                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: C.S.                                                                        FILED
                                                                                  June 2, 2014
No. 14-0013 (Randolph County 13-JA-13)                                        RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA


                                 MEMORANDUM DECISION

        Petitioner Mother, by counsel Heather M. Weese, appeals the Circuit Court of Randolph
County’s December 10, 2013, order terminating her parental rights to the child, C.S. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee A. Niezgoda,
filed its response in support of the circuit court’s order. The guardian ad litem, David H.
Wilmoth, filed a response on behalf of the child supporting the circuit court’s order. On appeal,
petitioner alleges that the circuit court erred in finding that her “Intent To Relinquish For
Adoption The Unborn Child, [C.S.]” (“Intent to Relinquish”) was invalid, in denying her 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.

        Prior to the current abuse and neglect proceedings, petitioner’s parental rights to five
older children were involuntarily terminated in three prior abuse and neglect proceedings. In
January of 2008, petitioner’s parental rights to her three eldest children were terminated after
Respondent Father C.P. Sr. severely abused C.P. Jr., who was then approximately ten weeks
old.1 The father’s abuse resulted in skull and rib fractures, and such severe head trauma that C.P.
Jr. required a partial lobotomy and multiple blood transfusions. As a result, the child, now six
years old, remains significantly developmentally delayed. According to the circuit court, the
father was criminally indicted for malicious assault and child abuse resulting in serious bodily
injury in regard to this abuse; he later pled guilty to the lesser charge of child abuse resulting in
bodily injury and was sentenced to a term of incarceration of one to ten years. The father was
released after two and a half years of incarceration.




       1
      Petitioner appealed this termination, and the Court refused the same by order entered on
November 5, 2008, in case number 081525.


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       In September of 2009, petitioner’s parental rights to a fourth child were terminated after
the DHHR filed an abuse and neglect petition alleging aggravated circumstances.2 In December
of 2011, petitioner’s parental rights to a fifth child were terminated after the DHHR again filed
an abuse and neglect petition alleging aggravated circumstances.3

        On March 22, 2013, petitioner gave birth to her sixth child, C.S. Approximately one
month prior, petitioner married C.P. Sr., C.S.’s father and the perpetrator of the significant abuse
to their other child, C.P. Jr. Prior to C.S.’s birth, both petitioner and the father signed the Intent
to Relinquish to demonstrate their intent to allow C.S. to leave the hospital in the custody of
petitioner’s parents and later be adopted by them. However, the DHHR intervened and obtained
emergency custody shortly after the child left the hospital. Based upon the prior involuntary
terminations of parental rights, the DHHR filed an abuse and neglect petition against the parents
on March 25, 2013. The maternal grandparents were initially joined as interested parties, but
later withdrew their request for custody of the child at a July 2, 2013 hearing.

        Petitioner waived her right to a preliminary hearing, and on May 13, 2013, the circuit
court held a hearing to determine the validity of the parents’ Intent to Relinquish. Because it was
not signed at least seventy-two hours after the child’s birth, as required by West Virginia Code §
48-22-302, the circuit court found the document invalid. On June 2, 2013, the circuit court held
an evidentiary hearing to determine whether petitioner had undergone a substantial change in
circumstances since the prior termination of parental rights. Based upon substantial evidence,
including petitioner’s recent marriage to C.P. Sr., the man who inflicted serious and severe abuse
upon one of petitioner’s other children, the circuit court declined to find that petitioner made a
substantial change in circumstances. Thereafter, the circuit court held a dispositional hearing, at
the conclusion of which it terminated petitioner’s parental rights to C.S. It is from the
dispositional order that petitioner appeals.

       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

       2
       Petitioner appealed this termination, and the Court refused the same by order entered on
February 11, 2010, in case number 091864.
       3
        Petitioner appealed this termination, and the Court affirmed the same in a memorandum
decision. See In re C.P., No. 12-0231 (W.Va. Supreme Court, September 7, 2012)
(memorandum decision).
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       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 finding that the Intent to Relinquish was invalid or in terminating
petitioner’s parental rights without a dispositional improvement period.

