                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


                                                                                FILED
In re: A.G. and E.W.
                                                                           November 14, 2016
No. 16-0547 (Wood County 15-JA-187 & 15-JA-188)                                RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


                                MEMORANDUM DECISION

        Petitioner Mother B.W., by counsel George M. Torres, appeals the Circuit Court of Wood
County’s May 9, 2016, order terminating her parental rights to fifteen-year-old A.G. and twelve­
year-old E.W.1 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 (“guardian”), Courtney L. Ahlborn, filed a response on behalf of the children also 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 parental
rights to the children.

        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 2015, the DHHR filed an abuse and neglect petition against petitioner
alleging that she physically abused her children and abused illegal drugs. The petition contained
additional allegations that petitioner allowed E.W.’s father to have contact with the children in
violation of a circuit court order, that petitioner and the father engaged in domestic violence in
the children’s presence, and that petitioner stated that she wanted to kill the children.2 The
children were removed from petitioner’s home and placed with their maternal grandmother.
Thereafter, the circuit court held a preliminary hearing wherein it determined that the children
should remain with their maternal grandmother. The circuit court also ordered that petitioner
have supervised visitation with the children.


       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).
       2
         According to the record, E.W.’s biological father’s parental rights were terminated in a
previous abuse and neglect proceeding. As a result of the termination, the circuit court issued an
order restraining the biological from having any further contact with the children.
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        In January of 2016, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the allegations as contained in the petition. Based upon petitioner’s stipulations, the
circuit court found that petitioner abused the children. Subsequently, petitioner moved for a post­
adjudicatory improvement period.

         In April of 2016, the circuit court held a dispositional hearing during which it heard
testimony regarding petitioner’s motion for a post-adjudicatory improvement period. Petitioner’s
therapist testified that petitioner was attending individual therapy and an outpatient intensive
group therapy program. The therapist further testified that petitioner followed recommendations
made by the therapy team and that petitioner was “willing to make a change in her life” but
needed continued extensive therapy. Petitioner testified and described her physical abuse of the
children as “behaving inappropriately” and stated that she could not remember what she had
done. Petitioner also testified that she “possibly did” state that she wanted to kill her children but
could not recall her exact statement. Petitioner also denied that she had regular contact with the
father, but admitted that she did have some contact with him and allowed him to have
unsupervised contact with the children in violation of a previous court order. A DHHR worker
testified that petitioner had an extensive history with the DHHR and that it had provided her with
all the services it had to offer, noting that some services were offered to her twice. The worker
also testified that petitioner continued to have contact with the father after the filing of the most
recent petition.

        The children also testified in accordance with Rule 8(b) of the Rules of Procedure for
Child Abuse and Neglect Proceedings.3 According to the children’s testimony, petitioner allowed
the father to have continuous contact with the children and asked the children to lie about the
contact. The children also testified that petitioner and the father physically abused them and
engaged in extensive domestic violence in their presence. The children further testified that
petitioner abused drugs in their presence. Based upon the evidence presented, the circuit court
noted that petitioner’s past improvements had been temporary and found that petitioner engaged
in domestic violence in the children’s presence, physically abused the children, and abused
illegal drugs. The circuit court also found that an improvement period was not likely to remedy
petitioner’s parenting deficiencies. The circuit court further found that there was no reasonable
likelihood that the conditions of abuse and neglect could be corrected in the near future and that
it was in the children’s best interest to terminate petitioner’s parental rights. The circuit court
terminated petitioner’s parental rights by order entered on May 9, 2016. Petitioner now appeals
this order.

       3
           Rule 8(b) provides that when taking testimony from children:

       [t]he court may conduct in camera interviews of a minor child, outside the
       presence of the parent(s) . . . . When attorneys are present for an in camera
       interview of a child, the court may, before the interview, require the attorneys to
       submit questions for the court to ask the child witness rather than allow the
       attorneys to question the child directly, and the court may require the attorney to
       sit in an unobtrusive manner during the in camera interview. Whether or not the
       parties’ attorneys are permitted to attend the in camera interview, they may
       submit interview questions and/or topics for consideration by the court.
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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).

        Petitioner first argues that the circuit court erred in denying her motion for a post­
adjudicatory improvement period. In support of her argument, petitioner asserts that she
established that she was likely to fully participate in an improvement period as evidenced by the
“significant changes to her lifestyle” and her return to counseling. Upon our review, however,
the Court finds that petitioner failed to satisfy the applicable burden to obtain an improvement
period. Regarding whether an improvement period should be granted, we have often noted that
the decision to grant or deny an improvement period rests in the sound discretion of the circuit
court. See In re: M.M., 236 W.Va. 108, 778 S.E.2d 338 (2015) (stating that “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) (holding that “[i]t is
within the court’s discretion to grant an improvement period within the applicable statutory
requirements”). We have also held that a parent’s “entitlement to an improvement period is
conditioned upon the ability of the [parent] to demonstrate ‘by clear and convincing evidence,
that the respondent is likely to fully participate in the improvement period . . . .’” In re: Charity
H., 215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004).

        Here, it is clear from the record that petitioner failed to demonstrate her ability to fully
participate in an improvement period. Petitioner has an extensive history of domestic violence
and substance abuse. The circuit court was presented with evidence that despite years of services,
petitioner continued to physically abuse her children and initiated contact with the man who
abused her and the children. Petitioner’s own testimony supports the circuit court’s finding that
she was unlikely to make a meaningful change with regard to her parenting issues. It is clear
from the record that petitioner failed to accept responsibility for her actions and their impact on
the children as she denied exposing the children to the father or engaging in domestic violence
with him in the children’s presence, among other abuses. “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

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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 Charity H., 215 W.Va. at 217, 599
S.E.2d at 640). As such, it is clear that petitioner failed to establish that she was likely to fully
participate in a post-adjudicatory improvement period and we find no error in the circuit court
denying petitioner’s motion.

        Petitioner’s second assignment of error is that the circuit court erred in terminating her
parental rights to the children. Under the provisions of West Virginia Code § 49-4-604(b)(6), a
circuit court must terminate parental rights when it finds 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 there is no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected when

       [t]he abusing parent or parents have 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, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child.

        In the proceedings below, the circuit court specifically found that petitioner continued to
physically abuse the children, engaged in domestic violence, and abused illegal drugs. The
circuit court also found that termination of her parental rights was necessary for the children’s
well-being. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to
terminate parental rights upon these findings. For these reasons, we find no error in the circuit
court’s order terminating petitioner’s parental rights.

       For the foregoing reasons, the circuit court’s May 9, 2016, order terminating petitioner’s
parental rights to the children is hereby affirmed.


                                                                                          Affirmed.

ISSUED: November 14, 2016


CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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