                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


In re: J.M., E.A., and K.A.

No. 17-0219 (Wood County 16-JA-71, 16-JA-72, & 16-JA-73)


                               MEMORANDUM DECISION
        Petitioner Mother B.M., by counsel Jessica E. Myers, appeals the Circuit Court of Wood
County’s February 3, 2017, order terminating her parental rights to J.M., E.A., and K.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”), Justin M. Raber, filed a response on behalf of the children in support of the circuit
court’s order. Responder Father Joshua A. (the non-offending father of K.A.), by counsel Eric K.
Powell, also filed a response in support of the circuit court’s order. 2 On appeal, petitioner argues
that the circuit court erred in finding that she abused and neglected her children based on
insufficient evidence and in terminating her parental rights to the children based on erroneous
findings.

        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 June of 2016, the DHHR filed an abuse and neglect petition against petitioner alleging
that she was driving her vehicle at a high rate of speed on June 9, 2016, when she struck a bank
and rolled the vehicle three times. Two of her three children (E.A. and K.A.) were in the vehicle
during the accident and were wearing nothing but diapers. Following the accident, emergency
personnel removed petitioner and her two children from the vehicle, and they were transported
by ambulance to a hospital. Despite the serious nature of the accident, the DHHR noted that K.A.
had only scratches on his arm and a “goose egg” on his forehead, and E.A. had no discernible
injuries. Neither child was admitted for treatment. It was reported that petitioner had a suspended

       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
           A cross assignment of error by Respondent Father J.A. was withdrawn on May 18, 2017.


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driver’s license and may have been “under the influence of some type of substance.” She refused
testing at the hospital for controlled substances or alcohol. By the time an officer arrived at the
hospital, petitioner could not be found and had not been properly discharged. She left E.A. and
K.A. at the hospital.

       The DHHR further alleged that officers responded to a mental hygiene call in the late
hours of June 9, 2016. Officers found petitioner wandering in the area of the accident. She was
reportedly looking for her vehicle. She appeared belligerent and could not remember her address
and misguided the officers in their attempts to find her home. Ultimately, officers took her back
to the hospital where she stated that she had prescriptions for Xanax, Methadone, and other
medications.

        In June of 2016, the circuit court held a preliminary hearing. Petitioner was not present in
person, but was represented by court-appointed counsel. Petitioner’s counsel stated that she had
no contact with petitioner. In July of 2016, the circuit court held an adjudicatory hearing.
Petitioner was not present in person, but was represented by counsel. The DHHR moved for a
continuance to resolve service concerns for certain parties. The circuit court granted the motion.

        In August of 2016, the circuit court held a second adjudicatory hearing. Petitioner
appeared and moved for a continuance for additional time to meet with her counsel. The circuit
court granted the request and scheduled the next adjudicatory hearing for October of 2016. The
circuit court ordered petitioner to submit to a drug screen and permitted visitation with the
children if she passed her drug screen.3

        In October of 2016, the circuit court held a third adjudicatory hearing. At that hearing, an
officer and a DHHR worker testified to the details of the accident and the subsequent events at
the hospital. The officer also testified that petitioner’s license was suspended for a medical
issue.4 The DHHR worker explained that petitioner left the hospital without E.A. and K.A. on the
night of the accident and that she had not directed any other person to care for them before
leaving. It is unclear when, or if, she intended to return to the hospital, but at least one hour
passed before petitioner was located by authorities.5

        The DHHR worker further testified that E.A. and K.A. were “very dirty” when she saw
them at the hospital. The DHHR worker also noted in her testimony that petitioner had a history
of drug use. There was also testimony that petitioner had previously left her children at a gas
station, resulting in the gas station staff providing care for the children and ultimately contacting
Child Protective Services (“CPS”). At the conclusion of the hearing, the circuit court found by


       3
        At a subsequent hearing, the DHHR noted that petitioner’s drug screen tested positive
for morphine.
       4
           It is unclear what medical issue resulted in the suspension of petitioner’s license.
       5
         The exact amount of time petitioner was absent from the hospital is unclear, but the
record indicates that it was at least one hour.

                                                    2

clear and convincing proof that petitioner abused and neglected her children by leaving them
unattended at the hospital.