        According to West Virginia Code § 48-22-302, “[n]o consent or relinquishment may be
executed before the expiration of seventy-two hours after the birth of the child to be adopted.” It
is uncontroverted that petitioner and the father executed their Intent to Relinquish prior to the
child’s birth and failed to execute a proper document following the expiration of the statutorily
mandated seventy-two hour period following the child’s birth. While petitioner argues that the
Intent to Relinquish should have been considered valid because of her express intention to later
comply with the necessary post-birth documents, the record is clear that no such documents were
ever executed. This is in spite of the fact that petitioner had custody of the child beyond the
seventy-two hour period required to execute a valid document consenting to the child’s adoption.
As such, the circuit court was correct in finding that the invalid document did nothing to protect
C.S. because “the [parents] could at any time later reassert parental rights to the child.”
Accordingly, the circuit court found that the lack of a valid Intent to Relinquish made “[c]ourt
intervention . . . absolutely necessary.” Because petitioner failed to comply with the requirements
of West Virginia Code § 48-22-302, the circuit court was correct in finding the Intent to
Relinquish invalid.

         Further, the circuit court did not err in denying petitioner’s request for a dispositional
improvement period. It is true that petitioner made efforts at remedying some of the negative
conditions in her home, and the circuit court even acknowledged the same after hearing
petitioner’s testimony regarding “efforts to further her education, maintain steady employment
and seek medical and psychological treatment.” However, the circuit court also noted that these
were not the issues underlying the prior abuse and neglect proceedings in which petitioner was
involved. Instead, as the circuit court stated, “[t]he predominate issue in past cases was
[petitioner’s] choice to bring violent men into her life.” The record is clear that petitioner has
failed to remedy this condition, as she reconciled with C.P. Sr. upon his release from
incarceration for abusing C.P. Jr. In fact, petitioner has had two children with C.P. Sr. since the
initial abuse and neglect proceeding, and petitioner married him approximately one month prior
to C.S.’s birth.

        Pursuant to West Virginia Code § 49-6-12(c)(2), a circuit court has discretion to grant a
dispositional improvement period if the parent “demonstrates, by clear and convincing evidence,
that [he or she] is likely to fully participate in the improvement period . . . .” The record here is
clear that petitioner could not satisfy this burden. Despite her involvement in at least three abuse
and neglect proceedings based upon her continued association with inappropriate individuals,
petitioner chose to marry the man who severely injured their infant son. As such, it is clear that
petitioner could not demonstrate that she would fully participate in an improvement period, as
evidenced by her continued association with the perpetrator of past abuse.



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        Further, this evidence supports the circuit court’s termination of petitioner’s parental
rights. Pursuant to West Virginia Code § 49-6-5(b)(3), a situation in which there is no reasonable
likelihood that the conditions of abuse and neglect can be substantially corrected in the near
future includes one in which “[t]he abusing parent . . . [has] not responded to or followed through
with a reasonable family case plan or other rehabilitative efforts of social, medical, mental health
or other rehabilitative agencies designed to reduce or prevent the abuse or neglect of the child . . .
.” As noted above, petitioner’s continued association with and marriage to C.P. Sr. resulted in a
significant danger to the child. While petitioner testified that she would do anything necessary to
protect the child from the father, including obtaining a divorce, the fact that she continues to
associate with him after at least three prior abuse and neglect proceedings concerning these very
same circumstances illustrates that she was unwilling to comply with rehabilitative efforts
designed to protect the child. The evidence supports the circuit court’s findings that there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse or neglect
in the near future and that termination was necessary for the child’s welfare. Pursuant to West
Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon these
findings.

     For the foregoing reasons, we find no error in the decision of the circuit court and its
December 10, 2013, order is hereby affirmed.


                                                                                           Affirmed.


ISSUED: June 2, 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




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