                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: H.C.
                                                                                     FILED
                                                                                November 23, 2015
                                                                                RORY L. PERRY II, CLERK
No. 15-0672 (Mercer County 14-JAT-493)                                        SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA



                              MEMORANDUM DECISION
       Petitioner Mother A.W., by counsel John G. Byrd, appeals the Circuit Court of Mercer
County’s April 21, 2015, order terminating her parental, custodial, and guardianship rights to
ten-year-old H.C. The West Virginia Department of Health and Human Resources (“DHHR”),
by counsel William P. Jones, filed its response in support of the circuit court’s order. The
guardian ad litem (“guardian”), Raeann Osborne, filed a response on behalf of the child also in
support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in
terminating her parental, custodial, and guardianship rights instead of granting her an
improvement period.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 December of 2014, the DHHR filed an abuse and neglect petition against petitioner
alleging that the child was truant from school. Later that month, the DHHR filed an amended
petition alleging that, in addition to the child’s truancy, petitioner suffered from substance abuse
and that she took the child “panhandling.”

        In January of 2015, the circuit court held a preliminary hearing. Prior to the start of that
hearing, the circuit court held an in-camera interview with the child. According to the circuit
court, the child stated that when she resided with petitioner she often missed school and
breakfast; lived in a house with no food; witnessed petitioner “shoot up” drugs in her feet, arms,
and fingers; witnessed petitioner’s head droop forward or backward after she shot up; that
petitioner took the child “panhandling” and referred to the child as her “money maker”; that
petitioner took the child on drug deals, which sometimes involved people with guns; that, at one
time, a man pulled a gun on them and claimed petitioner “ripped them off”; and that petitioner’s

       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.
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boyfriend hurt her. During the hearing, the circuit court noted that petitioner’s “eyes are rolling
back in her head and she’s dozing off in court.” The DHHR presented its case in support of the
allegations in the petition, and petitioner testified on her own behalf. At the conclusion of the
hearing, the circuit court found probable cause for the child’s removal and set the matter for
adjudication.

        In February of 2015, the circuit court held an adjudicatory hearing. The circuit court
incorporated the testimony of the DHHR’s witnesses from the prior hearing. Petitioner testified
and explained her history with drug addiction and attempts to achieve sobriety. She admitted that
she had used drugs intravenously and had prior Child Protective Services (“CPS”) involvement,
including several prior abuse and neglect petitions against her, all of which were ultimately
dismissed. The DHHR called a CPS worker in rebuttal. He testified that petitioner refused to
enter into a substance abuse detoxification program, and a substance abuse rehabilitation
program denied her acceptance because she arrived at the program with her prescription bottle of
Neurontin empty when it should have had pills remaining. At the conclusion of the hearing, the
circuit court adjudicated petitioner as an abusing parent. The circuit court held its ruling on any
improvement period for petitioner in abeyance and set the matter for disposition.

        In March of 2015, the circuit court held a dispositional hearing. The DHHR presented
evidence that petitioner had a prolonged history with CPS, which included several prior abuse
and neglect petitions filed against her for substance abuse, lack of appropriate supervision, or
other concerns, and that she failed to fully follow through with rehabilitative efforts. Further, the
CPS worker testified that petitioner was arrested in mid-March of 2015 for disorderly conduct
and attempt to commit a misdemeanor, after police were called to a store parking lot where
petitioner was begging for money and had allegedly attempted to open the door of a car parked
there. Petitioner was said to be “very belligerent and yelling” when approached by police. In her
testimony, petitioner admitted to the arrest in March of 2015. At the conclusion of the hearing,
the circuit court found that there was no reasonable likelihood that the conditions of abuse or
neglect could be substantially corrected in the near future and the child’s welfare required
termination. By order entered on April 21, 2015, the circuit court terminated petitioner’s
“parental, custodial, and guardianship rights” to the child. This appeal followed.

       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



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       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). Further, our case law is clear that
“in the context of abuse and neglect proceedings, the circuit court is the entity charged with
weighing the credibility of witnesses and rendering findings of fact.” In re Emily, 208 W.Va.
325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478,
525 S.E.2d 669 (1999)); see also Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d
531, 538 (1997) (stating that “[a] reviewing court cannot assess witness credibility through a
record. The trier of fact is uniquely situated to make such determinations and this Court is not in
a position to, and will not, second guess such determinations.”).

        On appeal, petitioner assigns error to the circuit court’s termination of her parental,
custodial, or guardianship rights instead of granting her either a post-adjudicatory or
dispositional improvement period. We have explained that West Virginia Code §§ 49-6-12(b),
49-6-12(c), and 49-6-5(c) provide circuit courts with discretion in determining whether to grant
or deny improvement periods to respondent parents in these proceedings.2 See Gebr. Eickhoff
Maschinenfabrik Und Eisengieberei mbH v. Starcher, 174 W.Va. 618, 626 n. 12, 328 S.E.2d
492, 500 n. 12 (1985) (“An elementary principle of statutory construction is that the word ‘may’
is inherently permissive in nature and connotes discretion.” (citations omitted)); see also In re
Tonjia M, 212 W.Va. 443, 448, 573 S.E.2d 354, 359 (2002) (stating that “[w]e have held that the
granting of an improvement period is within the circuit court’s discretion.”). Pursuant to those
statutes, a circuit court may grant an improvement period to a respondent parent who
demonstrates by clear and convincing evidence that she is likely to fully participate in the same.

        In the instant case, we find no error in the circuit court’s denial of her motion for an
improvement period. It is clear from the record on appeal that petitioner has an extensive history
with substance abuse and CPS. In the most recent action against her, she had relapsed into
substance abuse and did significant harm to this child due to that relapse. This occurred even
after she had three prior abuse and neglect proceedings dismissed, which included at least two
separate allegations of substance abuse and the successful completion of at least one
improvement period. Notably, petitioner was arrested for disorderly conduct in an incident
occurring mere days before the dispositional hearing. Based on the record before this Court,
petitioner failed to satisfy her burden to demonstrate by clear and convincing evidence that she
was likely to fully participate in an improvement period. As such, we find no abuse of discretion
in the circuit court’s denial of an improvement period herein.

        Further, we have often explained that “[t]ermination . . . may be employed without the
use of intervening less restrictive alternatives when it is found that there is no reasonable
likelihood . . . that conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 7, in
part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996). Here, the circuit court found that there
was no reasonable likelihood that the conditions of neglect or abuse could be substantially

       2
        While petitioner cites the new enactment of West Virginia Code in support of her
claims, we note that the new enactment was not in effect at the time of all relevant proceedings
below.
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corrected in the near future and that the child’s welfare required termination. Pursuant to West
Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon such
findings. Therefore, we find no merit to petitioner’s assignment of error on appeal.

       For the foregoing reasons, we find no error in the circuit court’s April 21, 2015, order,
and we hereby affirm the same.


                                                                                      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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