions still existed in the home, such as “relatively
high” stacks of scrap metal, pests in the kitchen, and a partially blocked upstairs hallway.
Additionally, M.B.’s foster parent confirmed that the child was not accustomed to using the
toilet, but that he was trained to do so within a week of arriving at their home. A Wheeling city
building inspector testified, at the evidentiary hearing, that petitioner’s home had no furnace and
was heated by space heaters only. The inspector explained that the home could be condemned
based on this lack of a permanent heating supply. Further, the inspector noted “numerous
electrical hazards,” fire hazards, and a failing roof. A service provider testified that she worked
with petitioner for four months during the pendency of this proceeding and noticed little
improvement. Additionally, the service provider observed bed bugs on her shoes following a



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visit to petitioner’s home and stopped entering the home for fear of spreading the bugs to other
clients.

        Finally, petitioner’s forensic psychological and parental fitness examiner testified that
petitioner lacked insight into the conditions of the neglect. The examiner opined that, based on
the lack of change after services, there was a small likelihood of success with additional services.
Petitioner’s psychological examination was admitted. During the examination, petitioner
indicated that she “took [M.B.] to all his appointments, he got all his shots. One time, I forgot to
take him to the hospital for his toe that I didn’t know nothing about and [now] I got to do all this
crap.” Petitioner did not mention her failure to obtain and utilize the prescribed medication for
M.B.’s toe infection. Further, petitioner asserted that “[t]hey said my house was horrible and it
wasn’t.” The examiner ultimately concluded in the report that petitioner did not have the parental
capacity to care, protect, and change in order to provide for her child. Based on the evidence
presented, the circuit court found that petitioner lacked insight into the conditions of abuse and
neglect as evidenced by her indication that only a few items needed to be remedied in the home.
Accordingly, the circuit court denied petitioner’s motion for a post-adjudicatory improvement
period.

        The circuit court held a final dispositional hearing in February of 2019, where petitioner
moved for a post-dispositional improvement period and proffered that certain improvements
were made to the home since the prior hearing. The DHHR objected to petitioner’s motion and
presented recent photographs of her home in opposition to her proffer. The circuit court found
that the photographs of the home were taken in February of 2019 and “show little improvement
in the home.” The circuit court characterized the home as “deplorable and unsafe.” Additionally,
the circuit court noted that it previously found that petitioner did not “appreciate the extent of the
changes that need[ed] to be made” and found “that remain[ed] true” at the dispositional hearing.
The circuit court concluded 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 in the best interest
of M.B. to terminate petitioner’s custodial rights. Accordingly, the circuit court terminated
petitioner’s custodial rights by its March 19, 2019, order. Petitioner now appeals that order.2

       The Court has previously held:

              “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

       M.B.’s biological parents’ parental rights were terminated during the proceedings. The
       2

maternal grandfather’s custodial rights were also terminated. According to the parties, the
permanency plan for the child is adoption in his current foster placement.




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       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 review, this Court finds
no error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred in denying her motion for a post-
adjudicatory improvement period.3 Petitioner asserts that she presented clear and convincing
evidence that she was likely to fully participate in an improvement period based on her
participation in services. Petitioner objects to the circuit court’s findings that she lacked insight
into the conditions of neglect and stresses that she made admissions to allegations in the petition
as proof that she acknowledged the neglect. Finally, petitioner argues that the circuit court
applied an incorrect standard when ruling on the motion by considering whether petitioner was
likely to improve during an improvement period. Petitioner emphasizes the correct standard is if
“the [parent] demonstrates, by clear and convincing evidence, that the [parent] is likely to fully
participate in the improvement period.” W. Va. Code § 49-4-610(2)(B). Upon review, we find
that petitioner is entitled to no relief.

