                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In re: S.B., E.B.-1, & E.B.-2
                                                                                    FILED
                                                                               November 23, 2015
                                                                               RORY L. PERRY II, CLERK
No. 15-0408 (Kanawha County 14-JA-316, 14-JA-317, & 14-JA-318)               SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                                MEMORANDUM DECISION
        Petitioner Mother J.W., by counsel Michael M. Cary, appeals the Circuit Court of
Kanawha County’s April 1, 2015, order terminating her parental rights to eleven-year-old S.B,
seven-year-old E.B.-1, and four-year-old E.B.-2.1 The West Virginia Department of Health and
Human Resources (“DHHR”), by counsel S.L. Evans, filed its response in support of the circuit
court’s order. The guardian ad litem (“guardian”), Ariella G. Silberman, filed a response on
behalf of the children also in support of the circuit court’s order.2 Petitioner filed a reply. On
appeal, petitioner argues that the circuit court erred in terminating her parental rights to the
children without granting her an improvement period and in finding by clear and convincing
evidence that she neglected the children.3

        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 September of 2014, the DHHR filed an abuse and neglect petition alleging that S.B.
was covered in severe bruising and was reportedly malnourished. The DHHR claimed that S.B.

       1
       Because two of the children share the same initials, we have distinguished them using
numbers 1 and 2. The Circuit Court of Kanawha County’s case numbers also serve to distinguish
them.
       2
         The guardian attached to her response two “exhibits” containing excerpts of hearing
transcripts from the proceedings below. However, the guardian failed to file an accompanying
motion for leave to file a supplement appendix. Without proper leave by this Court, we decline to
consider the guardian’s “exhibits” or the related references thereto in her response. See W.Va. R.
App. P. 7(c) and (g) (regarding appendix records and supplemental appendix records).
       3
         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.
                                                1


and E.B.-2 were both non-verbal children despite their age, but E.B.-1 disclosed that petitioner
and her live-in boyfriend physically abused S.B. when he acted out by grabbing and hitting him.
According to the DHHR, E.B.-1 stated that if S.B. did not properly wake up for school, petitioner
would drag him across the carpet to the bathroom, causing the physical injury known as “carpet
burn,” and hit his head.

        In October of 2014, the circuit court held a preliminary hearing. A Child Protective
Services (“CPS”) worker testified to the allegations in the petition. She further testified that
during her investigation of the allegations she witnessed a new bruise to S.B.’s eye and a “carpet
burn” to his leg. Due to those injuries, the CPS worker and petitioner agreed to an in-home
protection plan, but on the third day of that protection plan, the CPS worker witnessed a large
bruise on S.B.’s back. Thereafter, the DHHR filed the underlying petition. Despite petitioner’s
contention that the injuries were either self-inflicted or caused at S.B.’s school, the circuit court
found probable cause for the DHHR’s filing.

        The following month, in November of 2014, the circuit court held an adjudicatory
hearing. The circuit court granted the DHHR’s motion to incorporate testimony from the
preliminary hearing. In addition, the circuit court heard testimony from a transportation aid
working with the school system that S.B.’s hygiene was so poor that he routinely smelled and
that the aid had witnessed bruises on him on multiple occasions, including bruises in the shape of
fingerprints. She further described occasions when petitioner’s boyfriend wanted S.B. to keep his
coat on at school, regardless of his temperature, and petitioner’s indifference to the aid informing
her of lesions occurring in S.B.’s mouth. The CPS worker again testified to the allegations in the
petition. Based on the evidence presented, the circuit court found that petitioner failed to protect
S.B. from physical abuse. The circuit court further found that petitioner neglected the children by
causing physical or mental harm by her refusal, failure, or inability to properly care and
supervise them.

        In March of 2015, the circuit court held a dispositional hearing. At the conclusion of that
hearing, petitioner moved for an improvement period, which the circuit court denied finding that
petitioner failed to prove that she was likely to comply with an improvement period. Based on
the evidence presented, the circuit court found that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected in the near future and that the
children’s welfare required termination. By order entered on April 1, 2015, the circuit court
terminated petitioner’s parental rights to these children. 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

                                                 2


       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). 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’s first assignment of error is that the circuit court erred in failing to
grant her an improvement period.4 This Court has held that

       “courts are not required to exhaust every speculative possibility of parental
       improvement before terminating parental rights where it appears that the welfare
       of the child will be seriously threatened. . . .” Syllabus point 1, In re R.J.M., 164
       W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 4, in part, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Further, under West
Virginia Code § 49-6-12, a circuit court is not required to grant an improvement period, but
rather, the decision whether to grant or deny one is left to the circuit court’s sound discretion. It
is the respondent parent’s burden to show that she would be likely to fully comply with an
improvement period. Moreover, the Court has held as follows:

       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.

In re Kaitlyn P., 225 W.Va. 123, 126, 690 S.E.2d 131, 134 (2010) (quoting W.Va. Dep’t. of
Health and Human Res. ex rel. Wright v. Doris S., 197 W.Va. 489, 498, 475 S.E.2d 865, 874
(1996)). In the instant matter, petitioner clearly blamed self-infliction and/or the school for S.B.’s
injuries. In her brief to this Court, petitioner acknowledges that she “never admitted to
physically, mentally, or emotionally harming her children.” While petitioner claims that the
circuit court’s denial of an improvement period at disposition was error, we find no evidence in
the record on appeal that she acknowledged a parental problem requiring improvement. Based on
the foregoing, we find no merit to this assignment of error.



       4
         Petitioner fails to indicate the type of improvement period at issue—post-adjudicatory or
dispositional.
                                                  3


        Petitioner’s second and final assignment of error is that the circuit court erred in finding
by clear and convincing evidence that she abused or neglected the children. In support, petitioner
cites instances of testimony in the record that speak to her qualities as a good parent. However,
in so doing, she ignores the evidence that weighs against her. Clear and convincing evidence
demonstrated that petitioner subjected S.B. to physical abuse by hitting him, grabbing his legs,
and otherwise causing him injury. Even assuming that we accept petitioner’s argument that the
injuries were either self-inflicted or committed at school, no evidence demonstrates what steps, if
any, she took to protect S.B. from further abuse. Therefore, assuming her position to be true, the
evidence presented supports a finding that she failed to protect S.B. from further physical abuse
whatever the source. Moreover, the transportation aid testified that S.B. suffered from hygienic
deficiencies such that he often smelled at school and developed lesions. Given the evidence
presented before the circuit court, we find no reversible error in its adjudicatory findings.

       For the foregoing reasons, we find no error in the circuit court’s April 1, 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




                                                 4


