                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                     FILED
In re R.S. and L.A.
                                                                                 October 12, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0236 (Barbour County 16-JA-21 and 16-JA-22)                               SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Mother J.M., by counsel Jamella L. Lockwood, appeals the Circuit Court of
Barbour County’s February 8, 2018, order terminating her parental rights to R.S. and L.A.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Ashley V. Williams Hunt, 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 denying her
motion to extend her dispositional improvement period and in terminating her parental rights
rather than imposing a less-restrictive dispositional alternative.

        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 April of 2016, the DHHR filed a petition alleging that petitioner exposed her children
to domestic violence and substance abuse in the home. The DHHR alleged that J.A., L.A.’s
father, abused substances and engaged in domestic violence with petitioner. Petitioner waived
her preliminary hearing.

         The circuit court held an adjudicatory hearing in August of 2016 and petitioner stipulated
to the allegations of abuse and neglect in the petition. J.A. testified that he has an anger control
problem and that he and petitioner regularly scream, threaten, and curse at each other. J.A.
further testified that he hit petitioner in 2007, however he denied that the children had seen him
hit petitioner since that time. J.A. admitted that he previously had a substance abuse problem, but
                                                            
              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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denied using controlled substances since 2014. Petitioner testified that she and J.A. had not been
fighting as frequently as in the past and that the incidents of domestic violence were not as bad as
they were made out to be. Petitioner denied that the children were afraid of J.A. Petitioner further
admitted that she was a recovering addict and had been prescribed Suboxone to treat her
addiction for the last five years. Ultimately, the circuit court accepted the stipulations and
adjudicated petitioner as an abusing parent. However, the circuit court also found that the
admissions were incomplete and that “they fail to acknowledge behavior which the [c]ourt has
found actually occurred.” Petitioner moved for a post-adjudicatory improvement period and the
circuit court held that motion in abeyance until the children completed child advocacy
interviews.

        In October of 2016, the circuit court received and reviewed the children’s interviews and
again found that petitioner’s previous stipulation was incomplete and failed to fully acknowledge
the issues in the home. Nevertheless, the circuit court granted petitioner a post-adjudicatory
improvement period. In December of 2016, petitioner moved to extend her post-adjudicatory
improvement period. The circuit court granted petitioner’s motion and noted that she was
compliant in services thus far. In May of 2017, petitioner moved for a post-dispositional
improvement period and the circuit court granted that motion. Additionally, the DHHR filed
petitioner’s psychological examination which indicated a poor prognosis for improvement. The
evaluator noted petitioner’s poor judgment and lack of insight into the effect her addiction and
the domestic violence had on the children. According to the evaluator, petitioner’s poor
judgement and lack of insight continued despite the therapy and services provided by the DHHR
in the past year. Due to petitioner’s lack of improvement while participating in services, the
evaluator opined petitioner likely would not benefit from more long-term treatment. Petitioner’s
unwillingness to end the relationship with J.A. even after she acknowledged its toxicity was the
evaluator’s largest concern.

        The circuit court held a dispositional hearing in December of 2017, and the DHHR
moved to terminate petitioner’s parental rights. At the outset of the hearing, the circuit court took
judicial notice of J.A.’s recent criminal case and that his probation was revoked. J.A. was
charged with driving under the influence of controlled substances. J.A. admitted to police that he
was regularly using drugs for the past month and used methamphetamine prior to driving. A case
worker testified that petitioner was granted custody of the children in May of 2017 as part of her
improvement period. The worker testified that the DHHR permitted petitioner to supervise
contact between the children and J.A. at first, because J.A. was participating in services. The
worker testified that J.A. stopped participating later in the improvement period and the DHHR
forbid petitioner to allow J.A. to supervise visitation with the children. According to the worker,
petitioner continued to advocate for J.A. after he stopped participating. In August of 2017, J.A.
was found alone with the children and the children were removed a second time from petitioner’s
custody. The worker further testified that petitioner sent messages to R.S. in an attempt to coerce
the child to lie about his contact with J.A. The worker testified that petitioner continued to
believe that J.A. was not a threat to her children, despite his failure to participate in services.
Petitioner testified she was unaware why J.A. was arrested and unaware that he was using
controlled substances. Petitioner testified that she no longer believed that J.A. was a safe
individual to have around her children. Finally, the psychological examination was admitted into
evidence.

