                               STATE OF WEST VIRGINIA
                             SUPREME COURT OF APPEALS
                                                                                     FILED
In re Z.N.                                                                        June 12, 2019
                                                                                 EDYTHE NASH GAISER, CLERK
No. 19-0063 (Taylor County 18-JA-47)                                             SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA




                                MEMORANDUM DECISION



         Petitioner Mother A.N., by counsel Andrew Tyler Reseter, appeals the Circuit Court of
Taylor County’s December 12, 2018, order terminating her custodial rights to Z.N.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee A. Niezgoda,
filed a response in support of the circuit court’s order. The guardian ad litem, Allison C. Iapalucci,
filed a response on behalf of the child in support of the circuit court’s order. On appeal, petitioner
argues that the circuit court erred in denying her motion for a post-adjudicatory improvement
period.2

       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. However, the
Court finds it necessary to remand this case for the entry of an order terminating petitioner’s
parental and guardianship rights. This case satisfies the “limited circumstances” requirement of
Rule 21(d) of the West Virginia Rules of Appellate Procedure, and a memorandum decision is
appropriate to resolve the issues presented.

        In March of 2018, the DHHR filed a child abuse and neglect petition alleging that petitioner
abused controlled substances, failed to supervise the child, and failed to protect the child. More
specifically, the DHHR alleged that petitioner failed to pick up five-year-old Z.N. from the school
bus, and that a neighbor observed petitioner passed out when the neighbor helped the child get
home. The DHHR alleged that petitioner abused Suboxone, which she purchased illegally.
According to the DHHR, methamphetamine was discovered in petitioner’s home during an
unannounced home visit, and petitioner admitted to using controlled substances the night before.

       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).
       2
           Petitioner alleges no assignment of error regarding the termination of her parental rights.
                                                   1
Petitioner was arrested, and the DHHR placed the child in the custody of his great-grandparents.
Petitioner waived her right to a preliminary hearing.

        In July of 2018, the circuit court held an adjudicatory hearing. Petitioner did not appear,
but was represented by counsel. The DHHR presented evidence consistent with the petition.
Additionally, evidence was presented that the child lived for “most of his life” with his great-
grandparents. The great-grandparents testified that petitioner would often drop the child off at their
home and then not reappear for days. According to the evidence, petitioner did not provide any
financial support for the child during these periods. Accordingly, the circuit court adjudicated the
child as an abused child and petitioner as an abusing parent.

        The circuit court held the final dispositional hearing in October of 2018, and petitioner was
present in person and by counsel. Petitioner moved for a three-month post-adjudicatory
improvement period. The circuit court heard evidence from a DHHR worker that petitioner ceased
participation in drug screening in May of 2018, and her services, such as supervised visitation and
parenting classes, were discontinued due to non-participation thereafter. The worker testified that,
during this time, petitioner did not contact her regarding the child. The worker also testified that
petitioner briefly participated in an inpatient substance abuse clinic, but left the facility after only
three days. Additionally, the worker testified that petitioner missed multiple multidisciplinary team
(“MDT”) meetings, including the most recent meeting in October of 2018. The child’s
psychologist submitted a report that recommended the child remain in his current placement to
avoid further turmoil in his life. The report, which the circuit court read into the record, provided
that petitioner’s pattern of leaving the child with his great-grandparents and then suddenly
returning for him “made this child uncertain and insecure about his personal and emotional safety
and [has] definitely influenced his attachment and contributed greatly to his anxiety.” Petitioner
presented no evidence.

        Ultimately, the circuit court found that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected and that continuation in
petitioner’s custody was contrary to the child’s welfare. Further, the circuit court ordered that
petitioner have no contact with the child as continued contact would lead to further abuse. On the
record, the circuit court terminated petitioner’s parental rights. However, in its December 12, 2018,
order, the circuit court terminated petitioner’s custodial rights only. Petitioner now appeals that
order.3

       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


       3
          The father voluntarily relinquished his parental rights in July of 2018. According to the
parties, the permanency plan for the child is adoption by his maternal great-grandparents.
                                                   2
       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
that petitioner is entitled to no relief on appeal.

        Petitioner argues that the circuit court erred in denying her request for a post-adjudicatory
improvement period.4 In support, petitioner asserts that she participated in MDT meetings,
services, drug screening, supervised visitations, and entered a long-term drug treatment program.
Petitioner recognizes that, pursuant to West Virginia Code § 49-4-610(2)(B), she was required to
“demonstrate[], by clear and convincing evidence, that [she was] likely to fully participate in [an]
improvement period” before she could be granted an improvement period and contends that her
participation in the listed activities provides ample evidence that she would participate. However,
petitioner’s argument misrepresents the record on appeal.

