                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS
                                                                                    FILED
In re C.G.-1 and C.G.-2                                                         March 12, 2018
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
No. 17-0965 (Hampshire County 17-JA-8 and 9)
                                                                                    OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
        Petitioner Mother D.G., by counsel Jeremy B. Cooper, appeals the Circuit Court of
Hampshire County’s September 21, 2017, order terminating her parental rights to C.G.-1 and
C.G.-2.1 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”), Marla Zelene Harman, filed a response on behalf of the children in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying her
motion for an improvement period and in terminating her parental rights.

        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 February of 2017, the DHHR filed a petition alleging that both children suffered
unexplained injuries while in the care of petitioner and her boyfriend, D.K. C.G.-1 suffered
severe bruising to his genitals and C.G.-2 suffered unexplained burns on her wrist and leg, as
well as bruising to her ear and jawline. Several hours passed after the discovery of C.G.-1’s
severe bruising before he was taken to a hospital. While being examined, C.G.-1 stated that
“[D.K.] hit me.” Petitioner could not explain the injuries but asserted that C.G.-1 would sleep
walk and must have suffered the injuries in his sleep. Additionally, the DHHR alleged a previous
incident in November of 2016, when the babysitter brought C.G.-2 to the hospital after noticing
she was favoring one leg. Hospital staff concluded that C.G.-2 had suffered a spiral fracture to
her leg, but did not conclude that the injury was the result of abuse or neglect. Petitioner could
                                                            
              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 the children share the same initials, we
refer to them as C.G.-1 and C.G.-2 throughout this memorandum decision.




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also not explain this earlier injury. Petitioner waived her preliminary hearing on February 9,
2017.

        The circuit court held an adjudicatory hearing, and the medical personnel who conducted
the examinations testified that the trauma sustained by C.G.-1 was likely non-accidental.
Additionally, the results from forensic interviews were admitted in which L.K, D.K’s three-year-
old son, accused D.K. of hitting C.G.-1. L.K stated that D.K. hit C.G.-1, threw C.G.-1 against the
wall, and “bumped [C.G.-1]’s head on the floor.” Petitioner testified and admitted that she failed
to supervise her children, but did not have an explanation as to how the children suffered their
injuries. Petitioner noticed C.G.-1’s genitals were bruised upon changing C.G.-1’s diaper in the
morning but did not notice any bruising before putting C.G.-1 to bed the night before. Petitioner
admitted that she, D.K., and the children were the only people in the home on the night the injury
occurred, but she did not suspect D.K. was the perpetrator of the abuse. Petitioner consistently
stated that she did not see D.K. abuse her son. Petitioner also testified that she did not hear C.G.-
1 cry out or scream on the night the injuries occurred. However, medical personnel testified that
the child would have likely made significant noise based on the severity of the bruising. With
regard to C.G.-2, medical personnel testified that the spiral fracture could have been accidental
trauma, but petitioner offered no explanation as to a reasonable cause. Further, petitioner’s
explanation for C.G.-2’s burns was deemed incredible by medical personnel, and, therefore, the
burns were also deemed likely non-accidental. Ultimately, the circuit court adjudicated petitioner
and found that neither she nor D.K. offered any reasonable explanation for the children’s
significant injuries. It also found that petitioner and D.K. were the only adults in the home when
the children sustained those injuries. Petitioner moved for a post-adjudicatory improvement
period, and the circuit court deferred ruling on that motion.

        In May of 2017, the circuit court held a dispositional hearing, during which the DHHR
moved for the termination of petitioner’s parental rights. The circuit court ordered a parental
fitness and psychological examination for petitioner and continued the dispositional hearing. The
circuit court also deferred ruling on petitioner’s motion for an improvement period.