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        Ultimately, the circuit court found that J.A. failed to participate in services and that her
drug usage worsened. Further, the circuit court found that petitioner attempted to hide contact
between the children and J.A. from the DHHR. The circuit court concluded that there was little
likelihood that petitioner would not continue a relationship with J.A. The circuit court did
acknowledge that petitioner obtained employment and suitable housing and completed parenting
classes. However, the circuit court also reasoned that the conditions of abuse and neglect were
essentially unchanged given the evidence that petitioner pressured R.S. to lie about contact with
J.A. Accordingly, the circuit court terminated her parental rights in its February 8, 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.

        First, petitioner argues that the circuit court erred in denying her motion to extend her
post-dispositional improvement period because she substantially complied with services.
Petitioner asserts that she completed all the terms of her improvement period and it was not until
the DHHR began transitioning full custody to her “that things went slightly amiss.” According to
petitioner, she only needed time to prove that she could protect her children from “any known
bad influences” and the circuit court erred in not affording her that additional time. We disagree.

              West Virginia Code § 49-4-610(6) provides that the circuit court

              may extend any improvement period granted . . . for a period not to exceed three
              months when the court finds that the respondent has substantially complied with
                                                            
              2
        Both father’s respective parental rights were also terminated as a result of these
proceedings. According to the parties, the children are placed together in a foster home with a
permanency plan of legal guardianship in that home.



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       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.

Further, “[i]t is within the court’s discretion to grant an improvement period within the
applicable statutory requirements.” Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d
589 (1996). Also, the circuit court has discretion to deny an improvement period when no
improvement is likely. In re Tonjia M., 212 W.Va. 443, 448, 573 S.E.2d 354, 359 (2002).

        The circuit court did not err in denying petitioner’s motion to extend her post-
dispositional improvement period because petitioner was unlikely to improve. Petitioner
displayed an attachment to J.A. that rose above the needs of her children. Despite petitioner’s
acknowledgement that her relationship with J.A. was toxic and abusive, petitioner continued to
maintain a relationship with him and continued to subject her children to that relationship.
Petitioner’s desire to maintain that relationship led her to ignore the DHHR’s directives and
caused her to pressure one of the children into lying about his contact with J.A. Petitioner argues
that she did not know that J.A. was abusing substances or refusing to drug screen, however she
was clearly informed by the DHHR not to allow J.A. to have contact with the children. Further,
petitioner argues that she complied with all the terms of her improvement period. 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). Despite all the services provided, petitioner still exercised poor judgement in allowing
J.A. to supervise the children and then pressuring her child to lie about that contact. Accordingly,
we find that the circuit court did not err in denying petitioner’s motion to extend her post-
dispositional improvement period.

        Second, petitioner argues that the circuit court erred in terminating her parental rights
rather than imposing a less-restrictive dispositional alternative. Petitioner asserts that the best
interests of the children would have been better served by termination of custodial rights only
due to her strong emotional bond to the children. We disagree. West Virginia Code § 49-4-
604(b)(6) provides that the circuit court may terminate parental rights when “there is no
reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the
near future and, when necessary for the welfare of the child.” Further, West Virginia Code § 49-
4-604(c)(3) provides that there is no reasonable likelihood that the conditions of neglect or abuse
can be substantially corrected when the parent has “not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts.”

       The circuit court correctly terminated petitioner’s parental rights because there was no
reasonable likelihood that the conditions of abuse or neglect could be substantially corrected. As
mentioned above, petitioner failed to act in the best interest of her children despite properly
administered services. Additionally, the psychological examiner opined that petitioner had failed
to improve at the time of her psychological examination and that further therapy and services
would not have a positive effect. Petitioner continued to exercise poor judgment and expose her

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children to J.A against the DHHR’s directive. Further, the circuit court found that petitioner
would likely continue the relationship with J.A. if granted custody. According to the children’s
testimony, they were afraid of J.A. and continued association with him was not in their best
interest. We have 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). The circuit court correctly
found that there was no reasonable likelihood that the conditions of neglect or abuse could be
substantially corrected and that it was necessary for the welfare of the children to terminate
petitioner’s parental rights. Accordingly, we find no error in the circuit court’s order terminating
petitioner’s parental rights rather than imposing a less-restrictive dispositional alternative.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 8, 2018, order is hereby affirmed.

                                                                                         Affirmed.

ISSUED: October 12, 2018


CONCURRED IN BY:

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

Justice Allen H. Loughry II suspended and therefore not participating.

 




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