        Petitioner’s argument that the circuit court applied the wrong standard misrepresents both
the record and this Court’s prior holdings. As this Court has long held,

       [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.
       3
          In support, petitioner asserts that she is a psychological parent of M.B. However,
petitioner never asserted this argument below, and the circuit court did not hear evidence as to
whether she was a psychological parent. “‘Our general rule is that nonjurisdictional questions . . .
raised for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc.,
206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999).” Noble v. W. Va. Dep’t of Motor
Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009). As such, any argument on appeal
predicated on petitioner’s assertion of psychological parent status will not be considered.
However, it is important to note that even if the circuit court had found petitioner was the child’s
psychological parent, it would have had no effect on the decision to deny petitioner a post-
adjudicatory improvement period. Regardless of her designation as either a custodial or
psychological parent, the record shows, as more fully set forth herein, that petitioner failed to
satisfy the necessary burden to obtain a post-adjudicatory improvement period. Accordingly, she
is entitled to no relief.



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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)). Further, the circuit court has discretion to deny an
improvement period when no improvement is likely. In re Tonjia M., 212 W. Va. 443, 448, 573
S.E.2d 354, 359 (2002). Here, the circuit court correctly considered evidence that petitioner
lacked insight into the conditions of neglect. Testimony showed that petitioner failed to
acknowledge the hazards that her home presented to the child or her issues in parenting the child,
such as failing to remedy his inability to use the toilet. Further, although petitioner stresses that
she explicitly admitted to the conditions through her stipulation to certain allegations in the
petition, she continued to deny or minimize the conditions throughout the proceedings. Indeed,
during her psychological examination, petitioner asserted that the home was not as deplorable as
shown in the photographs the DHHR introduced into evidence. Petitioner believed that the home
only needed to have a few “odds and ends” repaired and needed to be “straightened up.” Yet, the
circuit court found that the home “remain[ed] unsafe” at the time of the dispositional hearing. It
is clear that the conditions of the home and care for the child required an undertaking that
petitioner would not acknowledge. Therefore, the circuit court did not err in denying petitioner’s
motion for a post-adjudicatory improvement period.

        Next, petitioner argues that the circuit court erred in terminating her custodial rights as
there was a reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected in the near future. Petitioner asserts that she should have been granted an improvement
period to correct the conditions. West Virginia Code § 49-4-604(b)(6) provides that circuit courts
may terminate custodial 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 welfare of the children. West Virginia Code § 49-4-604(c)(3)
provides a list of situations in which there is “no reasonable likelihood that [the] conditions of
neglect or abuse can be substantially corrected.” Petitioner asserts that none of the situations
addressed in West Virginia Code § 49-4-604(c)(3) exist herein, but also acknowledges that the
specific situations listed in West Virginia Code § 49-4-604(c)(3) is “not exclusive.” Id.
Generally, a circuit court may find that there is no reasonable likelihood that the conditions of
abuse and neglect can be substantially corrected when “the abusing adult . . . [has] demonstrated
an inadequate capacity to solve the problems of abuse or neglect on their own or with help.”
Even though petitioner asserted some improvement in the condition of the home after being
provided services, the circuit court found, overall, the home showed “little improvement.”
Clearly, petitioner could not fully remedy the conditions because she would not acknowledge
their severity. Moreover, petitioner’s history with DHHR involvement displayed a pattern of
mild progress that would eventually revert, and require further services. Upon these
considerations, the circuit did not err in finding that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected in the near future. Likewise, as
the conditions had not been corrected, the child would have been subjected to the dangerous
conditions of the home if returned to petitioner’s care. Therefore, it was necessary for the child’s
welfare to terminate petitioner’s custodial rights.

      Finally, to the extent petitioner argues a less-restrictive alternative should have been
imposed, such as permanent guardianship, we have previously held as follows:



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                “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 requisite findings are fully
supported by the record below. Further, termination of custodial rights is necessary for the child
to be adopted, which is “the preferred permanent out-of-home placement of [a] child.” Syl. Pt. 2,
in part, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Therefore, we find no error
in the circuit court’s termination of petitioner’s custodial rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
March 19, 2019, order is hereby affirmed.

                                                                                         Affirmed.

ISSUED: November 8, 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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