                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: N.M.                                                                        FILED
                                                                                 May 23, 2016
No. 15-0450 (Wayne County 14-JA-06)                                              RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA


                              MEMORANDUM DECISION

        Petitioner Mother D.M., by counsel Abraham J. Saad, appeals the Circuit Court of Wayne
County’s April 8, 2015, order terminating her parental rights to N.M. 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”), David R.
Tyson, filed a response on behalf of the child supporting the circuit court’s order. Petitioner filed
a reply. On appeal, petitioner argues that the circuit court erred in terminating her parental rights
because she successfully completed her improvement period.1

        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 DHHR filed an abuse and neglect petition alleging that petitioner
brought N.M. into the Cabell Huntington Hospital with a head injury resulting from a fall at the
home. N.M. was diagnosed with a skull fracture caused by blunt force trauma and tested positive
for higher that normal lead levels. Petitioner could not give a clear account of how N.M. was
injured. The DHHR also alleged that petitioner’s home was unsanitary and unsafe. According to
the petition, the home was severely water damaged; tarps and blankets covered every door way;
and there were large amounts of animal feces and urine throughout the home. Petitioner waived
her rights to a preliminary hearing on January 24, 2014. The petition was later amended to
include petitioner’s admission that she previously voluntarily relinquished her parental rights to
four other children; a neurologist’s findings that the severity of N.M.’s injury was not consistent
with petitioner’s account of the injury; and a pediatrician’s findings that N.M. was
developmentally delayed and behind on his immunizations.



       1
         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 ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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        In March of 2014, the circuit court held an adjudicatory hearing wherein petitioner
admitted to the unsanitary and unsafe conditions of the house and stipulated to her failure to
properly supervise N.M. Based upon the evidence, the circuit court found that petitioner abused
and neglected N.M. because her lack of supervision resulted in N.M.’s serious head injury. The
circuit court also found that petitioner’s home was unsafe and unsanitary. Petitioner was granted
supervised visitation with N.M.

         In April of 2014, the circuit court granted petitioner’s request for a post-adjudicatory
improvement period. In December of 2014, the circuit court extended petitioner’s improvement
period at her request. The circuit court also granted the DHHR discretion to provide more
visitation or unsupervised visitation.

         In March of 2015, the circuit court held a dispositional hearing. A DHHR case worker
testified that petitioner continued to cooperate with the family case plan and participate in
services, but continued to display deficits in her parenting and decision-making abilities. The
case worker testified that petitioner did not recognize safety hazards and was not at the skill level
necessary to care for N.M., despite receiving hundreds of hours of individualized parenting and
adult life skills instruction. She also testified that petitioner was not open to learning new
parenting styles, did not utilize learned skills appropriately, and indicated to the service provider
that “she [was] going to do it her way, anyway, because she knows what will work.” The case
worker testified that N.M required constant supervision because of his motor and cognitive
delays. Based upon the evidence, the circuit court found that there was no reasonable likelihood
that petitioner could substantially correct the circumstances of abuse and neglect in the near
future. The circuit court further found that, based upon petitioner’s limitation and N.M.’s special
needs, termination of petitioner’s parental rights was in N.M.’s best interests. The circuit court
terminated petitioner’s parental rights by order dated April 8, 2015. It is from this 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). On appeal, petitioner contends
that she substantially complied with the terms and conditions of her improvement period; thus,

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she argues termination of her parental rights was inappropriate. However, in our review, we are
not limited to petitioner’s success or failure with respect to the services offered. “Although
parents have substantial rights that must be protected, the primary goal in cases involving abuse
and neglect, as in all family law matters, must be the health and welfare of the children.” Syl. Pt.
3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

       Moreover, we have instructed that

               [a]t the conclusion of the improvement period, the court shall review the
       performance of the parents in attempting to attain the goals of the improvement
       period and shall, in the court’s discretion, determine whether the conditions of the
       improvement period have been satisfied and whether sufficient improvement has
       been made in the context of all the circumstances of the case to justify the return
       of the child.

Syl. Pt. 6, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

         While the circuit court acknowledged that petitioner substantially complied with the
terms and conditions of her improvement period, we have consistently held that when “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). We have also recognized
that it is possible for a parent to show “compliance with specific aspects of the case plan, she
failed to improve . . . [the] overall attitude and approach to parenting.” W.Va. Dep’t. of Human
Servs. v. Peggy F., 184 W.Va. 60, 64, 399 S.E.2d 460, 464 (1990).

        Despite petitioner’s substantial compliance with the terms and conditions of her
improvement period, there were continuing concerns that she did not recognize safety hazards
and did not possess the necessary skills to care for N.M., despite receiving individualized
parenting and adult life skills instruction. The record on appeal demonstrated that petitioner did
not utilize learned skills appropriately and indicated to the service provider that “she [was] going
to do it her way, anyway, because she knows what will work.” The evidence established that
hours of services yielded little positive results regarding petitioner’s ability to parent N.M. The
circuit court found that petitioner continued to cooperate with and participate in her improvement
period but that “she [had] limited psychological abilities and [was] limited in her ability to
properly care for and supervise” N.M. The circuit court further found that petitioner did not
“internalize the skills she [was] being taught” and did not follow up on parenting
recommendations. The circuit court determined that N.M.’s special needs required “constant
supervision and intensive care.” Based on the evidence before it, the circuit court correctly
determined that petitioner did not successfully complete her improvement period.

        Additionally, the circuit court found that that there was no reasonable likelihood that
petitioner could substantially correct the conditions of abuse and neglect in the near future.
Pursuant to West Virginia Code § 49-4-604(c)(3), there is no reasonable likelihood that the
conditions of neglect or abuse can be substantially corrected when

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       [t]he abusing parent or parents have not responded to or followed through with a
       reasonable family case plan or other rehabilitative efforts of social, medical,
       mental health or other rehabilitative agencies designed to reduce or prevent the
       abuse or neglect of the child, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child.

The evidence on the record supports the circuit court’s determination that petitioner could not
implement any of the parenting skills or education she learned through services and could not
properly care for N.M., based on her own limitations and N.M.’s special needs.

        Moreover, the circuit court correctly terminated petitioner’s parental rights upon its
finding that there was no reasonable likelihood that she could substantially correct the conditions
of abuse and neglect and that termination was in N.M.’s best interest. In accordance with West
Virginia Code § 49-4-604(b)(6), upon such a finding, the circuit court is directed to terminate
petitioner’s parental rights.

        For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 8, 2015, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: May 23, 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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