        At the continued dispositional hearing, the circuit court reviewed the psychologist’s
evaluation and found petitioner still did not accept responsibility for her children’s injuries.
Notably, when speaking with the psychologist, petitioner characterized the injuries as
“unexplained.” Ultimately, the circuit court denied petitioner’s motion for a post-adjudicatory
improvement period and continued the dispositional hearing. Further, the circuit court ordered
that the psychologist prepare a supplemental evaluation prior to the next dispositional hearing
and be given further information regarding the court’s previous findings of abuse and neglect and
the medical records of the children.

        In August of 2017, the circuit court held a final dispositional hearing and the petitioner
moved for a post-dispositional improvement period. The psychologist testified that she met with
petitioner a second time in preparation for the supplemental evaluation and that petitioner
appeared to have had an “epiphany” with regard to her children’s injuries. Petitioner now
believed it was “likely” that D.K. injured her children, but that the babysitter also could have
perpetrated the abuse. The psychologist testified that she believed petitioner could be successful
in an improvement period and that her youth and inexperience contributed to her lack of insight.

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However, the psychologist was unaware of previous court findings, such as C.G.-1’s likely pain-
induced outburst upon receiving the bruising, a delay in treatment for C.G.-1, and petitioner’s
continued involvement with D.K. When confrontation with those findings, the psychologist
indicated that those factors concerned her. Additionally, the grandfather testified that he had seen
petitioner and D.K. together at least twice since the adjudicatory hearing. Petitioner refused to
testify, even after the circuit court explained that a negative inference could be drawn from her
refusal to testify. The circuit court also took note of two supervised visitations in which C.G.-1
referenced D.K. and stated “[D.K.] can’t hit me” and then acted out and became aggressive.

        Thereafter, the circuit court found that petitioner’s “failure or refusal to testify during the
disposition hearing can certainly be determined as affirmative evidence of culpability” and that
petitioner’s “silence further deprives this [c]ourt of what is necessary” to clearly and convincing
prove that petitioner was willing and able to participate and follow-through with an improvement
period. Further, the circuit court found that petitioner’s “epiphany” was incredible because “she
reiterated that the abuser could be the babysitter; the evidence presented clearly does not support
such a position or reality.” The circuit found the conditions and circumstances causing the
injuries to the children were rendered uncorrectable without an acknowledgment of the real
problems and issues. The circuit court also found that there was no reasonable likelihood the
conditions of abuse and neglect could be substantially corrected in the near future and that the
children’s safety could not be ensured in their mother’s custody. Ultimately, the circuit court
denied petitioner’s motion for a post-dispositional improvement period, terminated her parental
rights, and granted post-termination visitation in its September 21, 2017, order.2 Petitioner
appeals that order.

              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).

                                                            
              2
         The children’s non-abusing father retained his parental rights, although he currently does
not exercise custody and, according to the parties, plans to relinquish his rights to allow his
father to adopt the children. The children are currently placed in the grandfather’s home. The
permanency plan is adoption therein.



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Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, this Court
finds no error in the proceedings below.

       On appeal, petitioner argues that the circuit court erred in terminating her parental rights
without first granting her an improvement period. Petitioner argues that the evidence shows she
made progress and gained insight throughout the proceedings, and that she could be successful if
granted an improvement period. We disagree.

        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”).
We have also held that a parent’s “entitlement to an improvement period is conditioned upon the
ability of the [parent] to demonstrate ‘by clear and convincing evidence, that the [parent] is likely
to fully participate in the improvement period. . . .’” In re: Charity H., 215 W.Va. 208, 215, 599
S.E.2d 631, 638 (2004). Further, the circuit court has discretion to deny an improvement period
when no improvement is likely. In re Tonjia M., 212 W.Va. 443, 448, 573 S.E.2d 354, 359
(2002).

