                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                   FILED
In Re: J.S.                                                                    January 12, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
No. 14-0747 (Roane County 14-JA-5)                                             OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Mother, by counsel Christen M. Justice, appeals the Circuit Court of Roane
County’s June 30, 2014, order terminating her parental rights to J.S. 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 child’s guardian ad litem, Erica Brannon
Gunn, filed a response on behalf of the child supporting the circuit court’s order. On appeal,
petitioner alleges that the circuit court erred in terminating her parental rights without
considering less drastic dispositional alternatives and in denying her motion for a post­
adjudicatory 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In January of 2014, the Roane County Family Court entered an order in a domestic
violence proceeding initiated by petitioner that placed the child in the DHHR’s custody due to
imminent danger to her wellbeing. That same month, the DHHR filed an abuse and neglect
petition alleging that petitioner knowingly inflicted physical, mental, or emotional injury upon
the child, as evidenced by petitioner subjecting the child to domestic violence between herself
and her boyfriend. The petition further alleged that petitioner failed to provide the child with
necessary food, clothing, shelter, supervision, medical care, or education. This was evidenced by
the child’s lack of dental care that resulted in loss of teeth, as well as the child’s many absences
from, and tardiness to, school. Finally the DHHR alleged that petitioner abused drugs and
expressed concerns about petitioner’s mental health due to her fascination with knives and self-
injury.

        Approximately one week later, the circuit court held a preliminary hearing and found that
the evidence established that the child was subjected to abuse and neglect. As such, the circuit
court found that the child was in imminent danger. The circuit court held an adjudicatory hearing
in April of 2014, during which petitioner stipulated to abuse. Petitioner thereafter filed a motion
for a post-adjudicatory improvement period. In May of 2014, the circuit court held a
dispositional hearing. Prior to the hearing, petitioner was arrested and incarcerated for a six-
month period on misdemeanor criminal charges. She also failed multiple drug screens and did
not complete a substance abuse assessment. As such, at the dispositional hearing, the circuit

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court denied petitioner’s motion for an improvement period and ultimately terminated her
parental rights. 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
       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 denial of petitioner’s motion for a post-adjudicatory improvement
period or in the termination of her parental rights.

        While petitioner argues that the circuit court erred in imposing the most restrictive
dispositional alternative under West Virginia Code § 49-6-5(a), the Court does not agree.
Petitioner argues that instead of terminating her rights, the circuit court could have granted her
motion for a post-adjudicatory improvement period. However, the record does not support this
argument. Pursuant to West Virginia Code § 49-6-12(b), a circuit court may grant a parent a
post-adjudicatory improvement period when “[t]he [parent] demonstrates, by clear and
convincing evidence, that the [parent] is likely to fully participate in the improvement period . . .
.” Contrary to petitioner’s argument that the circuit court could not deny her motion without a
finding that “compelling circumstances” warranted the same, this Code section clearly grants
circuit courts discretion in granting improvement periods and requires a parent to satisfy the
burden of establishing that he or she is likely to fully participate in the improvement period. The
record here is clear that petitioner did not satisfy that burden.

        The circuit court made multiple findings in regard to petitioner’s lack of compliance with
the terms imposed upon her prior to her motion for a post-adjudicatory improvement period.
Specifically, the circuit court found that petitioner missed multiple scheduled visitations with the
child, did not fully participate in parenting services, failed more than five drug screens, and
failed to appear for her psychological evaluation. The circuit court also found that petitioner
minimized the problems that led to the petition’s filing. Despite having stipulated to a substance
abuse problem at adjudication, petitioner thereafter denied having any such problem or that
substance abuse negatively impacted her parenting skills. Petitioner also tested positive for
multiple controlled substances during the pendency of the proceedings below, including
marijuana, amphetamine, and methamphetamine, and provided abnormal screens and failures to

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screen that were considered failed. Petitioner even admitted to misappropriating her child’s
lawfully prescribed controlled substances. Moreover, petitioner denied having any problem that
could be addressed by an improvement period.

       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
       and in making an improvement period an exercise in futility at the child’s
       expense.

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)). Based upon the evidence outlined above, it is
clear that petitioner failed to establish she was likely to fully participate in a post-adjudicatory
improvement period, her evidence of having put her name on a waiting list for parenting classes
while incarcerated notwithstanding.

        Further, this same evidence supports the circuit court’s findings that there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect pursuant to West Virginia Code §§ 49-6-5(b)(1) and (3), and that termination of her
parental rights was necessary for the child’s welfare. While petitioner argues that the circuit
court failed to consider any less restrictive alternatives to termination of her parental rights, the
Court disagrees. As outlined above, petitioner was not entitled to an improvement period as a
dispositional alternative because she did not satisfy her burden of proof and failed to
acknowledge the problems that necessitated the petition’s filing. Moreover, because the circuit
court correctly found that there was no reasonable likelihood that the conditions of abuse and
neglect could be substantially corrected and that termination was necessary for the child’s well­
being, the circuit court was left with no option other than termination. 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 June
30, 2014, order is hereby affirmed.

                                                                                          Affirmed.

ISSUED: January 12, 2015

CONCURRED IN BY:

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

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