         In January of 2017, the circuit court held a dispositional hearing. Petitioner was not
present in person, but was represented by counsel. According to the DHHR, petitioner was given
contact information for a CPS worker but made no attempt to contact the DHHR to initiate
services. It was reported that petitioner provided no update as to her whereabouts and failed to
visit with her children during these proceedings. Both the DHHR and the guardian recommended
termination. By order entered on February 3, 2017, the circuit court found that there was no
reasonable likelihood that petitioner could substantially correct the conditions of neglect in the
near future and that the children required continuity of care and caretakers. As such, the circuit
court terminated petitioner’s parental rights to the children.6 Thereafter, the circuit court held
permanency review hearings and granted “legal and physical custody” of the children to Joshua
A. It is from the termination 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 argues that the circuit court erred in finding that she abused and
neglected her children. Petitioner claims that the evidence of her conduct at the hospital, and
immediately thereafter, was insufficient to prove abuse or neglect under the clear and convincing
standard of proof. Petitioner asserts, as she did below, that her actions were the result of her
injuries from the accident and should not be held against her. The DHHR, guardian, and
Respondent Father Joshua A. respond that the evidence was sufficient to support the circuit
court’s findings.

       6
         Petitioner’s parental rights to the children were terminated below. Further, each child has
a different biological father. According to the DHHR, the parental rights of David M. (father of
J.M.) and the unknown father of E.A. were terminated below. Joshua A. is the non-offending
father of K.A. His parental rights to K.A. are intact.


                                                 3

       We have previously held that

               “W[est] V[irginia] Code [§] 49-6-2(c) [now West Virginia Code § 49-4­
       601(i)], requires the [DHHR], in a child abuse or neglect case, to prove
       ‘conditions existing at the time of the filing of the petition . . . by clear and
       convincing proof.’ The statute, however, does not specify any particular manner
       or mode of testimony or evidence by which the [DHHR] is obligated to meet this
       burden.” Syllabus Point 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867
       (1981).

Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997). West Virginia Code § 49-1­
201 defines a “neglected child” as a child “[w]hose physical or mental health is harmed or
threatened by a present refusal, failure or inability of the child’s parent, guardian or custodian to
supply the child with necessary . . . supervision” not based solely on the parent’s lack of financial
means.

       In this case, it is undisputed that petitioner drove her vehicle on a suspended license with
two young children (clothed only in diapers) as passengers; was involved in a serious vehicular
accident; left the hospital without properly discharging; and left E.A. and K.A. (then one year old
and four years old, respectively) unsupervised at the hospital with no clear intention to return for
them.7 While she attempts to forward the affirmative defense that she suffered an injury in the
accident that caused her behavior, there was no medical evidence presented below that petitioner
was disoriented or confused due to an injury from the accident. There was, however, evidence
admitted into the record that petitioner had previously left her children at a gas station, requiring
CPS intervention. Notably, E.A. and K.A. were at ages that require significant adult supervision.
Based on the circumstances of this case, we find no error with regard to the sufficiency of the
evidence.

        Petitioner’s second assignment of error is that the circuit court erred in terminating her
parental rights. Petitioner claims that there was insufficient evidence to support the circuit court’s
finding regarding her likelihood to correct her neglect. Specifically, petitioner claims that she
was not provided with services or an improvement period to attempt to correct the conditions of
abuse and neglect. According to her argument, where she had no services or improvement period
to demonstrate her likelihood to correct the conditions of neglect, the circuit court could not find
that there was no reasonable likelihood that she could do so. We disagree.

        The issue before us is whether the circuit court committed error in finding that there was
no reasonable likelihood that the conditions of abuse or neglect could be substantially corrected
in the near future. West Virginia Code §§ 49-4-604(c)(2) and (3) provide that “no reasonable
likelihood that the conditions of abuse or neglect can be substantially corrected” exists under the
following circumstances, among others:



       7
        There is no indication in the record on appeal that E.A. and K.A. were admitted for
treatment or under the care of hospital staff.
                                                  4

       (2) The abusing parent or parents have willfully refused or are presently unwilling
       to cooperate in the development of a reasonable family case plan designed to lead
       to the child’s return to their care, custody and control; [or]

       (3) The abusing parent . . . ha[s] not responded to or followed through with a
       reasonable family case plan or other rehabilitative efforts[.]

