                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                   FILED
In Re: D.P. & Z.P.                                                            November 25, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
No. 14-0754 (Calhoun County 13-JA-68 & 13-JA-69)                               OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Mother, by counsel Christen M. Justice, appeals the May 20, 2014, order of the
Circuit Court of Calhoun County that terminated her parental rights to eleven-year-old D.P. and
ten-year-old Z.P. The children’s guardian ad litem, Tony Morgan, filed a response on behalf of
the children in support of the circuit court’s order. The Department of Health and Human
Resources (“DHHR”), by counsel Lee A. Niezgoda, also filed a response 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 and in terminating her parental rights without considering
less drastic alternatives to termination.

        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 November of 2013, the DHHR filed an abuse and neglect petition against the
children’s parents. At the time the petition was filed, the children were in their father’s physical
custody while petitioner lived elsewhere. The petition alleged that the children’s father sexually
abused another child who was living in the home where he and the children resided; that, while
in D.P.’s presence, the father once threatened to harm himself with a rifle; that the children were
removed from the parents’ home on prior occasions; and that the children received inadequate
physical care, as exhibited by their chronic head lice and inadequate clothing. The petition
alleged that based on these circumstances, petitioner failed to protect the children and that both
parents failed to provide a safe and stable home for the children.

       The circuit court held an adjudicatory hearing in January of 2014 after several
continuances due to petitioner’s absence, despite notice of these hearings and representation by
counsel. The circuit court found that petitioner was under the influence of drugs during her
testimony. Subsequently, the guardian ad litem requested another continuance on petitioner’s
adjudication, which the circuit court granted.

        In February of 2014, and prior to the scheduled adjudicatory hearing, the DHHR filed an
amended petition with new allegations against petitioner. The amended petition alleged that
petitioner’s mental health history, which included past hospitalizations, affected her ability to
parent and that, due to her serious mental health issues and drug usage, petitioner failed to

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provide a safe and stable home environment for the children. The DHHR further alleged that,
due to aggravated circumstances, it was not required to make reasonable efforts to preserve the
family. Following an adjudicatory hearing on the amended petition, at which petitioner moved
for an improvement period, the circuit court found that petitioner failed to provide any form of
support to her children; that petitioner admitted that if she were to see her children in a
classroom, she would not be able to identify them; that she did not have the ability to parent her
children; that she failed to recognize or acknowledge her children’s birthdays or other holidays
for several years; and that there was no justification for her lack of support to her children. The
circuit court also found that the family had a substantial Child Protective Services (“CPS”)
history, which included allegations of sexual abuse of the children. Based on these findings, the
circuit court found that the parents failed to provide their children with a safe and stable home
environment and that petitioner’s abandonment of her children constituted abuse and neglect.
The circuit court denied petitioner’s motion for an improvement period and set the case for
disposition.

        At the first scheduled dispositional hearing, petitioner appeared intoxicated and the
circuit court granted her counsel’s motion to continue the proceeding. After the final
dispositional hearing, the circuit court entered its order terminating both parents’ parental rights.
With regard to petitioner, the circuit court reiterated many of its findings from the adjudicatory
order. Based on these findings, the circuit court concluded that there was no reasonable
likelihood that the conditions of child abuse and neglect could be substantially corrected in the
foreseeable future, and that termination of her parental rights was necessary for the children’s
welfare. Petitioner now appeals.

       This 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).

        Upon our review of the record, we find no error by the circuit court in denying
petitioner’s motion for an improvement period. “Abandonment of a child by a parent(s)
constitutes compelling circumstances sufficient to justify the denial of an improvement period.”
Syl. Pt. 2, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991). Under West Virginia


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Code § 49-6-12(b), circuit courts have the discretion to grant a post-adjudicatory improvement
period if the subject parent demonstrates by clear and convincing evidence that he or she will
likely fully participate in the improvement period. West Virginia Code § 49-6-5(a)(7)(A) directs
that the DHHR is not required to make reasonable efforts to preserve the family if the circuit
court determines that the parent has subjected the children to aggravated circumstances, such as
abandonment and sexual abuse. The record shows that petitioner admitted that she failed to
support or see her children for several years and that she appeared at two of the hearings under
the influence of drugs and/or alcohol. The record shows that even though DHHR services were
not offered to petitioner, petitioner was provided the opportunity to complete a psychological
evaluation. Petitioner failed to complete the evaluation and failed to appear for her scheduled
appointments with the evaluating psychologist. This evidence demonstrates that petitioner did
not meet her burden in proving that she would fully participate in an improvement period. Under
the circumstances, the DHHR was not required to make reasonable efforts to preserve the family
and the circuit court did not err in denying petitioner’s motion for an improvement period.

        We also find no error in the circuit court’s termination of petitioner’s parental rights.
Under West Virginia Code § 49-6-5(b)(4), a parent’s abandonment of his or her children
constitutes a circumstance in which there is no reasonable likelihood that the conditions of
neglect or abuse can be substantially corrected. The previously discussed evidence contained in
the appellate record supports the circuit court’s termination of petitioner’s parental rights based
on her abandonment of the children and the children’s best interests. Pursuant to West Virginia
Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon such findings.

        For the foregoing reasons, we affirm the circuit court’s May 20, 2014, order terminating
petitioner’s parental rights to D.P. and Z.P.

                                                                                        Affirmed.

ISSUED: November 25, 2014

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




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