                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                     FILED
In re B.F., M.J., and Z.J.
                                                                                   May 14, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0054 (Gilmer County 17-JA-10, 11, and 12)                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Mother C.J., by counsel Jared S. Frame, appeals the Circuit Court of Gilmer
County’s December 27, 2017, order terminating her parental and custodial rights to B.F., M.J.,
and Z.J.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”), David Karickhoff, 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 terminating her
parental rights without first granting her 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In September of 2017, the DHHR filed a petition alleging that petitioner was homeless
and, as a result, was subjecting her children to unsafe and unsanitary living conditions. The
petition alleged that when DHHR workers came to remove the children from petitioner’s custody
that the two older children were found sleeping on the bare floor of a pantry in the home they
were currently staying. The pantry was full of chemicals, pesticides and other cleaning supplies,
some of which were in reach of the children and without the lids attached. DHHR workers also
found a coffee can that contained a mixture of Cheerios and animal food in the room. The
youngest child was found strapped into a car seat in the front room of the house. According to
the petition, petitioner was feeding the youngest child watered-down two-percent milk, but the
milk was observed to be spoiled and curdled in the baby’s bottle. Finally, it was alleged that
petitioner had a previous abuse and neglect petition filed against her in regard to an older child
                                                            
              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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not at issue in this matter which alleged domestic violence in the presence of the child, difficulty
coping with the child’s crying, and destructive ideations. Ultimately, petitioner relinquished her
parental rights to that child in 2013.

        Petitioner waived her preliminary hearing. According to the parties, petitioner was
charged with felony child endangerment and jailed as a result of the conditions found when the
children were removed from her care. Petitioner remained incarcerated throughout the
proceedings.

        The circuit court held an adjudicatory hearing in September of 2017 and the DHHR
presented evidence to support the allegations in the petition. After the presentation of evidence,
the circuit court found that petitioner was an abusing parent and that the children were abused
and neglected children.

        In December of 2017, the circuit court took evidence related to petitioner’s motion for a
post-adjudicatory improvement period and the DHHR’s motion for termination of parental
rights. A psychologist opined that petitioner’s prognosis for improved parenting was “virtually
non-existent.” In support of her opinion, the psychologist noted that petitioner previously
received DHHR intervention, such as parenting and adult life skills classes, on four separate
occasions and still continued to make poor choices for her children. Additionally, the
psychologist testified that petitioner did not take responsibility for these poor choices, but rather
attempted to blame others, stating that she “trusted the wrong people.” A DHHR worker testified
that the DHHR was seeking termination due to the multiple unsuccessful past interventions and
that further interventions would likely be unsuccessful. Petitioner testified that she was
participating in parenting classes while incarcerated and that she would participate in any
services required if granted an improvement period. Ultimately, the circuit court found that
petitioner received services on four separate occasions and that her failure to improve was due to
a lack of motivation. The circuit court further found that there was no reasonable likelihood that
petitioner would benefit from further services. Finally, the circuit court concluded that it was in
the best interest of the children to terminate petitioner’s parental and custodial rights and did so
in its December 27, 2017, order.2 Petitioner now appeals that order.

              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
                                                            
              2
        The father of D.F. is deceased, and the permanency plan for D.F. is adoption in the
current foster home. The father of M.J. was granted a pre-adjudicatory improvement period.
According to the parties, the father of Z.J. is currently incarcerated and the circuit court is
awaiting a competency evaluation before proceeding. Further, the children’s permanency plan is
either continuation in the custody of their respective fathers or adoption in their instant foster
home. All three siblings are currently living in a foster home together.




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       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.

       Petitioner’s only assignment of error is that the circuit court erred in terminating her
parental and custodial rights without granting her an improvement period. Petitioner asserts that
she was capable of participating in an improvement period and that the circuit court placed
undue emphasis on her incarceration in determining that she could not participate. Respondents
argue that the circuit court correctly found that there was no reasonable likelihood that further
services would remedy the conditions of abuse and neglect because she failed to remedy the
circumstances surrounding her chronic history of abuse and neglect even after the DHHR
provided her with extensive services. We agree with respondents.

