                            STATE OF WEST VIRGINIA                                FILED
                          SUPREME COURT OF APPEALS                             April 12, 2016
                                                                               RORY L. PERRY II, CLERK

                                                                             SUPREME COURT OF APPEALS

                                                                                 OF WEST VIRGINIA

In re: M.G., C.G., L.G., H.G., and A.G.

No. 15-0962 (Cabell County 14-JA-0240, 14-JA-0241, 14-JA-0242, 14-JA-0243, and 14-JA­
0244)


                              MEMORANDUM DECISION

        Petitioner Mother P.G., by counsel David R. Tyson, appeals the Circuit Court of Cabell
County’s July 20, 2015, order terminating her parental rights to M.G., C.G., L.G., H.G., and
A.G. 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”), Cathy L. Greiner, filed a response on behalf of the children supporting the circuit
court’s order. On appeal, petitioner alleges that the circuit court erred in adjudicating her an
abusing parent and in terminating her dispositional 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 September of 2014, The DHHR filed an abuse and neglect petition alleging that
petitioner and the father of the subject children, failed to properly supervise the children,
engaged in domestic violence in the children’s presence, and had uncontrolled mental health
issues. Services were provided to petitioner and the father, and the circuit court dismissed the
matter by order dated September 18, 2014, and the children “were returned to the home with
services.” A service provider arrived at the home and observed the father yelling at petitioner,
which could be heard from outside the home. Petitioner further disclosed to the service provider
that the father choked her, pushed her up against the wall, and yelled at her during the
altercation. Petitioner stated that the father suffered from a gambling addiction and was
“gambling all of their money away” at a local gambling establishment. The service provider
further observed that the children in the home were anxious, screaming, and crying while
petitioner attempted to maintain order. One of the children was found outside, standing in the
front yard alone. The service provider put a protection plan in place that required the father to

       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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leave the home. In response to the protection plan, the father threatened to have all the utilities in
the home disconnected in order to force petitioner and the children out of the home. The service
provider observed that the children “continuously hit, punched, kicked, and broke things.” She
also observed that petitioner and the father were not consistent with structure or discipline for the
children and fought in front of the children. The children were truant and displayed behavioral
issues at school. The service provider reported her findings to the DHHR and filed reports with
the circuit court.

        In October of 2014, the circuit court held a hearing to address the service provider’s
reports. The service provider testified regarding the reports she filed with the circuit court.
Petitioner also testified at the hearing. Based on the court summary, witness testimony, and
recommendations of counsel, the circuit court found that there was “severe emotional domestic
violence occurring in the home.” At the close of the hearing, the circuit court adjudicated
petitioner and the father as abusive and neglectful parents by order dated October 17, 2014. The
circuit court granted petitioner and the father a six-month adjudicatory improvement period. The
circuit court further ordered that the father could return to the home, the children could remain in
the home, both parents were required to submit to random drug screens, and the DHHR must file
a new petition to include the allegations addressed at the hearing. In November of 2014, the
DHHR filed an amended petition alleging that petitioner and the father engaged in domestic
violence in the children’s presence; suffered from untreated mental health issues; continually
failed to supervise the children; had past histories of drug and alcohol abuse; and the father failed
to participate in services. The petition further alleged that the children suffered developmental
delays.

        In January of 2015, the circuit court held a hearing regarding petitioner’s adjudicatory
improvement period. The circuit court noted that the guardian recently filed an emergency
motion to remove the children from the home based on the parents’ failure to submit to drug
screens, the children’s disheveled appearance in the home, and the “utter and complete chaos
[that] reigned” in the household. The DHHR also moved to terminate petitioner’s adjudicatory
improvement period. A service provider testified that petitioner and the father were not
participating in random drug screening. The parties agreed that the father would remove himself
from the home. The circuit court ordered that the children would remain in the home, over the
guardian’s objection, and terminated petitioner’s adjudicatory improvement period. The circuit
court treated the hearing as a dispositional hearing and granted petitioner a dispositional
improvement period. On January 29, 2015, the circuit court held a hearing on the guardian’s
emergency motion to remove the children from the home. The guardian recommended removing
the children because the parents were not capable of providing a safe environment for their
children. At the close of the hearing, the circuit court found that petitioner did not comply with
its previous orders and failed a drug screen. The circuit court authorized the children’s separation
for foster placement, “given their propensity towards harming each other.” The circuit court
granted petitioner another improvement period.

