                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                  FILED
                                                                             November 21, 2018
In re S.J., A.J.-1, and A.J.-2                                                 EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
No. 18-0243 (Braxton County 17-JA-10, 11, and 12)


                                 MEMORANDUM DECISION
         Petitioner Mother K.J., by counsel Jared S. Frame, appeals the Circuit Court of Braxton
County’s February 26, 2018, order terminating her parental rights to S.J., A.J.-1, and A.J.-2.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans,
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 petitioner’s appeal. Petitioner
filed a reply. On appeal, petitioner argues that the circuit court erred in denying her an
improvement period and terminating her parental rights based upon a finding that she failed to
accept responsibility for her actions and was unlikely to successfully participate in 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 vacates the circuit court’s February 26, 2018, dispositional order as it relates
to petitioner, and remands the case to the circuit court with instructions to grant petitioner an
improvement period and visitation with the children. 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 2017, the DHHR filed a child abuse and neglect petition against petitioner
and the father. According to the petition, in February of 2017, the children suffered an event

       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). Additionally, because two of the children share the same
initials, we will refer to them as A.J.-1 and A.J.-2, respectively, throughout this memorandum
decision.




                                                 1
which rendered them unresponsive while in petitioner’s care. The children were transported to a
hospital in Braxton County, West Virginia but remained unresponsive and were then transferred
to a hospital in Monongalia County, West Virginia. The DHHR alleged that the children were
unresponsive for over twenty hours despite medical personnel administering Narcan and other
medical assistance.2 Petitioner notified the medical personnel that A.J.-1 had a similar incident a
few months prior when she fell off of a couch and was rendered unresponsive. Additional testing
was performed and the children were released to petitioner’s care two days later. Subsequently,
test results came back demonstrating that S.J. tested positive for a synthetic marijuana. Because
all of the children exhibited the same symptoms upon admission, the medical personnel
concluded that all three children ingested the same substance. However, petitioner denied
possession or personal use of the substance.

        After further investigating petitioner’s claim that A.J.-1 suffered a similar incident after
falling off of a couch, the DHHR filed an amended petition in April of 2017. The DHHR alleged
that A.J.-1 was rendered unresponsive for forty-eight hours following the incident in which
petitioner alleged the child fell off of a couch, but she was not definitively diagnosed with any
ailment despite undergoing a series of medical tests. The child’s pediatrician was contacted and
he stated that A.J.-1 had no visible injury to her head and noted that, had she fallen as alleged,
the child would have put her hands out to catch herself, suggesting that she would not have been
rendered unresponsive by the incident described by petitioner. The DHHR, therefore, alleged
that this incident arose from the child ingesting synthetic marijuana rather than an alleged fall as
reported by petitioner. Regarding the February of 2017 incident, the DHHR advised that the
water in petitioner’s home was tested but did not contain anything that would have caused the
children to test positive for synthetic marijuana.

        In May of 2017, a second amended petition was filed wherein the DHHR alleged that it
received audio recordings of phone calls between petitioner and the incarcerated father in which
they spoke to each other using codes, indicating that they were attempting to disguise their drug
use. Based on the recordings, the DHHR alleged that the children’s lives were threatened as a
result of their ingestion of synthetic marijuana and consequent unresponsiveness.

        The circuit court held an adjudicatory hearing in June of 2017, during which petitioner
stipulated to the allegations contained in the petition. Petitioner also admitted to the circuit court
that she previously provided untruthful testimony at the preliminary hearing regarding her
marijuana use. The circuit court accepted petitioner’s stipulation and adjudicated her as an
abusing parent. Thereafter, petitioner requested a post-adjudicatory improvement period.

        In November of 2017, the circuit court held a dispositional hearing. The DHHR presented
the testimony of a DHHR worker who recommended termination of petitioner’s parental rights,
alleging that petitioner had not admitted any wrongdoing, and further recommended denying
petitioner an improvement period. However, on cross-examination, the DHHR worker admitted


       2
        The circuit court later found that the children had been unresponsive for approximately
twelve hours, rather than twenty.



                                                  2
that she had not prepared the case plan, had not fully reviewed the case file prior to her
testimony, and had not read the adjudicatory order. When asked whether reading the
adjudicatory order would change her recommendation, the worker responded “I’m not sure. I’d
need to read it.” The DHHR worker did admit, however, that petitioner had been compliant with
services offered and was bonded with her children. A service provider further testified that
supervised visitation with the children went well and that the children were always excited to see
petitioner.

       Petitioner testified that she complied with all of her services. Petitioner provided drug
screens three times a week, only once testing positive for alcohol, which she admitted was due to
consuming a glass of wine with dinner the night before. Petitioner testified that she had
committed “[t]he worst mistake [she] had ever made” and requested that she be granted the
opportunity to participate in an improvement period. When specifically asked what she had done
wrong, petitioner stated that she allowed her children around an illegal substance, specifically
synthetic marijuana. The guardian recommended that petitioner be granted an improvement
period as well.

        After hearing argument, the circuit court took the matter under advisement and later
issued an order in February of 2018, denying petitioner’s request for a post-adjudicatory
improvement period and terminating her parental rights. Specifically, the circuit court found that
petitioner “had denied any exposure to controlled substances to hospital personnel and still
denies exposure by children to synthetic [marijuana].” Later in the order, the circuit court found
that, at the dispositional hearing, petitioner “finally admitted to having liquid K2 (synthetic
[marijuana]) but denies exposure by the children.” Moreover, the circuit court held that
petitioner’s explanation that A.J.-1 had been rendered unresponsive due to falling off the couch
was contrary to the medical opinion of the child’s pediatrician. As such, the circuit court
concluded that petitioner failed to establish that she would comply with the terms and conditions
of an improvement period, that there was no reasonable likelihood that she could correct the
conditions of abuse in the near future, and that termination was necessary for the children’s
welfare. It is from the February 26, 2018, dispositional order that petitioner appeals.3

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

               “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


        3
       The parents’ parental rights were terminated below. The children were placed in the
home of the maternal grandmother with a permanency plan of adoption therein.



