                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


                                                                                     FILED
In re: K.M.-1 and K.M.-3
                                                                                November 22, 2017
                                                                                  EDYTHE NASH GAISER, CLERK
No. 17-0569 (Barbour County 16-JA-31 & 16-JA-33)                                  SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA



                                 MEMORANDUM DECISION
        Petitioner Mother M.M., by counsel Aaron P. Yoho, appeals the Circuit Court of Barbour
County’s May 25, 2017, order terminating her parental rights to K.M.-1 and K.M-3.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Chaelyn W.
Casteel, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Mary S. Nelson, filed a response on behalf of the children also in support of the
circuit court’s order. 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 June of 2016, the DHHR filed an abuse and neglect petition against petitioner and her
husband, K.M.-3’s biological father, alleging that the parties cared for the children, K.M.-1,
K.M.-2, and K.M.-3, while under the influence of illegal drugs.2 The petition also alleged that
petitioner abused substances, that the parties engaged in domestic violence in the children’s
presence, and that petitioner was unwilling or unable to remove herself and the children from an
abusive relationship with the father. On June 8, 2016, the circuit court held a preliminary hearing
wherein petitioner stipulated to a history of substance abuse and to an on-going abusive
relationship with the father. In August of 2016, the circuit court held an adjudicatory hearing
wherein petitioner again stipulated to her history of substance abuse and to an abusive
relationship with the father. Based on her admission, the circuit court found that petitioner was
an abusing parent and ordered that she submit to random drug screening. Petitioner filed a

       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). Additionally, because the children share the same initials, we
will refer to them as K.M.-1 and K.M.-3 throughout this memorandum decision.
       2
           K.M.-2 is not petitioner’s biological child and, therefore, not the subject of her appeal.
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motion for a post-adjudicatory improvement period on August 8, 2016. In October of 2016, the
children were interviewed at the Child Advocacy Center and they disclosed that domestic
violence and drug abuse were frequent in the home. The children’s disclosures included specific
instances that petitioner and the father previously denied, including an incident in which the
father punched petitioner in the face.

        In January of 2017, the circuit court held a dispositional hearing and addressed
petitioner’s motion for a post-adjudicatory improvement period. On the same day, petitioner also
filed a motion for a predispositional improvement period. At the hearing, petitioner minimized
the extent of domestic violence in the home and stated that the father only “hit [her] twice, that is
it.” She also denied that domestic violence occurred in front of the children, despite the
children’s previous disclosures. She admitted that she had previously lied about her drug usage
and had used methamphetamines in August of 2016. Petitioner initially refused to answer the
court’s questions regarding how she paid for her Subutex prescription but eventually admitted
that she was paid to deliver drugs to her cousins. She further admitted that the father, with whom
she was ordered not to have contact, transported her to the dispositional hearing after initially
denying that fact to the court. The circuit court noted that petitioner was evasive when answering
its questions. The DHHR caseworker testified that the DHHR initially recommended that
petitioner receive an improvement period but withdrew that recommendation due to petitioner’s
continued dishonesty with the court. The circuit court found that “petitioner . . . absolutely
cannot be truthful with anything in that she was given every opportunity here today . . . but she
chooses to lie when the truth would serve her much better.” The circuit court also found that
petitioner’s dishonesty made it impossible for the DHHR to provide her or the children with
services. The court denied petitioner’s motions for an improvement period and found that she
failed to prove by clear and convincing evidence that she would likely fully participate in the
same. The circuit court also found that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future, noting that she “had
not been truthful about anything” and was not credible. By order entered on May 25, 2017, the
circuit court denied petitioner’s motions for an improvement period and terminated her parental
rights to the children.3

       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
       3
        Petitioner’s parental rights to the children were terminated below. According to the
guardian, the biological fathers of K.M.-1 and K.M.-3’s rights were also terminated below.
According to the guardian, the children were placed in a foster home and the permanency plan is
adoption into that home.



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       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 proceedings below.

        On appeal, petitioner first argues that the circuit court erred in denying her motions for an
improvement period. In support of her argument, petitioner asserts that she admitted to domestic
violence in her home and her abuse of controlled substances. She also asserts that she moved out
of the abusive home, gained steady employment, and filed for divorce from the children’s father,
all of which demonstrates that the improvements she would have made given the “opportunity
for an improvement period.” We disagree. In order to obtain an improvement period, West
Virginia Code § 49-4-610(2)(B) requires that the parent “demonstrate, by clear and convincing
evidence, that [the parent] is likely to fully participate in an improvement period . . . .” Further,
we have often noted 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)
(holding 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”).

        Here, petitioner failed to prove by clear and convincing evidence that she was likely to
substantially comply with the terms and conditions of an improvement period. At the
dispositional hearing, petitioner minimized the extent of domestic violence in the home and that
domestic violence occurred in front of the children, despite evidence that domestic violence did
happen in the home. Petitioner also failed to acknowledge her responsibility for the abuse for
which she was adjudicated. “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.” W. Va. Dep’t of Health and Human Res. ex rel. Wright
v. Doris S., 197 W.Va. 489, 498, 475 S.E.2d 865, 874 (1996). Further, the circuit court found
that petitioner was evasive when answering its questions, that she could not be truthful with the
court, and that her dishonesty made it impossible for the DHHR to provide her or the children
with services. This evidence clearly indicated that petitioner would not be likely to comply with
the terms and conditions of an improvement period. Therefore, the circuit court did not err in
denying petitioner an improvement period.

       Finally, petitioner argues that the circuit court erred in terminating her parental rights. In
support of this assignment of error, petitioner argues that, because she was in the process of
divorcing the father, the circuit court should have considered a less-restrictive alternative. We
disagree. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are directed to
terminate parental rights upon findings that there is “no reasonable likelihood that the conditions

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of neglect or abuse can be substantially corrected in the near future” and that termination is
necessary for the child’s welfare. West Virginia Code § 49-4-604(c)(3) provides that no
reasonable likelihood that the conditions of abuse or neglect can be substantially corrected exists
when “[t]he abusing parent . . . ha[s] not responded to or followed through with a reasonable
family case plan or other rehabilitative efforts[.]” We have also held that “[t]ermination . . . may
be employed without the use of intervening less restrictive alternatives when it is found that there
is no reasonable likelihood . . . that conditions of neglect or abuse can be substantially
corrected.” Syl. Pt. 7, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

        Here, it is clear that there was no reasonable likelihood that petitioner could have
substantially corrected the conditions of abuse or neglect in the near future. The record shows
that petitioner was dishonest throughout the proceedings and her dishonesty made it impossible
for the DHHR to provide her or the children with services. The record on appeal shows that
petitioner continued to lie to the circuit court and to the DHHR and refused to acknowledge the
extent of the abuse in the home. Moreover, the circuit court also found that termination was
necessary for the children’s welfare. As previously stated, pursuant to West Virginia Code § 49­
4-604(b)(6), circuit courts are directed to terminate parental rights upon these findings. For these
reasons, we find no error in the circuit court’s termination of petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 25, 2017, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: November 22, 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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