                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: E.M.                                                                         FILED
                                                                                  September 3, 2013
                                                                               RORY L. PERRY II, CLERK
No. 13-0316 (Raleigh County 12-JA-104)                                       SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA




                                 MEMORANDUM DECISION

        Petitioner Mother, by counsel Michael P. Cooke, appeals the Circuit Court of Raleigh
County’s order entered on February 27, 2013, terminating her parental rights to E.M. The West
Virginia Department of Health and Human Resources (“DHHR”), by Charlene A. Vaughan, its
attorney, filed its response. The guardian ad litem, Jane E. Harkins, filed a response on behalf of
the child in support of the circuit court’s order. On appeal, petitioner argues that the circuit court
erred in not granting her a 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        The DHHR filed the underlying abuse and neglect petition after E.M.’s birth based on the
previous termination of petitioner’s parental rights to an older child. The previous termination
occurred because the child sustained multiple skull fractures and a broken clavicle, but it was
never determined how the injuries occurred. Petitioner testified in this case that the father of the
previously terminated child had abused petitioner and that she believed he had injured that child.
In August of 2012, a few days after E.M.’s birth, the DHHR removed E.M. from the home. At
the adjudicatory hearing, in December of 2012, the circuit court held that aggravating
circumstances existed and that E.M. had been abused and neglected, but stated it would revisit
whether to grant an improvement period at the next hearing. The circuit court found that
petitioner needed to show that there was a change in circumstances in order to be granted an
improvement period and ordered the DHHR or the child’s guardian to view petitioner’s living
arrangements in advance of the next hearing. At the dispositional hearing, based upon testimony
by the DHHR and the guardian, the circuit court found that petitioner’s living conditions were
not safe for E.M., denied petitioner’s requested post-adjudicatory improvement period, and
terminated petitioner’s parental rights by order entered February 27, 2013.

       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

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       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 not granting a post-adjudicatory
improvement period after showing that she was no longer living with the father of the child who
was the subject of the prior proceeding and testifying that she was attempting to move from the
apartment that the guardian and the DHHR found to be inappropriate.

       This Court has previously held that

       [w]hen an abuse and neglect petition is brought based solely upon a previous
       involuntary termination of parental rights to a sibling pursuant to West Virginia
       Code § 49–6–5b(a)(3) (1998), prior to the lower court's making any disposition
       regarding the petition, it must allow the development of evidence surrounding the
       prior involuntary termination(s) and what actions, if any, the parent(s) have taken
       to remedy the circumstances which led to the prior termination(s).

Syl. Pt. 4, In re George Glen B., 205 W.Va. 435, 518 S.E.2d 863 (1999). Moreover,

       “Where there has been a prior involuntary termination of parental rights to a
       sibling, the issue of whether the parent has remedied the problems which led to
       the prior involuntary termination sufficient to parent a subsequently-born child
       must, at minimum, be reviewed by a court, and such review should be initiated on
       a petition pursuant to the provisions governing the procedure in cases of child
       neglect or abuse set forth in West Virginia Code §§ 49-6-1 to -12 (1998).
       Although the requirement that such a petition be filed does not mandate
       termination in all circumstances, the legislature has reduced the minimum
       threshold of evidence necessary for termination where one of the factors outlined
       in West Virginia Code § 49-6-5b(a) (1998) is present.” Syllabus Point 2, In re
       George Glen B., Jr., 205 W.Va. 435, 518 S.E.2d 863 (1999).

Syl. Pt. 3, In re George Glen B., 207 W.Va. 346, 532 S.E.2d 64 (2000). In the present matter, the
circuit court found that petitioner had not corrected the conditions that led to the termination of
her parental rights in the past. Specifically, the circuit court found that her home “was not safe
for a child and that significant injury to the prior child . . . shows that petitioner has been unable

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or unwilling to protect her child or children.” Based upon these facts, we find that the circuit
court was not clearly erroneous in finding that petitioner failed to show that she had corrected the
conditions giving rise to the prior termination of her parental rights.

        Additionally, pursuant to West Virginia Code § 49-6-12, petitioner bears the burden of
proving by clear and convincing evidence that she would substantially comply with an
improvement period and the circuit court has the discretion to grant or deny such a motion. At
the dispositional hearing, the circuit court specifically found that petitioner “has not generally
exhibited a willingness to protect [E.M.] and has, in essence shown a general carelessness
towards the raising of children.” For the foregoing reasons, we find no error in the circuit court’s
refusal to grant an improvement period, and the termination of petitioner’s parental rights is
hereby affirmed.

                                                                                         Affirmed.


ISSUED: September 3, 2013


CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:

Justice Menis E. Ketchum




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