According to the undisputed evidence presented by the DHHR, petitioner was provided with
contact information for a CPS worker, but she made no attempt to contact that CPS worker.
Further, during the proceedings below, petitioner failed to appear for many of the scheduled
hearings; failed to provide anyone with an update as to her whereabouts throughout the
proceedings; failed a drug screen for morphine without providing a valid prescription for that
substance; and failed to visit her children at all. Petitioner clearly failed to participate throughout
this case. Given these circumstances, we find that the evidence established that petitioner refused
to and was unwilling to cooperate with the DHHR and failed to follow through with the DHHR’s
efforts to help her. As such, there is no error in the circuit court’s finding regarding her
reasonable likelihood to correct the conditions of neglect in the near future.

         To the extent petitioner argues that she was entitled to an improvement period, we also
disagree. First, we have explained that “[t]ermination . . . may be employed without the use of
intervening less[-]restrictive alternatives when it is found that there is no reasonable likelihood . .
. that conditions of neglect or abuse can be substantially corrected.” In re Katie S., 198 W.Va. at
82, 479 S.E.2d at 592, syl. pt. 7, in part. Here, the circuit court’s findings foreclosed the need an
improvement period or any less-restrictive dispositional alternatives than termination.

       Second, we have held that

               in order to remedy the abuse and/or neglect problem, the problem must
       first be acknowledged. Failure to acknowledge the existence of the problem, i.e.,
       the truth of the basic allegation pertaining to the alleged abuse and neglect or the
       perpetrator of said abuse and neglect, results in making the problem untreatable
       and in making an improvement period an exercise in futility at the child’s
       expense.

In re Kaitlyn P., 225 W.Va. 123, 126, 690 S.E.2d 131, 134 (2010). Petitioner did not
acknowledge the underlying problems at issue in this case. Therefore, she was not entitled to a
period of parental improvement designed to remedy the conditions of neglect. Without an
acknowledgement of the problem, an improvement period would have been an exercise in futility
in this case. For those reasons, we find no error in the circuit court’s termination without granting
petitioner an improvement period.

       In this case, the circuit court properly found that there was no reasonable likelihood that
she could substantially correct the conditions of abuse and neglect in the near future.
Additionally, the circuit court found that the children’s best interests required termination. West
Virginia Code § 49-4-604(b)(6) directs circuit courts to terminate parental rights based on these
findings.

                                                  5

        While we affirm the circuit court’s termination of petitioner’s parental rights, our review
of this matter does not end there.8 We note several deficiencies in the parties’ briefs and the
circuit court’s orders regarding the permanency of the children. Rule 11(i) of the West Virginia
Rules of Appellate Procedure provides that briefs in abuse and neglect appeals “filed by the
parties (including the guardian ad litem) must contain a section . . . setting forth the current status
of the minor children and any plans for permanent placement, and the current status of the
parental rights of all the children’s parents.” The parties failed to adequately follow Rule 11(i).9

      Further, having reviewed the circuit court’s permanency order, as amended and entered
on May 15, 2017, we find that it fails to achieve permanency for the children. Rule 3(n) of the
West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings defines “permanent
placement” as follows:
       8
           As we recently noted in In re Timber M., 231 W.Va. 44, 60, 743 S.E.2d 352, 368 (2013):

               [T]his Court has previously addressed matters not raised in the appeal of
       cases involving the welfare of children. See In re Jonathan Michael D., 194
       W.Va. 20, 27, 459 S.E.2d 131, 138 (1995) (“On the issue of the improvement
       period, we sua sponte address an issue of particular concern to this Court.”); In re
       Jamie Nicole H., 205 W.Va. 176, 183, 517 S.E.2d 41, 48 (1999) (“While
       Appellant has not raised the sufficiency of the trial court’s dispositional order, we
       address this issue sua sponte.”). Cf. In re K.R., 229 W.Va. 733, 744 n. 23, 735
       S.E.2d 882, 893 n. 23 (2012) (“While neither party assigned this specific ruling as
       error, this does not affect this Court’s ability to determine it to be error: [I]t is
       within the authority of this Court to “sua sponte, in the interest of justice, notice
       plain error.” Cartwright v. McComas, 223 W.Va. 161, 164, 672 S.E.2d 297, 300
       (2008) (quoting Syl. Pt. 1, in part, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676
       (1998).”)); Ringer v. John, 230 W.Va. 687, 742 S.E.2d 103 (2013) (Court
       deciding case on the basis of an issue not raised by the parties).
       9
         Petitioner fails to include any Rule 11(i) statement. The guardian provides only the
following skeletal statement: “J.M., E.A., & K.A. are all placed with Respondent Father,
J[oshua] A., by Order of the Circuit Court, entered March 29, 2017.” The guardian’s use of the
word “placed” does not indicate a method of permanency (i.e., adoption, legal guardianship,
etc.). Further, although referenced by the guardian, the circuit court’s March 29, 2017, order is
not included in the record on appeal and was not made a part of the record in a supplemental
appendix. The DHHR states that “[a]ll three children have been reunified with J[oshua] A.[,]”
which mirrors language in the case plan filed prior to the dispositional hearing that indicated that
the children were then placed with K.A.’s paternal grandmother with a permanency plan of
“reunification” with Joshua A. The word “reunification” is incorrect here because two of the
children (E.A. and J.M.) cannot legally “reunify” with Joshua A., who is not their parent. For his
part, Joshua A. states only that K.A. was in the physical custody of his paternal grandmother and
in the legal custody of the DHHR. Joshua A. provides no explanation for K.A.’s placement with
the grandparent, and he provides no discussion of E.A. or J.M. Based on these statements, the
permanency plans for E.A. and J.M. are unclear.

