                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                  FILED
In re: C.S.-2
                                                                              October 11, 2016
                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
No. 16-0425 (Kanawha County 14-JA-411)                                             OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Mother C.V., by counsel Edward L. Bullman, appeals the Circuit Court of
Kanawha County’s March 30, 2016, order that terminated her parental rights to C.S.-2.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans,
filed its response in support of the circuit court’s order. The guardian ad litem (“guardian”),
Bryan B. Escue, filed a response on behalf of the child also in support of the circuit court’s order.
On appeal, petitioner alleges that the circuit court erred when it found that she failed to remedy
the conditions of abuse and neglect that led to the prior involuntary termination of her parental
rights to older children and in its denial of an improvement period.2

        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 October of 2014, the DHHR filed an abuse and neglect petition in the Circuit Court of
Jackson County following the birth of petitioner’s daughter, C.S.-2, that same month. The
petition alleged aggravated circumstances against the parents based upon their involvement in 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). Further, because the father and the child share the same
initials, the Court will refer to them as C.S.-1 and C.S.-2, respectively, throughout this
memorandum decision.
       2
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective on May 20, 2015. In this memorandum decision, we apply the statutes as they
existed during the pendency of the proceedings below. It is important to note, however, that the
abuse and neglect statutes underwent minor stylistic revisions and the applicable changes have
no impact on the Court’s decision herein.
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prior abuse and neglect proceeding. According to the DHHR, the Circuit Court of Jackson
County previously terminated petitioner’s parental rights to older children by order entered in
September of 2014 upon conditions of abuse that included domestic violence between petitioner
and C.S.-1 in the children’s presence.3 Specifically, the children in that case indicated that they
witnessed petitioner and C.S.-1 engage in domestic violence involving weapons, including an
incident in which C.S.-1 struck petitioner with a baseball bat that two of the children gave
petitioner to defend herself with when they intervened in the altercation. Less than one month
after the entry of the order terminating her parental rights to these older children, petitioner gave
birth to C.S.-2 and the DHHR initiated the current abuse and neglect proceedings. However, the
DHHR’s petition in the Circuit Court of Jackson County was eventually dismissed due to lack of
venue and the matter was transferred to the Circuit Court of Kanawha County where petitioner
moved and the child was born.

        In April of 2015, the Circuit Court of Kanawha County held a preliminary hearing on the
DHHR’s petition, during which it took judicial notice of the orders from petitioner’s prior abuse
and neglect proceeding. The circuit court also ordered that a certified copy of the entire case file
from the prior proceeding be provided to the parties. Thereafter, the circuit court held
adjudicatory hearings in July and August of 2015. During the hearings, the circuit court heard
testimony from the father of one of petitioner’s older children, petitioner, a psychologist that
evaluated petitioner, and C.S.-1. As the main issue of abuse in the home during the prior
proceeding surrounded domestic violence between petitioner and C.S.-1, the circuit court in this
matter heard testimony regarding the fact that the parents continued their relationship for several
months after the termination of their parental rights to older children, including the fact that
petitioner and C.S.-1 continued to live together at the time of the first adjudicatory hearing in
July of 2015. Moreover, petitioner failed to present any evidence that she had taken steps to
remedy the conditions of abuse and neglect. Ultimately, the circuit court found that petitioner
failed to remedy the circumstances that led to the prior involuntary termination of her parental
rights to her older children and adjudicated her as an abusing parent. Despite the presence of
aggravated circumstances and over the guardian’s objection, the circuit court also ordered the
DHHR to provide petitioner with several services, including transportation, therapy, parenting
and adult life skills education, domestic violence counseling, and any other services
recommended in petitioner’s psychological evaluation.

        In December of 2015, the circuit court held a dispositional hearing, during which it heard
evidence that petitioner failed to benefit from services sufficient to return the child to her care.
Moreover, petitioner failed to accept responsibility for her abuse of the children as she testified
that she and C.S.-1 never experienced issues of domestic violence in the home, despite her
testimony that she obtained a domestic violence protective order against C.S.-1 in August of
2015. Ultimately, the circuit court found that petitioner could not substantially correct the
conditions of abuse and neglect in the near future and that termination of her parental rights was
in the child’s best interests. As such, the circuit court terminated petitioner’s parental rights to
the child. It is from the dispositional order that petitioner appeals.

       3
        Petitioner appealed the termination to this Court, which affirmed the same. See In re:
T.V., B.V., D.L., C.V., & K.S., No. 14-1048, 2015 WL 2380879 (W.Va. May 18, 2015)
(memorandum decision).
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       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).