                                                 3
       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 terminating her parental rights
without first granting her an improvement period based upon erroneous findings that she did not
accept responsibility for her actions or demonstrate that she would fully comply with services. In
support of her argument, petitioner states that she stipulated to the conditions of abuse and
neglect, testified that she exposed the children to synthetic marijuana, and fully participated in
the few services she was granted. We agree with petitioner.

        We have long held that 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.”). Pursuant to West Virginia Code § 49-4-610(2)(B), circuit courts may
grant a parent a post-adjudicatory improvement period if “[t]he [parent] demonstrates, by clear
and convincing evidence, that the [parent] is likely to fully participate in the improvement period
and the court further makes a finding, on the record, of the terms of the improvement period[.]”

        During the proceedings below, the circuit court found that petitioner failed to accept
responsibility for her actions. The circuit court further found that, at the dispositional hearing,
petitioner admitted to having synthetic marijuana but continued to deny that the children were
exposed to the same. However, these findings were not supported by the record.4

        Rather, the record establishes that the DHHR worker who testified that petitioner failed to
accept responsibility for her actions was unprepared to testify to the matter. The worker testified
that she did not prepare petitioner’s case plans. In fact, when asked whether she had anything to
do with petitioner’s case plan she responded “[n]o. My name is probably on them because I was
the last person that handled them but, no, . . . I didn’t write them, no.” Further, when asked


       4
         To the extent that the circuit court might have based these findings on petitioner’s
testimony at a prior hearing that A.J.-1 experienced similar symptoms months before the filing of
the petition due to an alleged fall off of a couch, we note that the circuit court only found that
petitioner’s testimony was contrary to that of the child’s pediatrician and did not enumerate any
findings that the child was exposed to synthetic marijuana during that event. In fact, the record
demonstrates that no drug testing was performed on the child at that time and she was never
definitively diagnosed with any ailment.



                                                 4
whether she knew what was in the case plans, the DHHR worker admitted that she did not and
had not reviewed the case plan in its entirety. After being asked several times, the worker finally
conceded that she had also not read the adjudicatory order. As such, we find that the DHHR
worker had no personal knowledge of the case apart from the admittedly few conversations with
the active case worker, did not prepare for the hearing, and had not read petitioner’s stipulation
set forth in the adjudicatory order.

         Moreover, contrary to the DHHR worker’s testimony, there was substantial evidence that
petitioner accepted responsibility for her actions and demonstrated that she was fully likely to
participate in an improvement period. At the adjudicatory hearing, petitioner admitted that she
provided false information to the medical personnel attending to her children and stipulated to
the allegations contained in the petition. Thereafter, at the dispositional hearing, petitioner
testified “I take full blame for this happening.” The circuit court directed petitioner to explain
what she did wrong and petitioner responded “I had an illegal substance, and I had it in the same
place as my children.” Further, she stated that the illegal substance to which she referred was
synthetic marijuana.

        Testimony also established that petitioner complied with every service she was offered.
She submitted to drug screens two to three times a week for at least eight months and never
tested positive for marijuana or any other illegal substance. Petitioner completed her schooling
and obtained employment by the time of the dispositional hearing. She filed for divorce from her
husband, whose parental rights were terminated during the proceedings below, and fully
participated in supervised visitation with the children. Indeed, the same DHHR worker who
recommended termination of petitioner’s parental rights admitted that petitioner was compliant
with supervised visitation, that the DHHR had no concerns regarding the same, and that
petitioner attended every multidisciplinary team meeting and court hearing. The service provider
also testified that the supervised visits went “[g]reat” and that she did not have any concerns with
petitioner. Based upon this testimony, the circuit court found that petitioner had a strong bond
with the children.

        Having reviewed the record, we find that the circuit court abused its discretion in denying
petitioner a post-adjudicatory improvement period. Here, petitioner accepted responsibility for
her actions, complied with every service offered to her, and had a strong bond with the children,
all of which lends itself to the conclusion that she was likely to fully participate in an
improvement period and should have been granted one. Because we are vacating the
dispositional order so that petitioner can be granted an improvement period, we decline to
address the termination of her parental rights at this time.

       For the foregoing reasons, we vacate the circuit court’s February 26, 2018, dispositional
order as it relates to petitioner5, and remand this matter to the circuit court with instructions to



       5
         To the extent that the dispositional order discusses disposition of the father’s parental
rights, we note that we do not vacate and remand the matter with regard to him as this Court

                                                                                   (continued . . .)
                                                 5
grant petitioner an improvement period and hold any further proceedings consistent with the
West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings and Chapter 49 of
the West Virginia Code. The circuit court is hereby ordered to hold the appropriate hearings in
this case within sixty days, and supervised visitation between petitioner and the children is to be
reinstated immediately, with specific instruction to ensure the children’s well-being while in
petitioner’s care. The Clerk is hereby directed to issue the mandate contemporaneously herewith.


                                                                          Vacated and remanded.


ISSUED: November 21, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment

DISSENTING:
Justice Tim Armstead




affirmed the termination of his parental rights by memorandum decision. See In re S.J., A.J.-1,
and A.J.-2, No. 18-0272, 2017 WL 4944964 (W.Va. Oct. 12, 2018)(memorandum decision).



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