                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS
                                                                                     FILED
In re R.A. and A.P.
                                                                                November 21, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0503 (Hampshire County 16-JA-80 and 16-JA-81)                             SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 

                                                          MEMORANDUM DECISION
         Petitioner Mother K.A., by counsel David P. Skillman, appeals the Circuit Court of
Hampshire County’s March 16, 2018, order terminating her parental rights to R.A. and A.P.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Joyce
E. Stewart, filed a response on behalf of the children in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court was clearly erroneous in making specific factual
findings, in finding that there was no reasonable likelihood that the conditions of abuse and
neglect could be substantially corrected, and in 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 October of 2016, the DHHR filed a petition alleging that R.A. was “whipped to the
point of bruising” by his father. According to the DHHR, petitioner failed to protect the child and
did not report the incident to police. The father was charged with one count of child abuse
resulting in injury. The DHHR further alleged that petitioner traveled with A.P. to the Potomac
Highland Regional Jail so she could provide transportation to the father after his release on bond.
The DHHR asserted that petitioner was not acting in a protective manner towards A.P. and R.A.
by continuing to allow the children to have contact with the father. Finally, the DHHR alleged
that the father had a history of domestic violence against petitioner in the presence of the
children. The DHHR alleged that the father was convicted of domestic battery in July of 2016
after choking petitioner and that petitioner resumed the relationship with the father two months
after that conviction. Petitioner waived her right to a preliminary hearing.

                                                            
              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).




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        The circuit court held an adjudicatory hearing, and petitioner stipulated that she failed to
protect the children from their father, that she failed to seek medical treatment for the injuries the
father caused to R.A., and that the children were exposed to multiple instances of domestic
violence in the home. Accordingly, the circuit court adjudicated petitioner as an abusing parent.
Petitioner was granted a post-adjudicatory improvement period which required that she
participate in a psychological evaluation, adult life skills classes, individualized parenting, and a
domestic violence class.

         In March of 2017, R.A. participated in a psychological evaluation and was subsequently
diagnosed with autism spectrum disorder accompanied with language impairment. R.A. was
noted to have continued difficulties in communication, social interaction, and repetitive
behaviors. The evaluator recommended that R.A.’s diagnosis be considered in determining if
reunification was appropriate and that petitioner receive specialized education in caring for a
child with autism spectrum disorder. Additionally, the foster mother expressed concerns that
R.A. became overwhelmed during visitation with petitioner and his maternal grandmother
because the grandmother also brought her children. Accordingly, the circuit court suspended
visitation between the children and grandmother.

        Petitioner participated in a parental fitness evaluation in April of 2017. During the
evaluation, petitioner admitted to multiple instances of domestic violence and abuse by the
father. Petitioner further admitted that she was abused by her mother. The psychologist
recommended continued participation in domestic violence counseling and adult life skills
classes, participation in autism training classes, and that petitioner pursue her GED. With
completion of these services, the psychologist offered a “favorable” prognosis for petitioner.

         In June of 2017, the circuit court held a review hearing and ultimately extended
petitioner’s post-adjudicatory improvement period by three months. However, the DHHR noted
concerns in a recent multidisciplinary team meeting (“MDT”) that the grandmother was present
at their first unsupervised visitation in petitioner’s home. Additionally, petitioner was discharged
from therapy after missing three sessions. Petitioner indicated that she found new employment
and that she “[did] not have time for counseling.” At a subsequent MDT in September of 2017,
petitioner indicated she resumed counseling. Petitioner further advised that her work schedule
allowed her to have the children during the day and that the children’s grandparents would watch
the children at night. The parties agreed that visitations were going well, but that petitioner
consistently brought chicken nuggets for the children and that she needed to diversify the type of
food brought to the visits. A final MDT was held in October of 2017, and petitioner expressed
frustrations regarding visitations and supervision. Further, petitioner asserted that the foster
family created inconsistency by not properly disciplining the children at home. The DHHR
indicated that the case would be set for disposition.