         Rather, the evidence provides that petitioner ceased participating in services in May of
2018 and did not resume any substantial participation before the October of 2018 dispositional
hearing. Contrary to petitioner’s assertion, she did not attend multiple MDT meetings, including
the October of 2018 meeting held immediately before the dispositional hearing. Additionally,
although petitioner began a long-term drug treatment program as she asserts, she left the facility
after three days and failed to complete that program or any other long-term drug treatment
program. More concerning, the evidence showed that petitioner initially missed scheduled
visitations with the child and those visitations were discontinued as she ceased participation in
services. “We have previously pointed out that the level of interest demonstrated by a parent in
visiting his or her children while they are out of the parent’s custody is a significant factor in
determining the parent’s potential to improve sufficiently and achieve minimum standards to
parent the child.” In re Katie S., 198 W. Va. 79, 90 n.14, 479 S.E.2d 589, 600 n.14 (1996) (citing
Tiffany Marie S., 196 W. Va. at 228 and 237, 470 S.E.2d at 182 and 191; State ex rel. Amy M. v.
Kaufman, 196 W. Va. 251, 259, 470 S.E.2d 205, 213 (1996)). Testimony further showed that
petitioner failed to inquire as to Z.N.’s welfare after visitation ended. Petitioner’s apparent lack of
interest in the child’s welfare and in visiting with the child is a major concern that she does not
address in her argument on appeal.


       4
         Petitioner also argues the DHHR committed reversible error in refusing to recommend to
the circuit court that she should be granted an improvement period. However, petitioner cites to
no authority to support the notion that the DHHR’s recommendations during abuse and neglect
proceedings are reviewable on appeal. Rather, regardless of the DHHR’s recommendations, “West
Virginia law allows the circuit court discretion in deciding whether to grant a parent an
improvement period.” In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015) (emphasis
added.) Thus, the decision to grant or deny a parent an improvement period rests solely with the
circuit court and not with the DHHR. Due to the reasoning more fully explained in this decision,
we find that petitioner is entitled to no relief in this regard.
                                                  3
        It is clear from the record on appeal that petitioner did not carry her burden of
demonstrating that she would fully participate in a post-adjudicatory improvement period. Further,
the psychologist’s report in this case opines that petitioner’s continued attempts for reunification
will harm the child and not be in his best interests. We have previously held “[b]oth statutory and
case law emphasize that a parent charged with abuse and/or neglect is not unconditionally entitled
to an improvement period. Where an improvement period would jeopardize the best interests of
the child, for instance, an improvement period will not be granted.” In re: Charity H., 215 W. Va.
208, 216, 599 S.E.2d 631, 639 (2004). Here, the psychologist’s report described a child tortured
by the continual state of change that petitioner created by leaving the child with the great-
grandparents with no information as to when or if she would return. The psychologist described
the child as “shell shocked” and in disbelief that he would remain in the safety of his great-
grandparent’s home for any period of time. The psychologist opined that petitioner’s actions
“made this child uncertain and insecure about his personal and emotional safety” and “contributed
greatly to his anxiety.” Clearly, this child desperately needed permanency in his life with his great-
grandparents and an improvement period for petitioner was not in his best interests. Based upon
petitioner’s failure to fully participate in services and the child’s best interests, we find no error in
the circuit court’s denial of petitioner’s motion for an improvement period.

         However, we find that the dispositional order in this case fails to reflect the circuit court’s
decision on the record as to the final disposition for Z.N. The record of the final dispositional
hearing provides that the circuit court found “there is absolutely no likelihood that the instances
giving rise to this abuse can be corrected in the foreseeable future.” Further, the circuit court stated
“it is the order of the court, [petitioner], that your parental rights to this child be terminated and
held for naught.” Yet, the resultant order terminates petitioner’s custodial rights only without any
reasoning as to why this less-restrictive disposition was better suited to the child’s best interests
than termination of petitioner’s parental rights.5 Moreover, petitioner requested a less-restrictive
dispositional alternative during the dispositional hearing, and the circuit court denied that motion.6
Therefore, we find it necessary to remand this case for the entry of an order terminating petitioner’s
parental and guardianship rights, which is consistent with the circuit court’s findings at the
dispositional hearing, and will permit fulfillment of the child’s adoption consistent with the
permanency plan approved below.



        Interestingly, all parties, petitioner included, assume on appeal that petitioner’s parental
        5

rights were terminated following the dispositional hearing.
        6
         In response to petitioner’s motion for termination of her custodial rights only, the circuit
court responded:

        [I]t sounds like [petitioner] wants what she’s always wanted, [to] keep this child in
        limbo so she can do what she continues to do, which is use drugs and do nothing.
        As opposed to making this about the child, she continues to make it about her when
        she wants some middle ground. . . . This is a young child that needs permanency.
        And in reviewing this report from [the child’s psychologist], [she] says this child
        has been in turmoil because of [petitioner].
                                                   4
        For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 12, 2018, order is hereby affirmed. However, we also remand this matter to the circuit
court for entry of an order terminating petitioner’s parental and guardianship rights, which is
consistent with its findings during the dispositional hearing. The Clerk is hereby directed to issue
the mandate contemporaneously herewith.

                                                                          Affirmed and remanded.

ISSUED: June 12, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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