                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


In re: C.E. & N.E.-2
                                                                                        FILED
                                                                                   November 23, 2015
                                                                                  RORY L. PERRY II, CLERK
No. 15-0513 (Wetzel County14-JA-3 & 14-JA-4)                                    SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA



                               MEMORANDUM DECISION
         Petitioner Mother N.E.-11, by counsel Jeremiah L. Gardner, appeals the Circuit Court of
Wetzel County’s April 30, 2015, order terminating her parental rights to C.E. and N.E.-2. 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”) for
C.E., Elmer Earl Bowser Jr., filed a response on behalf of the child, also in support of the circuit
court’s order. The guardian ad litem (“guardian”) for N.E.-2, J.K. Chase, filed a response on
behalf of the child, also in support the circuit court’s order.2 On appeal, petitioner alleges that the
circuit court erred in requiring her to comply with the terms of an improvement period and in
terminating her parental rights.3

       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


       1
       Because the biological mother and one of the children in this case have the same initials,
N.E., we have distinguished each of them using numbers 1 and 2 after their initials in this
memorandum decision.
       2
         N.E.-2’s guardian’s response to this Court fails to include a section regarding the status
of the children, or regarding oral argument. This information is of the utmost importance to this
Court. The guardian’s response also fails to include any legal authority. We refer the guardian to
Rules 10(c), 10(d), 10(e), and 11(j) of the Rules of Appellate Procedure, which require briefs in
abuse and neglect appeals to contain a section on the status of the children and require all
respondents’ briefs and summary responses to clearly exhibit appropriate citations to the record
on appeal and legal authority upon which they rely. We decline to employ its use in this matter,
but we caution the guardian that Rule 10(j) provides for the imposition of sanctions where a
party’s brief does not comport with the Rules.
       3
         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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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
caused C.E. to suffer physical injuries, resulting in multiple bruises on C.E.’s body. C.E.’s father,
T.L., observed that C.E. had bruises “all up and down his arms and legs” and that his ankles were
swollen and bruised upon petitioner returning C.E. after visitation. The petition further alleged
that C.E. was not safe in petitioner’s home. Also in January of 2014, the circuit court held a
preliminary hearing and petitioner waived her rights to the preliminary hearing. Petitioner
subsequently filed a motion for a pre-adjudicatory improvement period.

       In March of 2014, the circuit court held a hearing regarding petitioner’s motion for a pre­
adjudicatory improvement period. The circuit court granted petitioner’s motion and she was
given an improvement period that would expire on September 16, 2014. The improvement
period required that petitioner maintain a healthy environment for herself and her children by
providing them with a home that was physically safe from individuals “who are known to
portray acts of an unlawful nature.”

         In September of 2014, the DHHR filed an amended petition alleging that, on or about
August 11, 2014, petitioner exposed her child, N.E.-2, to domestic violence between petitioner
and her former live-in boyfriend, R.N. The petition alleged that petitioner reported to the DHHR
that R.N. was violent with her and that she separated from him due to the domestic violence. The
petition further alleged that petitioner exposed N.E.-2 to more incidents of domestic violence
between petitioner and another boyfriend, D.E., when D.E. physically assaulted her. According
to petitioner, she and N.E.-2 went back to live with her former boyfriend, R.N., despite a history
of domestic violence in that home. Also, in September of 2014, the circuit court held a
preliminary hearing on the amended petition and, after reviewing the evidence, concluded that
petitioner repeatedly exposed N.E.-2 to domestic violence. The testimony at the hearing revealed
that petitioner and N.E.-2 were still living with R.N. and that additional instances of domestic
violence had occurred in the home. Petitioner and N.E.-2 left R.N.’s residence and began living
with D.E. Approximately ten days later, D.E. and another man, T.S., engaged in a physical
altercation in front of N.E.-2 The altercation involved weapons, including a tire iron. D.E. was
arrested the same day for kicking petitioner in the stomach and attempting to hit N.E.-2 with his
car.

         In December of 2014, the circuit court held an adjudicatory hearing and found petitioner
to be an abusing parent. The circuit court ordered a Multi-Disciplinary Team (“MDT”) meeting
and instructed that the physical and legal custody of N.E.-2 remain with the DHHR, while the
physical and legal custody of C.E. remain with his father. Petitioner was granted supervised
visitation with N.E.-2 Petitioner was not granted visitation with C.E.

       In January of 2015, the circuit court4 held a dispositional hearing that was ultimately
continued until April 21, 2015. At the close of the hearing, the circuit court terminated

       4
       Sometime between the adjudicatory hearing and the dispositional hearing, Senior Status
judge Robert B. Stone took over for Judge Mark Karl.
                                                     2


petitioner’s parental rights to both children. The circuit court determined that there was no
reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in
the near future and that the children needed continuity of care and caretakers. The circuit court
also concluded that a significant amount of time is required for children to be integrated into a
stable and permanent home environment. The order was entered on April 30, 2015. Petitioner
now appeals from this order.

       The Court has previously established the following standard of review in such cases:

               “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, we find no
error in the circuit court’s order terminating petitioner’s parental rights.

