                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

                                                                                FILED
In re C.H.
                                                                           November 19, 2018
                                                                             EDYTHE NASH GAISER, CLERK
No. 18-0590 (Cabell County 17-JA-155)                                        SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                              MEMORANDUM DECISION
       Petitioner Mother M.M., by counsel Kerry A. Nessel, appeals the Circuit Court of Cabell
County’s June 14, 2018, order terminating her parental rights to C.H.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Cathy L.
Greiner, filed a response on behalf of the child in support of the circuit court’s order and a
supplemental appendix. On appeal, petitioner argues that the circuit court erred in denying her
motion for an extension of her post-adjudicatory 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.

        On June 30, 2017, the DHHR filed an abuse and neglect petition against petitioner and
the father alleging that petitioner abused illegal substances and engaged in domestic violence
with the father in the child’s presence. Petitioner waived her preliminary hearing. On August 31,
2017, the circuit court held an adjudicatory hearing during which petitioner stipulated to the
allegations of substance abuse and domestic violence. Accordingly, petitioner was adjudicated as
an abusing parent and granted a post-adjudicatory improvement period. A case plan was
developed requiring petitioner to have independent, stable housing and a reliable source of
income; complete parenting and adult life skills classes; and consistently visit with the child. In
November of 2017, petitioner participated in a psychological evaluation during which she
reported that she began using illegal substances at age thirteen or fourteen. She admittedly began
using Oxycontin at age nineteen. According to the psychological evaluation, petitioner’s
prognosis for parental improvement was poor.

       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).


                                                1
 
         In February of 2018, the circuit court held a review hearing. The circuit court found that
petitioner failed to obtain employment or stable housing and that her visits with the child were
inconsistent and did not go well. On May 10, 2018, the circuit court held a dispositional hearing
during which petitioner requested an extension of her post-adjudicatory improvement period,
which the circuit court denied. The DHHR recommended the termination of petitioner’s parental
rights. The DHHR presented evidence that petitioner was “unable to control her emotions,”
failed to adequately address her anger issues, and remained unemployed. The DHHR also
presented evidence that petitioner threatened to kill the father. A DHHR service provider
testified that the child did not wish to visit with petitioner and that petitioner missed several visits
with the child. According to the DHHR, petitioner often failed to interact with the child and did
not demonstrate proper parenting skills. After taking evidence, the circuit court found that
petitioner missed visits with the child and that the visits in which she participated were not
productive. The circuit court also found that petitioner and the father were hostile toward each
other and refused to co-parent the child. Further, the circuit court found no reasonable likelihood
that the conditions of abuse and neglect could be substantially corrected in the near future and
that the termination of petitioner’s parental rights was in the child’s best interests. Ultimately, the
circuit court terminated petitioner’s parental rights in its June 14, 2018, order.2 It is from this
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
       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, this Court
finds no error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred in denying her motion for an
extension of her post-adjudicatory improvement period. In support of her argument, petitioner
asserts that she complied with most of the terms and conditions of her post-adjudicatory
improvement period and family case plan. She further argues that she acknowledged and


       2
       The father’s parental rights were also terminated. According to respondents, the
permanency plan for the child is adoption by her paternal grandmother.


                                                   2
 
admitted to the neglect of the child and, therefore, the issues of neglect were treatable and
“mostly cured by and through her improvement period and the family case plan.” We do not find
petitioner’s argument compelling.

       Pursuant to West Virginia Code § 49-4-610(6),

       [a] court may extend any improvement period granted pursuant to subdivision (2)
       or (3) of this section for a period not to exceed three months when the court finds
       that the [parent] has substantially complied with the terms of the improvement
       period; that the continuation of the improvement period will not substantially
       impair the ability of the department to permanently place the child; and that the
       extension is otherwise consistent with the best interest of the child.

Here, petitioner complied with most of the terms and conditions of her post-adjudicatory
improvement period. However, the record shows that petitioner missed several visits and during
visits she did attend, she was unable to implement appropriate parenting skills. “We have
previously pointed out that the level of interest demonstrated by a parent in visiting his or her
children while they are out of the parent’s custody is a significant factor in determining the
parent’s potential to improve sufficiently and achieve minimum standards to parent the child.” In
re Katie S., 198 W.Va. 79, 90 n.14, 479 S.E.2d 589, 600, n.14 (1996) (citing Tiffany Marie S.,
196 W.Va. at 228 and 237, 470 S.E.2d at 182 and 191 (1996)); State ex rel. Amy M. v. Kaufman,
196 W.Va. 251, 259, 470 S.E.2d 205, 213 (1996)). We have also held that “[i]n making the final
disposition in a child abuse and neglect proceeding, the level of a parent’s compliance with the
terms and conditions of an improvement period is just one factor to be considered. The
controlling standard that governs any dispositional decision remains the best interests of the
child.” Syl. Pt. 4, In re B.H., 233 W.Va. 57, 754 S.E.2d 743 (2014). While petitioner participated
in some of the terms of her post-adjudicatory improvement period, she admittedly failed to
obtain employment during the proceedings. Additionally, despite classes and services, she was
unable to control her emotions at times and failed to adequately address her anger issues. Due to
her failure to make any meaningful improvements during the proceedings, the circuit court did
not err in denying petitioner’s motion for an extension of her post-adjudicatory improvement
period.
        Further, we find no error in the circuit court’s termination of petitioner’s parental rights.
Petitioner argues that the circuit court denied her the opportunity to “continue to correct her
shortcomings as a parent.” We disagree. West Virginia Code § 49-4-604(b)(6) provides that
circuit courts are to terminate parental rights upon findings that there is “no reasonable likelihood
that the conditions of neglect or abuse can be substantially corrected in the near future” and that
termination is necessary for the children’s welfare. West Virginia Code § 49-4-604(c)(3)
provides that a situation in which there is no reasonable likelihood the conditions of abuse and
neglect can be substantially corrected includes one in which the abusing parent “ha[s] 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[.]”

        The evidence discussed above also supports the termination of petitioner’s parental
rights. Petitioner complied with some services, but did not benefit from them. She also failed to

                                                 3
 
secure employment during the proceedings as required by her family case plan. She was unable
to properly address emotional and anger issues. Based on this evidence, it is clear that there was
no reasonable likelihood that petitioner could substantially correct the issues of abuse and
neglect. Further, because visits did not go well due to petitioner’s failure to interact with the
child and implement proper parenting skills, the termination of petitioner’s parental rights was in
the child’s best interests. The termination of petitioner’s parental rights was also necessary in
order to establish permanency for the child. Therefore, the circuit court did not err in terminating
petitioner’s parental rights.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 14, 2018, dispositional order is hereby affirmed.
                                                                                     Affirmed.




ISSUED: November 19, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment

 
 


 




                                                 4
 