        After two prior evidentiary hearings, the circuit court held the final dispositional hearing
in January of 2018. The circuit court found that petitioner was provided services for more than
one year and failed to demonstrate consistency in the discipline and parenting of her children.
Additionally, petitioner failed to complete domestic violence counseling. Further, petitioner
lacked appropriate insight into how her behaviors affected the relationship with her children.
Petitioner continued to engage in romantic relationships with inappropriate individuals. The

                                                  2         
 
circuit court also found that petitioner had not located services that would meet the special needs
of R.A. Petitioner planned to enroll the children in school in West Virginia while she continued
to live in Virginia because she did not know where to enroll the children in Virginia.

        Ultimately, the circuit court found that there had not been substantial compliance with the
terms of the improvement period and that there was not sufficient improvement in the context of
all the circumstances to justify the return of the children after the lengthy improvement period.
Accordingly, the circuit court found there was no reasonable likelihood that the conditions of
abuse and neglect could be substantially corrected. The circuit court memorialized its decision in
its March 16, 2018, order. Petitioner now appeals that order.2

              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 abused its discretion in finding that
there was no reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected because the DHHR presented no evidence that petitioner and the father continued in a
relationship. According to petitioner, the condition that needed to be corrected was the abusive
domestic relationship between herself and the father. Petitioner asserts that the relationship was
ended without any evidence to the contrary and, therefore, the condition was corrected.3 We
disagree with petitioner.

                                                            
              2
          The father’s parental rights were also terminated as a result of these proceedings.
According to the parties, the permanency plan for the children is adoption in their current foster
placement.
        3
          As part of her argument, petitioner’s second assignment of error takes specific issue with
the circuit court’s findings in its “order following disposition hearing” wherein the circuit court
found that petitioner had continued contact with the father after his arrest. However, it is clear
 
                                                                                         (continued . . . )
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        West Virginia Code § 49-4-604(b)(6) provides that a circuit court may 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 welfare
of the children. Additionally, West Virginia Code § 49-4-604(c)(3) provides that no reasonable
likelihood that the conditions of neglect or abuse can be substantially corrected exist when the
“abusing parent . . . [has] not responded to or followed through with a reasonable family case
plan or other rehabilitative efforts[.]”

        The conditions of abuse and neglect that needed to be corrected were more than just the
relationship between petitioner and the father. Petitioner admitted that she failed to protect the
children from physical abuse from the father. Significantly, petitioner admitted in her
psychological evaluation that the father watching the children alone was a “last resort” to which
she agreed due to a lack of appropriate caregivers. Petitioner further indicated that she previously
did not allow the father to watch the children alone because of “his history of violence,” of which
the record shows petitioner was also a victim. Additionally, petitioner admitted that she failed to
seek medical attention or advice for the injuries the father dealt to the children and that the
children were exposed to “multiple instances of domestic violence in the home.” Petitioner’s
argument, which attempts to narrowly tailor the abuse as just the relationship between petitioner
and the father, does not consider the practical implications of petitioner’s past behavior. Despite
multiple violent acts of the father, petitioner continued to associate herself and her children with
him. Petitioner’s behavior shows a failure to recognize major dangers in her life and remove the
children from that danger. To her credit, petitioner acknowledged the father’s “history of
violence,” but her failure to remove her children from that perpetual danger is much more serious
than simply ending the relationship with the father. Therefore, we find petitioner’s argument that
the conditions of abuse and neglect were substantially corrected because she ended her
relationship with the father unpersuasive.

        Rather, the circuit court correctly found that the conditions of abuse and neglect could not
be substantially corrected in the near future because petitioner did not respond to a reasonable
family case plan. The circuit court found that “petitioner lacked insight into how her behaviors
affect the relationship with her children,” which is clear from her behavior throughout the
improvement period. For example, petitioner entered a relationship with a person in August of
2017, late in her improvement period. However, the circuit court found that “[petitioner’s] new
boyfriend was inappropriate” and petitioner does not challenge that finding on appeal. Further,
petitioner did not seek out any community resources to help with R.A.’s diagnosis of autism
spectrum disorder or any specific programs that R.A. would need in her care. We have
previously 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). As noted in the record, petitioner lives in Virginia and the children were fostered in West
                                                                                                                                                                                                
that the circuit court was recounting the procedural history of that case and petitioner’s prior
stipulation to the petition. Accordingly, we decline to address this assignment of error on appeal.



