                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


                                                                                     FILED
In Re: B.L., T.L., & V.L.                                                         November 26, 2013

                                                                               RORY L. PERRY II, CLERK

                                                                             SUPREME COURT OF APPEALS

No. 13-0686 (Calhoun County 11-JA-27, 30 & 31)                                   OF WEST VIRGINIA




                                 MEMORANDUM DECISION

        Petitioner Mother, by counsel Erica Brannon Gunn, appeals the Circuit Court of Calhoun
County’s order entered on June 24, 2013, terminating her parental rights to her children B.L.,
T.L., and V.L. The West Virginia Department of Health and Human Resources (“DHHR”), by
Lee Niezgoda, its attorney, filed its response in support of the circuit court’s order. The guardian
ad litem, Tony Morgan, filed a response on behalf of the children in support of the circuit court’s
order. On appeal, petitioner argues that the circuit court erred in adjudicating her an abusing
parent and refusing to grant an 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 an abuse and neglect petition in October of 2011 against the children’s
father, based upon allegations of his poorly maintained home, as well as a lack of adequate
supervision, hygiene, and stability for the children. The father’s parental rights to the children
were terminated thereafter. In August of 2012, petitioner was added to the petition for abuse and
neglect in an amended petition, which was further amended in November of 2012. The amended
petition alleged abandonment and neglect of the children due to petitioner failing to maintain
stable housing, extensive involvement with CPS dating back to 1998, that her parental rights to
these children had been terminated by the State of Georgia, that her parental rights to these
children had been terminated by the State of Ohio, and that she had admitted she was unable to
care for the children.1 In February of 2013, the circuit court adjudicated petitioner to have
neglected her children, finding that she knew the father was abusive and neglectful and failed to
protect her children from him, and that she failed to provide for her children. In May of 2013, at
the dispositional hearing, the circuit court found that petitioner did not take responsibility for her
children’s abuse and neglect and that she had recurrent episodes of poor parental judgment; it
also found that her failure to protect her children from harm demonstrates an unlikeliness to fully

1
 The record is unclear as to whether the actions in Ohio and Georgia resulted in the termination
of her parental rights, but it is undisputed that courts in Ohio and Georgia addressed abuse and
neglect issues that petitioner had in relation to the same children involved in this case.
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participate in an improvement period. The circuit court found that granting petitioner an
improvement period would endanger the health, safety, and well-being of the children, and
would not be in their best interest. Petitioner appeals from an order entered following the
dispositional hearing, terminating her parental rights.

       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).

        Petitioner argues that the circuit court erred when it adjudicated her as having neglected
the children because she had made some telephonic contact with the children, did not assent to
the children moving in with their father, and her failure to visit the children in person was due
solely to her lack of financial resources.

       A neglected child is one

       [w]hose physical or mental health is harmed or threatened by a present refusal,
       failure or inability of the child's parent, guardian or custodian to supply the child
       with necessary food, clothing, shelter, supervision, medical care or education,
       when such refusal, failure or inability is not due primarily to a lack of financial
       means on the part of the parent, guardian or custodian.

W.Va. Code § 49-1-3(10)(A)(i). A review of the record reveals that petitioner agreed to let her
children live with their father, despite her knowledge of the father having had sexual contact with
a minor and a history of domestic violence. Additionally, petitioner states that she had contact
with the children over the phone and internet, but admits she did not see them for over two years.
Finally, petitioner’s argument that her failure to visit the children was due to a lack of financial
resources is without merit, as evidenced by petitioner attending hearings in West Virginia from
Ohio throughout the underlying proceedings, despite at times living in a homeless shelter. For
two years prior to the proceedings, petitioner failed to visit, protect, or support her children in
any way, never requesting a visit or attempting to secure custody of her children. For these
reasons, this Court finds that the circuit court was presented with sufficient evidence to find that

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petitioner neglected the children within the meaning of West Virginia Code § 49-1-3(10).

        Petitioner also argues that she was wrongfully denied an improvement period. She argues
that she is willing to participate in an improvement period and that she had gained employment
and appropriate housing in order to do so. Pursuant to West Virginia Code § 49-6-12, a
respondent parent bears the burden of proving that he or she will substantially comply with an
improvement period; consequently, the circuit court has the discretion to deny an improvement
period if the circuit court finds that this burden has not been met. Further, this Court has
instructed circuit courts not to unnecessarily extend abuse and neglect proceedings when it held
that

       “...courts are not required to exhaust every speculative possibility of parental
       improvement . . . where it appears that the welfare of the child will be seriously
       threatened. . . .” Syl. Pt. 1, in part, In Re: R.J.M., 164 W. Va. 496, 266 S.E.2d
       114 (1980).

Syl. Pt. 4, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Here, petitioner has an
extensive history of involvement with protective services with these children in multiple states
due to her neglect and she failed to provide for her children for over two years, even after being
told of the most recent intervention against their father. This Court finds that the circuit court had
a sufficient basis for finding that an improvement period would not be in the best interest of the
children. The circuit court did not err when it found no reasonable likelihood that the conditions
of abuse and neglect will be substantially corrected and that reunification of the parents and
children is not in the best interest of the children. Pursuant to West Virginia Code § 49-6-5(a)(6),
circuit courts are directed to terminate parental rights upon these findings. This Court finds no
error in the termination of petitioner’s parental rights.

       For the foregoing reasons, we find no error in the decision of the circuit court and the
termination of petitioner’s parental rights is hereby affirmed.

                                                                                           Affirmed.


ISSUED: November 26, 2013


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




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