        First, the Court finds that petitioner’s assignment of error regarding the circuit court’s
denial of an improvement period was not properly preserved below. According to petitioner, the
circuit court erred in denying her an improvement period following the dispositional hearing.
Pursuant to West Virginia Code § 49-4-610(3)(A), a circuit court may grant a parent an
improvement period as disposition when “[t]he [parent] moves in writing for the improvement
period . . . .” (emphasis added). On appeal, petitioner cites to no written motion for an
improvement period, and the record on appeal is devoid of any such written motion. As such, the
Court cannot find error in this regard, especially in light of the fact that the case concerned
aggravated circumstances due to the prior involuntary termination of petitioner’s parental rights
to older children. Pursuant to West Virginia Code § 49-4-604(b)(7)(C), “the [DHHR] is not
required to make reasonable efforts to preserve the family if the court determines . . . [t]he
parental rights of the parent to another child have been terminated involuntarily[.]” Not only did
petitioner fail to properly seek an improvement period below, but the DHHR was under no
obligation to provide her services due to the aggravated circumstances of the case. As such, we
find no error.

        Finally, the Court finds no error in the circuit court’s finding that petitioner failed to
remedy the conditions of abuse and neglect that necessitated the prior termination of her parental
rights to older children. We have previously held that

               “W.Va.Code [§] 49-6-2(c) [now W.Va. Code § 49-4-601(i)], requires the
       [DHHR], in a child abuse or neglect case, to prove ‘conditions existing at the time
       of the filing of the petition . . . by clear and convincing proof.’ The statute,
       however, does not specify any particular manner or mode of testimony or
       evidence by which the [DHHR] is obligated to meet this burden.” Syllabus Point
       1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).



                                                3


Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (internal citations omitted).
Further, in addressing abuse and neglect petitions filed upon allegations of a prior involuntary
termination of parental rights to older children, we have held that

       [w]here 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 . . . . 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) [now West Virginia Code §
       49-4-605(a)] is present.

In re Kyiah P., 213 W.Va. 424, 427, 582 S.E.2d 871, 874 (2003) (quoting Syl. Pt. 2, In the
Matter of George Glen B., 205 W.Va. 435, 518 S.E.2d 863 (1999)).

        On appeal, petitioner alleges that she remedied the conditions of abuse and neglect that
necessitated the prior termination of her parental rights by separating from C.S.-1, obtaining
independent housing, and her insistence that C.S.-2 was never subjected to domestic violence,
among other arguments. However, the Court notes that petitioner’s argument on appeal ignores
several important factors, including the fact that petitioner continued her relationship with C.S.-1
for approximately nine months after her parental rights to older children were terminated due to
engaging in domestic violence with him in the children’s presence. Additionally, while petitioner
argues that her separation from C.S.-1 supports her argument that the circuit court erred in
adjudicating her as an abusing parent, she ignores the fact that at the time of the first adjudicatory
hearing in July of 2015, petitioner was still living with C.S.-1. In fact, petitioner admits that she
obtained a domestic violence protective order against C.S.-1 as late as August of 2015, although
she claims that no actual domestic violence occurred between them and that she only obtained
the order as a means to remove C.S.-1 from the home. Regardless of whether actual domestic
violence occurred in the home, the record is clear that petitioner continued her relationship with
C.S.-1 well through the adjudicatory phase of the proceedings below, despite the fact that the
relationship was the cause of the domestic violence that led to the prior involuntary termination
of her parental rights.

       Moreover, the record is clear that petitioner’s failure to acknowledge the conditions of
abuse and neglect from the prior involuntary termination of her parental rights prevented her
from remedying the same. We have previously held that

       [i]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. 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 . .
       ..



                                                  4


In re Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). At the dispositional hearing below, petitioner
specifically testified that she and C.S.-1 never participated in physical violence, only verbal
arguments, despite the voluminous evidence to the contrary. This evidences the fact that
petitioner failed to acknowledge the issues of domestic violence in the home and, thus, failed to
remedy the same. Additionally, testimony at the adjudicatory hearings indicated that petitioner
failed to take any of the corrective steps toward remedying the conditions of abuse and neglect
that were suggested during the prior abuse and neglect proceeding, including participation in
therapy and a domestic violence intervention program. Despite approximately nine months since
the conclusion of the prior abuse and neglect proceeding, petitioner offered no testimony or other
evidence to establish that she had completed any of the recommendations from that prior
proceeding. As such, it is clear that the circuit court did not err in finding that petitioner failed to
remedy the conditions of abuse and neglect that led to the prior involuntary termination of her
parental rights to older children.

       For the foregoing reasons, we find no error in the circuit court’s March 30, 2016, order,
and we hereby affirm the same.


                                                                                             Affirmed.

ISSUED: October 11, 2016


CONCURRED IN BY:

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




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