                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS

                                                                                     FILED
In Re: S.C. and C.C.                                                                March 31, 2014
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
No. 13-1132 (Putnam County 11-JA-25 and 11-JA-26)                                 OF WEST VIRGINIA




                               MEMORANDUM DECISION
         Petitioner Mother filed this appeal by her counsel, Shawn D. Bayliss. Her appeal arises
from the Circuit Court of Putnam County, which terminated her parental rights to fourteen-year­
old S.C. and twelve-year-old C.C., by order entered on October 7, 2013. The guardian ad litem
for the children, Jeffrey C. Woods, filed a response in support of the circuit court’s order. The
Department of Health and Human Resources (“DHHR”), by its attorney, Michael L. Jackson,
also filed a response in support of the circuit court’s order. Petitioner argues that the circuit court
erred in denying her motion for a dispositional improvement period and in terminating her
parental 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.

        The DHHR’s petition for abuse and neglect that initiated this case cited petitioner’s
extensive history with Child Protective Services (“CPS”), which dates back to 1996 and includes
the removal of two older children from petitioner’s care. The allegations of the instant petition
asserted that through the children’s excessive absences and truancy at school, the parents
educationally neglected the subject children, for which they later pled guilty; that the parents
engaged in domestic violence in the children’s presence; that the home was unkempt; and that
the children have disclosed instances of physical and sexual abuse against them by the parents.
At adjudication, both parents stipulated to abusing their children through exposing them to their
domestic violence and to neglecting them through their children’s excessive absences and
truancy at school. The circuit court also found that the home was unsanitary and uninhabitable.

        Dispositional hearings were scheduled and continued due to the parents’ granted request
to receive further psychological evaluations. When the final dispositional hearing was held, both
psychologists who evaluated the family testified, as well as the CPS case manager who worked
with petitioner and the family. One of the psychologists testified that the parents’ abuse and
neglect of the children was very likely a contributor to S.C.’s anxiety, eating disorder, and lack
of overall adaptive functioning. He also testified that the children’s best interests would not be
served through visitation or reunification with their parents. The other psychologist testified that
after evaluating petitioner, he had significant concerns about reunification between petitioner and

                                                  1
her children because petitioner engaged in services in the past but has failed to maintain the
improvements for the long term. The CPS worker testified that petitioner had prior services that
arose from separate abuse and neglect petitions. These services spanned for a period of months at
a time from 2005 until 2008 during completed improvement periods. The CPS worker further
testified that although the parents may have obtained the skills taught in the provided services,
they have not implemented them. Following the dispositional hearing, the circuit court found that
there was no reasonable likelihood that petitioner could substantially correct the conditions of
abuse and neglect in the near future and that termination was necessary for the children’s
welfare. Petitioner appeals this termination of her parental rights.

       This 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 raises two arguments on appeal. Petitioner first argues that the circuit court
erred in denying her motion for a dispositional improvement period. Petitioner argues that she
demonstrated that she would likely comply with the terms and conditions of an improvement
period because she improved the cleanliness of her home. West Virginia Code § 49-6-12 directs
that a parent who moves for an improvement period bears the burden of showing that he or she
would substantially comply with it. We further observe under this statute that the circuit court
has the discretion to grant or deny an improvement period. Petitioner’s extensive CPS history, as
discussed and testified to by witnesses at the dispositional hearing, support the circuit court’s
finding that “any change in circumstances is briefly fixed before [the parents] lose their
motivation to continue to properly parent their children.” The circuit court also found that one of
petitioner’s psychologists testified that she minimized the conditions of abuse and neglect and
minimized the issue of domestic violence. Based on this evidence, we find no abuse of discretion
by the circuit court in denying an improvement period.

       Petitioner also argues that the circuit court erred in terminating her parental rights to S.C.
and C.C. Petitioner asserts that the circuit court’s findings in support of termination were in error
and that the circuit court erred in selecting termination as the most drastic alternative under West
Virginia Code § 49-6-5. We find no error in the circuit court’s order of termination. “‘Although


                                                 2
parents have substantial rights that must be protected, the primary goal in cases involving abuse
and neglect, as in all family law matters, must be the health and welfare of the children.’ Syl. Pt.
3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W.Va.
44, 743 S.E.2d 352 (2013). West Virginia Code § 49-6-3(d)(3) provides that the DHHR is not
required to make reasonable efforts to preserve the family if the parent has had his or her
parental rights involuntarily terminated to other children. West Virginia Code § 49-6-5(b)(3) also
explains that there is no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected in circumstances in which a parent fails to respond to rehabilitative
efforts. Although petitioner cleaned the home by the dispositional hearing, no other long-term
improvements were made evident. The record provides petitioner’s extensive inconsistent history
of complying with services before regressing to behaviors that would necessitate additional
abuse and neglect proceedings. The testimony provided at the dispositional hearing was
sufficient to support the circuit court’s findings and conclusions that there was no reasonable
likelihood to believe that conditions of abuse and neglect could be substantially corrected in the
near future, and that termination was necessary for the children’s welfare. Pursuant to West
Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon such
findings.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: March 31, 2014

CONCURRED IN BY:

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




                                                 3