                                                  6

       “Permanent placement” of a child shall mean:

               (1) The petition has been dismissed and the child has been returned to the
               home or to a relative with no custodial supervision by the Department;

               (2) The child has been placed in the permanent custody of a non-abusive
               parent; or

               (3) A permanent out-of-home placement of the child has been achieved
               following entry of a final disposition order. A permanent out-of-home
               placement has been achieved only when the child has been adopted,
               placed in a legal guardianship, placed in another planned permanent living
               arrangement (APPLA), or emancipated[.]

Moreover, West Virginia Code § 49-4-608(e) provides that

       [a]t the conclusion of the [permanency] hearing the court shall, in accordance
       with the best interests of the child, enter an order containing all the appropriate
       findings. The court order shall state:

               ....

       (6) . . . in the case of any child for whom another planned permanent living
       arrangement [APPLA] is the permanency plan, the court shall (A) inquire of the
       child about the desired permanency outcome for the child; (B) make a judicial
       determination explaining why, as of the date of the hearing, another planned
       permanent living arrangement is the best permanency plan for the child; and, (C)
       provide in the court order compelling reasons why it continues to not be in the
       best interest of the child to (i) return home, (ii) be placed for adoption, (iii) be
       placed with a legal guardian, or (iv) be placed with a fit and willing relative.

        In this case, the circuit court’s May 15, 2017, amended order found that permanency was
achieved by placing the children “in the legal and physical custody of [Joshua A.]” Without
question, it is proper in this case to grant Joshua A., as a non-offending parent, permanent
custody of K.A. See W.Va. R. Proc. for Child Abuse and Neglect P. 3(n)(2) and W.Va. Code §
49-4-604(b)(6) (upon terminating parental rights of an abusing parent, circuit court shall
“commit the child to the permanent sole custody of the nonabusing parent”). However, E.A. and
J.M. were not Joshua A.’s children. Therefore, merely granting Joshua A. “legal and physical
custody” of E.A. and J.M. does not adequately achieve permanency for those children. Assuming
that the circuit court intended to place E.A. and J.M. in an APPLA with Joshua A., its amended
order fails to make any of the requisite findings as required by statute. Indeed, the circuit court’s
amended order fails to cite to any legal authority regarding permanent placement.

       Permanency for children involved in abuse and neglect proceedings is of the utmost
importance to this Court. Given the circumstances of this case, we remand this matter for further

                                                 7

proceedings to achieve permanency for these children, as contemplated by the West Virginia
Rules of Procedure for Child Abuse and Neglect Proceedings and the relevant statutory
authority.

        We remind the circuit court that permanent placement review hearings must be held at
least once every three months until permanency is achieved and that permanency must be
achieved within twelve months of disposition. See W.Va. R. Proc. for Child Abuse and Neglect
P. 39(b) (establishing a duty to hold a permanent placement review hearing at least once every
three months until permanent placement is achieved, among other requirements); id. at Rule 43
(requiring circuit courts to achieve permanent placement of an abuse and neglected child within
twelve months of disposition). Additionally, the Court reminds the guardian that his “role in
abuse and neglect proceedings does not actually cease until such time as the child[ren are] 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, the circuit court’s February 3, 2017, order is hereby affirmed,
but the matter is remanded for further proceedings regarding the children’s permanency as
directed.


                                                                         Affirmed and remanded.

ISSUED:


CONCURRED IN BY:

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




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