        In May of 2015, the circuit court held a hearing to review petitioner’s dispositional
improvement period. At the hearing, the children’s foster parents and a service provider testified
regarding the effect visitation with the biological parents had on the children. They testified that
the children’s behavior was worse after visiting their parents. The service provider testified that

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the parents showed a “complete lack of being able to handle the children.” He also testified that
he had seen a positive change in the children’s behavior since their placement in separate foster
homes. The circuit court ordered that the children remain in the legal and physical custody of the
DHHR and terminated visitation between the children and the parents. Sometime after the review
hearing, the DHHR filed a motion to terminate petitioner’s dispositional improvement period.

        In July of 2015, the circuit court held a final dispositional hearing. At the hearing,
petitioner testified that she remedied the domestic violence issue between her and the father
because they were now divorced. The father testified that he and petitioner were divorced but he
lived next door to her and they continued to work together. After the close of the hearing, the
circuit court thoroughly restated all of the evidence presented and previous findings made in the
matter. In a seventy-four page order, dated July 20, 2015, the circuit court granted the DHHR’s
motion to terminate petitioner’s dispositional improvement period and terminated petitioner’s
parental rights.

       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 adjudicating her an abusing
parent because there was no evidence that the children had been abused or neglected.2 However,
it is clear from the record that the circuit court had sufficient evidence to find that petitioner was
an abusing parent. The circuit court based its decision on the testimony at the adjudicatory

       2
         The circuit court actually adjudicated petitioner as a “neglectful parent” based upon its
finding that she abused or neglected the children. The Court notes, however, that the West
Virginia Code provides only for a definition of “abusing parent.” According to West Virginia
Code § 49-1-201, “‘[a]busing parent’ means a parent, guardian or other custodian, regardless of
his or her age, whose conduct has been adjudicated by the court to constitute child abuse or
neglect, as alleged in the petition charging child abuse or neglect.” Because this definition
encompasses parents who have been adjudicated of either abuse or neglect, the Court will use the
correct statutory term throughout this memorandum decision.
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hearing that established that petitioner and the father engaged in domestic violence in the
children’s presence. The evidence further established that petitioner could not properly supervise
the children, did not change their diapers or feed them, and had little or no interaction with the
children. According to the testimony presented, petitioner could not control her children during
relatively short supervised visits. The visits were interrupted by service providers because visits
with petitioner were “chaotic . . . a lot of throwing things, climbing on tables, hiding behind
things, running out of our supervised visit room, throughout our office, down the hallways. A lot
of yelling and screaming.” According to the evidence presented, petitioner was unable to, even
after the provision of multiple services, physically care for, protect, or control her children. The
children ran away from home, inflicted injury on themselves and on each other, were
developmentally delayed, and needed extensive medical and dental care. It is clear from the
record that after visitations with petitioner were terminated, the children were better behaved and
more adjusted in their foster placements. Therefore, the circuit correctly adjudicated petitioner an
abusing parent.

        Next, the Court finds no error in the circuit court’s termination of petitioner’s
improvement period. On appeal, petitioner argues that the circuit court abused its discretion
when it terminated her dispositional improvement period. We have held that “[i]t is within the
court’s discretion to grant an improvement period within the applicable statutory requirements; it
is also within the court’s discretion to terminate the improvement period if the court is not
satisfied that the [parent] is making the necessary progress . . . . “ In re: Lacey P., 189 W.Va.
580, 586, 433 S.E.2d 518, 524 (1993). Unfortunately, there is little evidence that petitioner
attempted to make any progress toward improving the circumstances which precipitated the
removal of her children. It is clear from the record that petitioner did not correct the
circumstances of abuse and neglect, as evidenced by the fact that a new abuse and neglect
petition was filed within days of the previous petition’s dismissal. Moreover, petitioner was
given multiple opportunities to correct the conditions of abuse and neglect and she failed to
improve her ability to care for her children. As such, it was not error for the circuit court to
terminate petitioner’s dispositional improvement period.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 20, 2015, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: April 12, 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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