        Petitioner argues that the circuit court erred in terminating her parental rights because she
did not intend for N.E.-2 to witness the altercation between D.E. and T.S., and that she did
everything in her power to prevent the incident. However, petitioner’s argument fails to consider
our directions regarding termination upon findings that there is no reasonable likelihood that the
conditions of abuse and neglect can be substantially corrected. This Court has held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W.Va. Code [§]
       49-6-5 [1977] 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) [1977] that conditions of neglect or abuse can be substantially
       corrected.” Syl. pt. 2, In Re: R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 2, In re Dejah P., 216 W.Va. 514, 607 S.E.2d 843 (2004). Pursuant to West Virginia
Code § 49-6-5(b)(3), a situation in which there is no reasonable likelihood that the conditions of
abuse or neglect can be substantially corrected includes one in which

       [t]he abusing parent . . . [has] 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

                                                     3


       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 DHHR presented testimony that it offered petitioner services, petitioner was not
willing to solve her parenting problems, and petitioner refused to participate in at least three
MDT meetings. The DHHR further testified that during petitioner’s improvement period, she
lied to the DHHR about her abusive relationship with R.N. According to the DHHR, petitioner
lived in four different households with four different individuals and failed to maintain safe and
suitable housing for her children, as required by the terms of her improvement period. Petitioner
also failed to maintain a physically safe environment for her children or to complete parenting
skills training as required by the terms of her improvement period. Petitioner admitted that she
“failed her kids” and that her decisions exposed them to harm. The circuit court found that it was
not in the children’s best interests to be returned to petitioner’s care and that she was unwilling
or unable to provide adequately for the children’s needs. This evidence constitutes a
circumstance in which there is no reasonable likelihood that the conditions of abuse or neglect
could be substantially corrected in the near future under West Virginia Code § 49-6-5(b)(3).
Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental
rights upon these findings.

        While petitioner argues that she did not intend for N.E.-2 to witness the altercation
between D.E. and T.S., her contention is not supported by the record on appeal. Termination of
the parental rights of a parent claiming nonparticipation in the acts giving rise to the termination
is authorized when there is clear and convincing evidence that the nonparticipating parent
knowingly took no action to prevent or stop the acts to protect the child. In the Matter of Scottie
D., 185 W.Va. 191, 406 S.E.2d 214 (1991). In this case, petitioner testified that she knew that
there would be an altercation between T.S. and D.E., petitioner’s previous and current
boyfriends. Petitioner also testified that she brought N.E.-2 with her to T.S.’s home even though
she knew that there would be an altercation and that N.E.-2 should not be present. Finally,
petitioner took no action to protect her child.

        Petitioner also argues that the circuit court erred in terminating her parental rights
because it was unfamiliar with the facts of her case. Petitioner’s assignment of error relates to her
contention that the circuit court should have spent more time familiarizing itself with her case
before making its final decision. We disagree. The Honorable Robert B. Stone, Senior Status
Judge was properly assigned to the case by this Court. The matter came on for a dispositional
hearing in accordance with West Virginia Code § 49-6-5 and all parties were provided an
opportunity to be heard. The record on appeal supports the circuit court’s ruling that returning
the children to petitioner was not in their best interests and that there was no reasonable
likelihood that the conditions of abuse or neglect could be substantially corrected in the near
future. As such, we find no error in the circuit court’s order terminating petitioner’s parental
rights.

       This Court finds that the circuit court was presented with sufficient evidence upon which
to base its finding that there was no reasonable likelihood that the conditions of abuse and
neglect could be substantially corrected in the near future, and its finding that termination was in
the children’s best interests. As noted above, petitioner knowingly allowed her child to be

                                                     4


transported to a location where a violent fight occurred between two men with which she had
relationships. For these reasons, we find no error in the circuit court’s order terminating
petitioner’s parental rights.

        Next, petitioner argues that the circuit court erred in requiring her to comply with an
improvement period because she passed a polygraph examination regarding the origin of C.E.’s
physical injuries.5 While petitioner argues that she “passed” a polygraph examination and that
the circuit court should have considered the polygraph results in the abuse and neglect
proceeding, she did not file the results of the polygraph examination with the circuit court or
offer the results into evidence. The only information regarding the polygraph examination results
was from petitioner’s unsworn statement to the circuit court in April of 2015. Moreover, West
Virginia Code § 49-6-12(b) grants circuit courts discretion in granting improvement periods
upon the finding that the parent is likely to fully participate in the same. In filing her motion for a
pre-adjudicatory improvement period, petitioner agreed to comply with the terms of the
improvement period and she failed to complete said terms. The fact that petitioner may have
passed a polygraph examination does not relieve her of the obligation to comply with the terms
of her improvement period. Therefore, the circuit court did not err in requiring petitioner to
comply with the terms of her improvement period.

       For the foregoing reasons, we find no error in the decision of the circuit court and its
April 30, 2015, order is hereby affirmed.




       5
           This Court has held that

               [s]ince we refuse to accept the artificial theory of admitting a polygraph on
       the basis of an agreed stipulation and on the basis the results relate only to
       credibility, and reject for the reasons stated the admission of the polygraph as a
       scientific test, we must conclude that the polygraph is not admissible in this State.
       State v. Frazier, 162 W. Va. 620, 252 S.E.2d 49 (1979).


                                                      5


                                       Affirmed.

ISSUED: November 23, 2015

CONCURRED IN BY:

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




                                 6