        The decision to grant or deny an improvement period rests in the sound discretion of the
circuit court. See In re M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia
law allows the circuit court discretion in deciding whether to grant a parent an improvement
period”); Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (“It is within the
court’s discretion to grant an improvement period within the applicable statutory requirements”).
We have also held that a parent’s “entitlement to an improvement period is conditioned upon the
ability of the [parent] to demonstrate ‘by clear and convincing evidence, that the [parent] is likely
to fully participate in the improvement period . . . .’” In re Charity H., 215 W.Va. 208, 215, 599
S.E.2d 631, 638 (2004). Further, 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 for a post-adjudicatory
improvement period because it was unlikely that petitioner would have made any improvement.
It is clear and uncontradicted in the record that petitioner was the beneficiary of services
provided by the DHHR on multiple occasions. Petitioner subjected her children to dangerous and
unsanitary conditions, despite the previous education for the proper care of young children. At
the dispositional hearing, petitioner admitted that she made a poor choice in allowing her
children to stay in the home where they were found. Yet, despite the instruction petitioner was
previously provided, she still made that choice for her children. Petitioner’s parenting was
simply not improving after continual exposure to the parenting and adult life skills curriculum.
Thus, the circuit court was correct in concluding that petitioner’s parenting would not improve
after a fifth series of services.

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        Petitioner argues that the circuit court placed undue consideration on her incarceration;
however, according to the record, the circuit court was much more concerned with petitioner’s
failure to provide a safe home for her children despite continual DHHR interventions.3
Accordingly, we find that petitioner is not entitled to relief on this issue. The circuit court has
discretion in its decision to grant an improvement period, and we find no abuse of discretion in
this case.

         The same evidence supports the circuit court’s termination of petitioner’s parental and
custodial rights. West Virginia Code § 49-4-604(b)(6) provides that, upon findings that “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 [children],” the circuit may terminate
the parental rights of an abusing parent. Additionally, West Virginia Code § 49-4-604(c)
provides that no reasonable likelihood that the conditions of neglect or abuse can be substantially
corrected exist when “the abusing adult . . . [has] demonstrated an inadequate capacity to solve
the problems of abuse or neglect on their own or with help.” Petitioner demonstrated that even
with four courses of instruction on how to properly parent her children she continued to make
poor decisions and put her children at risk. Petitioner was given ample opportunity to correct her
parenting with no positive outcome. Further, petitioner subjected the children to living conditions
that threatened their health and safety. We have previously held that

                      “[c]ourts 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).

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4. The circuit court properly considered the
young ages of the children and the extent that petitioner’s actions threatened their health and
welfare. Accordingly, we find no error in the circuit court’s termination of petitioner’s parental
and custodial rights.

       Lastly, because the proceedings in circuit court regarding the fathers are still ongoing,
this Court reminds the circuit court of its duty to establish permanency for the children. Rule
39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires:

              At least once every three months until permanent placement is achieved as
              defined in Rule 6, the court shall conduct a permanent placement review
              conference, requiring the multidisciplinary treatment team to attend and report as

                                                            
              3
         Petitioner further argues that the circuit court relied solely on her incarceration to
terminate her parental and custodial rights. We do not find that this is the case, given the circuit
court’s reliance on other factors in ordering termination.



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       to progress and development in the case, for the purpose of reviewing the progress
       in the permanent placement of the child.

        Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules
of Procedure for Child Abuse and Neglect Proceedings to find permanent placement for children
within twelve months of the date of the dispositional order. As this Court has stated,

               [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
       placement of an abused and neglected child following the final dispositional order
       must be strictly followed except in the most extraordinary circumstances which
       are fully substantiated in the record.

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that

               [i]n determining the appropriate permanent out-of-home placement of a
       child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4-
       604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
       home for the child and shall consider other placement alternatives, including
       permanent foster care, only where the court finds that adoption would not provide
       custody, care, commitment, nurturing and discipline consistent with the child’s
       best interests or where a suitable adoptive home can not be found.

Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 27, 2017, order is hereby affirmed.

                                                                                         Affirmed.

ISSUED: May 14, 2018


CONCURRED IN BY:

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




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