                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: A.B.                                                                        FILED
                                                                               March 24, 2017
No. 16-0973 (Taylor County 15-JA-28)                                            RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Mother R.R., by counsel Jamella L. Lockwood, appeals the Circuit Court of
Taylor County’s September 13, 2016, order terminating her parental rights to five-year-old A.B.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”), Ashley V. Williams Hunt, filed a response on behalf of the child also in support of
the circuit court’s order.2 Petitioner filed a reply. On appeal, petitioner argues that the circuit
court erred in denying her motion for an improvement period and 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.

        In May of 2015, the DHHR received a referral that the child was observed with multiple
bruises in various stages of healing on his body. Specifically, the child had a large bruise on his

       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). The Court notes that the proceedings below concerned an
additional child. However, petitioner raises no assignment of error in regard to this child on
appeal. Accordingly, our holding in this memorandum decision does not concern the circuit
court’s rulings regarding that child.
       2
         The guardian’s response to this Court, which was filed as a summary response pursuant
to Rules 10(e) and 11(h) of the Rules of Appellate Procedure, fails to include a section regarding
the status of the child. This information is of the utmost importance to this Court. We refer the
guardian to Rule 11(j) of the Rules of Appellate Procedure, which requires briefs in abuse and
neglect appeals to contain a section on the current status of the children, permanent placement
goals, and the current status of the parental rights of all of the children’s parents. We decline to
employ its use in this matter, but we caution the guardian that Rule 10(j) provides for the
imposition of sanctions where a party’s brief does not comport with the Rules.
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buttock, a bruise extending across his waist band, and bruises on both sides of his face and right
ear. When asked by Child Protective Services (“CPS”) workers where the bruises came from,
petitioner stated that “the child falls all the time and also self-injures.” Thereafter, petitioner told
daycare workers that the bruises appeared after A.B. fell from a chair. Petitioner also believed
that the bruises were a side effect of A.B.’s medications. The following month, a pediatrician
tested A.B.’s blood and determined that while his iron was low, this deficiency would not cause
“easy bruising.” A hematologist performed additional testing and concluded that, while A.B. had
a mild factor 12 deficiency, this deficiency would not result in “easy bruising.” Despite the fact
that A.B. told CPS workers that “daddy whipped me” petitioner continued to deny any physical
abuse and suggested that something was medically wrong with A.B. Based upon these
unexplained injuries, the DHHR filed a petition for abuse and neglect against petitioner alleging
that she failed to protect her child.

        Thereafter, the circuit court held two adjudicatory hearings during which multiple
witnesses testified. The child’s doctor testified that A.B.’s test results for “easy bruising” were
negative. Similarly, A.B.’s low iron levels would not contribute to “easy bruising.” Furthermore,
the doctor testified that A.B.’s bruises were not the result of a side effect of his medication.
Based upon these test results and the lack of plausible explanations, the doctor was concerned
that A.B. was being physically abused. A CPS worker testified that petitioner continued to deny
that A.B. was physically abused until it was determined that there was no medical explanation
for A.B.’s injuries at which time she admitted that she has “whipped” A.B. on his buttock.
According to the worker, A.B. stated petitioner’s partner “whipped” him. Despite all the
testimony to the contrary, petitioner maintained that A.B.’s bruises were not caused by abuse and
that A.B. self-inflicted some of the bruises on his body. The circuit court found that petitioner’s
testimony was not credible. After considering the testimony, the circuit court adjudicated
petitioner as an abusing parent by order entered on February 4, 2016.

        The circuit court held a dispositional hearing. After considering the parties arguments, the
circuit court terminated petitioner’s parental rights to A.B. by order entered on September 13,
2016.3 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

       3
        The circuit court also terminated the parental rights of A.B.’s father. According to the
DHHR, as of the filing of their response brief, the permanency plan for A.B. is adoption by his
paternal grandfather.
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       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). Upon our review, the Court finds
no error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred in denying her an improvement
period. We find no merit to petitioner’s argument. Pursuant to West Virginia Code § 49-4­
610(3), circuit courts have discretion to grant an improvement period when the parent “moves in
writing for the improvement period [and] demonstrates, by clear and convincing evidence, that
the [parent] is likely to fully participate in the improvement period . . . .” We have held 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, 115, 778 S.E.2d 338, 345 (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 that petitioner failed to demonstrate her ability to fully participate in an
improvement period. Petitioner failed to acknowledge the abuse despite A.B.’s testimony that
“daddy whipped [him.]” Petitioner further ignored the medical testimony that A.B.’s bruises
were not the result of his medication. “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 Timber M., 231 W.Va. 44, 55, 743
S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215 W.Va. 208, 217, 599 S.E.2d 631, 640
(2004)). As such, it is clear that petitioner failed to establish that she was likely to fully
participate in a post-adjudicatory improvement period.

       Finally, petitioner argues that the circuit court erred in terminating her parental rights
without imposing a less-restrictive dispositional alternative. Pursuant to West Virginia Code §
49-4-604, circuit courts are directed to terminate parental rights upon findings that there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected and
when necessary for the child’s welfare. We have held as follows:

              “[p]arental rights may be terminated where there is clear and convincing
       evidence that the infant child has suffered extensive physical abuse while in the
       custody of his or her parents, and there is no reasonable likelihood that the
       conditions of abuse can be substantially corrected because the perpetrator of the
       abuse has not been identified and the parents, even in the face of knowledge of the
       abuse, have taken no action to identify the abuser.”

                                                  3


Syl. Pt. 3 In re: Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993). The circuit court was
presented with evidence that, while in petitioner’s care, A.B. suffered extensive physical abuse.
Furthermore, petitioner maintained that A.B. self-inflicted some of his injuries and that the
bruising was the result of a medical condition despite the testimony of multiple witnesses that
testified that A.B. did not have a medical condition that would result in “easy bruising.” For
these reasons, termination of petitioner’s parental rights to the child was not error.

         For the foregoing reasons, we hereby affirm the circuit court’s September 13, 2016,
order.


                                                                                       Affirmed.

ISSUED: March 24, 2017


CONCURRED IN BY:

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




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