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Virginia. Therefore, services to address R.A.’s autism spectrum disorder and language
impairment were necessary for the child’s development and petitioner’s failure to seek out those
services locally was against his best interests.

        Further, petitioner failed to adequately and consistently discipline the children. Although
petitioner asserts that the circuit court abused its discretion in finding that she failed to
adequately discipline the children because of the mixed evidence provided by visitation
supervisors, we find that the circuit court’s finding is not an abuse of discretion. “A reviewing
court cannot assess witness credibility through a record. The trier of fact is uniquely situated to
make such determinations and this Court is not in a position to, and will not, second guess such
determinations.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997).
We agree that the visitation supervisors provided reports of mixed success in regard to
petitioner’s discipline of the children. However, the DHHR admitted that the earliest positive
reports may not have been accurate. Petitioner asserts that one of the agencies was biased against
her and purposefully included negative feedback. Yet, that bias is not obvious from the record.
Thus, we find the circuit court’s finding regarding petitioner’s inconsistent discipline is not an
abuse of discretion.

        Petitioner further argues that her learning disabilities and the children’s special needs
made disciplining the children difficult. We note, however, that petitioner’s services were
designed to address these issues. Despite specialized services, petitioner’s inconsistent discipline
was an obvious safety issue for the children. The children were reportedly violent, often to each
other, and petitioner declined to undergo community visits with the children based on her anxiety
that R.A. would hurt another child. On appeal, petitioner illustrates the “typical chaos that took
place during [petitioner’s] visitations” that includes R.A. striking A.P. twice, one strike leaving a
“hand print mark on [A.P.’s] cheek,” A.P. being placed in “time-out” three times for bad
behavior, and R.A. being placed in “time-out” twice. Petitioner was provided over a year of
services to learn to properly discipline the children, yet she could not consistently do so. As we
have previously held

               “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, and this is particularly applicable to children under the age of three
       years who are more susceptible to illness, need consistent close interaction with
       fully committed adults, and are likely to have their emotional and physical
       development retarded by numerous placements.” 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). Again, petitioner participated in
several months of services, but failed to make significant enough improvement to exercise
custody over the children. The circuit court does not need to speculate on what benefit petitioner
may have gleaned from additional months of services. Therefore, we find the circuit court did
not abuse its discretion in finding there was no reasonable likelihood that the conditions of abuse
and neglect could be substantially corrected.




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        Petitioner next takes issue with several of the circuit court’s factual findings, including its
finding that she exposed the children to their maternal grandmother and that she brought only
chicken tenders for the children during visitations. However, these issues are minor in
comparison to petitioner’s inconsistent discipline, her lack of initiative in seeking autism
resources in the community for R.A., and her continued participation in inappropriate
relationships. Put another way, the circuit court did not terminate petitioner’s parental rights on
these two considerations alone. Even if the circuit court erred in these findings, we find
overwhelming evidence to support a finding that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected. Accordingly, we find that
petitioner is entitled to no relief.

       Finally, we have also held as follows:

               “Termination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va. Code
       [§] 49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without
       the use of intervening less restrictive alternatives when it is found that there is no
       reasonable likelihood under W. Va. Code [§] 49-6-5(b) [now West Virginia Code
       § 49-4-604(c)] . . . that conditions of neglect or abuse can be substantially
       corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). As detailed above, the circuit
court properly found that there was no reasonable likelihood the conditions of abuse and neglect
could be substantially corrected. Importantly, termination of petitioner’s parental rights was also
necessary for the welfare of the children. Petitioner demonstrated an inability to care for the
special needs of the children when she failed to find specific services for R.A.’s special needs.
Also, the circuit court found that petitioner set an “unrealistic” child care plan, which required
petitioner to sleep only three hours per day. Accordingly, we find that the circuit court did not
abuse its discretion in terminating petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
March 16, 2018, order is hereby affirmed.

                                                                                            Affirmed.

ISSUED: November 21, 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

 


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