                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In re: T.W., Z.L.-1, and Z.L.-2                                                    FILED
                                                                                June 9, 2017
                                                                               RORY L. PERRY II, CLERK
No. 16-0944 (Jackson County 15-JA-20, 15-JA-21, & 15-JA-22)                  SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Mother E.W., by counsel Ryan M. Ruth, appeals the Circuit Court of Jackson
County’s September 12, 2016, order terminating her parental and custodial rights to T.W. and
her parental rights to Z.L.-1 and Z.L.-2.1 The West Virginia Department of Health and Human
Resources (“DHHR”), by counsel Lee Niezgoda, filed a response in support of the circuit court’s
order. The guardian ad litem (“guardian”), Erica Brannon Gunn, filed a response on behalf of the
children, also in support of the circuit court’s order, and a supplemental appendix. On appeal,
petitioner argues that the circuit court erred in denying her request for an extension of her post­
adjudicatory improvement period.

        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 February of 2015, the DHHR filed an abuse and neglect petition against petitioner
alleging that the children were truant from school.2 In June of 2015, the DHHR filed an amended
petition alleging that petitioner engaged in domestic violence in the children’s presence, abused
substances, and physically abused the children. In July of 2015, the circuit court removed the

       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). Further, because some of the children share the same initials,
we will refer to the children as Z.L.-1 and Z.L.-2 throughout this memorandum decision.
       2
         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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children from petitioner’s custody, upon a motion by the guardian, following petitioner’s
emotional abuse of T.W. in the guardian’s presence. According to the guardian and several
witnesses, petitioner interrogated T.W. about what she disclosed to the DHHR and stated that she
hoped that the children were placed in foster care where they would be “mistreated.”

        In October of 2015, following a series of contested adjudicatory hearings, the circuit
court adjudicated petitioner as an abusing parent. The attendance director for Jackson County
Schools testified that the children were excessively truant from school during the 2014-2015
school year. T.W., petitioner’s oldest child, testified that all three children witnessed petitioner’s
substance abuse and extensive domestic violence incidents between petitioner and two of her
previous boyfriends.3 However, T.W. also explicitly stated that she did not want petitioner’s
parental rights to be terminated. A DHHR worker testified that petitioner was randomly drug
screened during the pendency of the case and tested positive for marijuana, oxazepam,
temazepan, and buprenorphine. Based upon the evidence presented, the circuit court found that
petitioner exposed her children to domestic violence, substance abuse, and “failed to supply the
[children] with necessary education.” Subsequently, petitioner filed a motion requesting a post­
adjudicatory improvement period, which was granted by the circuit court without objection. The
terms of petitioner’s improvement period were set out in a family case plan and required that
petitioner participate in weekly individual and family therapy sessions; in an outpatient substance
abuse treatment program; in random drug screening; and in parenting skills classes. It also
required that petitioner undergo a parental fitness evaluation.

       In July of 2016, the guardian filed a motion to terminate petitioner’s improvement period
due to her failure to comply with random drug screening. Also in July of 2016, petitioner filed a
motion to extend her improvement period alleging that she substantially complied with the
requirements of the same.

        In July and August of 2016, the circuit court held two hearings addressing the guardian’s
motion to terminate petitioner’s improvement period and petitioner’s motion to extend the same.
Petitioner testified that she had been going to counseling and was enrolled in an intensive
outpatient drug treatment program. She admitted missing several drug screens but denied using
controlled substances. Petitioner also admitted stating that she “wanted the guardian dead” but
that her statement was meant as a “joke” and she “never threatened to kill anyone.” A DHHR
worker testified that petitioner continued to fail random drug screens but denied using
substances. Petitioner’s family therapist provider testified that petitioner missed several weekly
therapy appointments and her attendance during the pendency of services “has been sporadic.”
The therapist also testified that petitioner admitted that she continued to abuse substances. A
counselor at Westbrook Health Services testified that petitioner enrolled in the intensive
outpatient substance abuse program offered there but needed to “restart” the program due to the
number of sessions she missed. Based on the evidence presented, the circuit court found that
petitioner failed to substantially comply with her improvement period. The circuit court also

       3
        According to the record, the circuit court held an in-camera hearing on August 14, 2015,
wherein T.W. testified and was represented by the guardian.



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found that there was no reasonable likelihood petitioner could substantially correct the conditions
of abuse and neglect. The circuit court terminated her custodial rights to T.W., terminated her
parental rights to Z.L.-1, and Z.L.-2, and denied her motion to extend the post-adjudicatory
improvement period.4 It is from that September 12, 2016, dispositional order that petitioner
appeals.5

       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). Upon our review, the Court finds
no error in the circuit court’s denial of petitioner’s motion to extend her post-adjudicatory
improvement period.

        Petitioner contends that the evidence presented below demonstrated that she substantially
complied with the terms and conditions of her improvement period. West Virginia Code § 49-4­
610 provides that “[a] court may extend any improvement period . . . when the court finds that
the respondent has substantially complied with the terms of the improvement period.” However,
we have previously 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 before the twelve-month time frame has
       4
         As indicated above, the parental rights of both parents of Z.L.-1 and Z.L.-2 were
terminated below. According to the guardian, Z.L.-1, and Z.L.-2 were placed in a foster home
together and the permanency plan is adoption into that home. Additionally, the record indicates
that petitioner’s custodial rights to T.W. were terminated below. The parental rights of N.W.,
T.W.’s father, were also terminated below. Seventeen-year-old T.W. was placed at Burlington
United Methodist facility and has requested admission into an independent living program upon
her release from Burlington.
       5
         On appeal, petitioner does not raise a specific assignment of error regarding the circuit
court’s termination of parental rights.


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       expired if the court is not satisfied that the defendant is making the necessary
       progress.

Syl. Pt. 2, In re Lacy P., 189 W.Va. 580, 433 S.E.2d 518 (1993).

        Here, it is clear from the record on appeal that petitioner failed to demonstrate her ability
to substantially comply with the terms of her improvement period. In fact, petitioner was never
fully compliant with the therapeutic services requirement or with the services that addressed her
continued substance abuse. The circuit court was presented with evidence that petitioner missed
multiple random drug screens, continually tested positive for controlled substances, while
denying abusing controlled substances, failed to complete an intensive outpatient substance
abuse treatment program, and failed to attend required therapy sessions.

               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 Charity H., 215 W.Va.
at 217, 599 S.E.2d at 640). Petitioner has repeatedly failed to acknowledge the issues giving rise
to the abuse and neglect allegations against her. Furthermore, it is clear that petitioner failed to
establish that she fulfilled the terms of her post-adjudicatory improvement period and we find no
error in the circuit court denying petitioner’s motion.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 12, 2016, order is hereby affirmed.

                                                                                          Affirmed.

ISSUED: June 9, 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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