                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS

In Re: M.L. & B.L.                                                                   FILED
                                                                                  January 12, 2015
No. 14-0504 (Jackson County 13-JA-51, 13-JA-52)                                 RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


                                MEMORANDUM DECISION
        Petitioner Mother, by counsel Edward L. Bullman, appeals the Circuit Court of Jackson
County’s May 1, 2014, order terminating her parental rights to M.L. and B.L. The Department of
Health and Human Resources (“DHHR”), by counsel, Michael L. Jackson, filed a response in
support of the circuit court’s order. The guardians ad litem, Anita H. Ashley and Erica B. Gunn,
filed a joint summary response on behalf of the children supporting the circuit court’s order.
Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in failing to grant
her an improvement period prior to the termination of 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.

        On September 6, 2013, the DHHR filed an abuse and neglect petition against petitioner
alleging that she had a history of domestic violence that caused M.L. to become “extremely upset
and start to cry.” Petitioner was alleged to have been the victim of the domestic violence, which
included a report from 2012 that her husband burned her with a hot frying pan and a hot iron. On
September 16, 2013, the DHHR filed an amended petition alleging more detailed accounts of the
domestic violence in petitioner’s household and medical concerns for the children. For
approximately one year, the maternal grandparents had guardianship of M.L.1 However, in
August of 2013, due to alleged acts of violence and threats of violence by petitioner’s husband,
the maternal grandparents moved for and were granted relinquishment of that guardianship.
Upon relinquishment of guardianship and following B.L.’s birth, the DHHR received temporary
custody of both children, pending further proceedings. The amended petition also alleged that,
when the DHHR took B.L. from petitioner and her husband, the Child Protective Services
(“CPS”) worker and medical personnel noticed that B.L. had a severe diaper rash and a severe
yeast infection.

       Thereafter, petitioner stipulated to domestic violence causing harm to M.L. At the March
26, 2014, dispositional hearing, the CPS worker testified that petitioner only “recently”
demonstrated a willingness to participate in and comply with services to correct the conditions of
abuse and that she had a history of noncompliance with DHHR. Conversely, petitioner testified

       1
           At this time, B.L. was not yet born.

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that she was willing to comply with domestic violence treatment, but that she had withdrawn her
recent divorce petition and still resided with her husband because they had made “progress” in
their relationship. Dr. Timothy Saar testified that petitioner had the intellectual ability to comply
with rules imposed by the DHHR, but she was at times uncooperative and hostile with others.
Dr. Saar also testified that during his evaluations of petitioner, she had not admitted to any
domestic violence in her relationship with her husband, and he did not diagnose her with battered
women’s syndrome.

        The circuit court continued the dispositional hearing to secure the testimony of Dr. Bobby
Miller to present evidence of his evaluation of petitioner. On March 28, 2014, Dr. Miller testified
as to his evaluation of petitioner and also concluded that she did not suffer from battered
women’s syndrome. Dr. Miller diagnosed petitioner with sexual masochism, personality
disorder, and narcissistic personality traits. According to Dr. Miller, petitioner did not perceive a
need to change herself, and during the evaluation, she denied domestic violence with her
husband. Dr. Miller also testified that petitioner would have impediments that would be difficult
to overcome in an improvement period, which included her perception that she did not need
therapy and that she was superior to others. Thereafter, the circuit court denied her motion for a
post-adjudicatory improvement period and terminated her parental rights to both children. This
appeal followed.

       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).

        On appeal, petitioner argues that the circuit court erred in terminating her parental rights
without granting her an improvement period. West Virginia Code §§ 49-6-12(b) and -12(c) grant
circuit courts discretion in ruling on motions for improvement periods. Further, these statutory
provisions require a parent to prove by clear and convincing evidence that they are likely to fully
participate in the same. Upon our review of the record on appeal, it is clear that petitioner did not
satisfy this burden. The circuit court found that petitioner failed to make a genuine admission of
domestic violence causing harm to her child for the purposes of participation in an improvement
period. This is demonstrated by the testimony of her history of uncooperative behavior with


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DHHR and failure to acknowledge the domestic violence in her relationship with her husband
during her psychological evaluations. We have long held 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.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997);
“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)).

        Contrary to petitioner’s argument that the circuit court held her to a higher standard to
acknowledge domestic violence in denying her an improvement period, the record reflects that
petitioner failed to satisfy her burden and failed to acknowledge the conditions of abuse and
neglect for the purpose of correcting those conditions. We have explained that

       [i]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. 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)). Instead, petitioner continued her relationship with
her husband; failed to acknowledge to two therapists the domestic violence at issue; and
persistently contested the actions and conduct of the DHHR, visitation supervisors, and foster
parents by making accusations of criminal conduct and other misbehavior. Although petitioner
claims that the circuit court ignored the “great weight” of the evidence, the circuit court clearly
weighed the evidence presented, and the circuit court was within its discretion to determine that
petitioner’s assertions at disposition that she would comply with the terms of an improvement
period were not genuine. We find no error in the circuit court’s findings that the evidence was
not clear and convincing that petitioner would fully comply with the terms of an improvement
period.

        We have also 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 . . . .” Syl. Pt. 4, in part, In re Kristin Y., 227 W.Va. 558, 712
S.E.2d 55 (2011) (quoting Syl. Pt. 1, In re R.J.M., 164 W.Va. 496, 266 S.E. 114 (1980)).
Therefore, we find that the circuit court did not err in finding 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. 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.



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                                        Affirmed.

ISSUED: January 12, 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




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