         First, the circuit court did not err in denying petitioner’s request for an improvement
period because the court has the discretion to deny an improvement period when no
improvement is likely. Petitioner testified that she did not see the injuries before C.G.-1 went to
bed, but noticed them immediately upon changing his diaper the next day. The only individuals
with access to C.G.-1 that night were herself, D.K., and the other two children. Petitioner was
confronted with photographs and medical testimony explaining the severity of the injuries and
the likelihood that those injuries were non-accidental. Further, L.K. apparently witnessed D.K.
hitting C.G.-1 on some occasions and C.G.-1 stated “[D.K.] can’t hit me” during supervised
visitation with the mother. Still, petitioner refused to conclude that D.K. abused her children.
Petitioner argues that she gained insight during the proceedings, which showed that improvement
was possible; however, she continued to assert that the babysitter may have committed the abuse,
despite the fact that the evidence did not support such an assertion. Additionally, the record
shows that petitioner continued to see D.K. throughout the proceedings. “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 Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013). Because of petitioner’s failure
to acknowledge the conditions of abuse and neglect, we find no error in the circuit court’s ruling.

         Petitioner further argues that she presented clear and convincing evidence that she would
participate in an improvement period and argues that the circuit court erred in taking a “strong
negative inference” from petitioner’s refusal to testify. Petitioner argues that the psychologist
testified petitioner could benefit from an improvement period. Yet, the psychologist was unaware
of key factors, such as petitioner’s continued interaction with D.K., the delay in C.G.-1’s
treatment, and that petitioner never mentioned hearing C.G.-1’s likely cries of pain. These
factors support the conclusion that petitioner failed to acknowledge the basic truth of the abuse

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or neglect and, thus, undermined the psychologist’s opinion. Further, we have previously held
that, in an abuse and neglect proceeding, an individual’s silence may be used as affirmative
evidence of that person’s culpability. Syl. Pt. 2, In re K.P., 235 W.Va. 221, 772 S.E.2d 914
(2015). Further, the circuit court explained to petitioner that her refusal would draw a negative
inference, yet she still refused to testify. The circuit court properly considered her refusal as
evidence of her culpability and as a protective instinct for either D.K. or herself, rather than for
her children. Accordingly, we find no error in the circuit court’s denial of petitioner’s motions
for an improvement period.

        Second, the circuit court properly terminated petitioner’s parental rights because she
failed to identify her children’s abuser. West Virginia Code §49-4-604(b)(6) provides that a
circuit court may terminate a parent’s parental rights when it finds that “there is no reasonable
likelihood that conditions of neglect or abuse can be substantially corrected in the near future”
and that termination is “necessary for the welfare of the child.” Further,

               “[p]arental rights may be terminated where there is clear and convincing
       evidence that the infant child has suffered extensive physical abuse while in the
       custody of his or her parents, and there is no reasonable likelihood that the
       conditions of abuse can be substantially corrected because the perpetrator of the
       abuse has not been identified and the parents, even in the face of knowledge of the
       abuse, have taken no action to identify the abuser.” Syllabus Point 3, In re Jeffrey
       R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993).
Syl. Pt. 4, In re Harley C., 203 W.Va. 594, 509 S.E.2d 875 (1998). Petitioner’s children were
subjected to multiple non-accidental injuries while in petitioner’s care. C.G.-1 suffered severe
bruising to his genitals; C.G.-2 suffered a spiral fracture in her leg, multiple burns, and bruising
on her face. Petitioner offered no credible explanation for the injuries. Further, at the final
hearing, petitioner continued to assert that the abuse could have been perpetrated by the
babysitter, who had no access to C.G.-1 when the bruising occurred. It is clear from the record
that petitioner never came to a definitive conclusion of who committed the abuse, nor did she
take any action to identify the abuser. The circuit court could not ensure the safety of the children
while they were in petitioner’s care. Therefore, the circuit court did not err in finding there was
no reasonable likelihood that petitioner could substantially correct the conditions of neglect or
abuse or that termination was necessary for the children’s welfare. Accordingly, we find no error
in the termination of petitioner’s parental rights.
        Lastly, this Court reminds the circuit court of its duty to establish permanency for the
children. On appeal, respondents proffered that the biological father of C.G.-1 and C.G.-2, Z.G.,
would relinquish his parental rights pending the result of this appeal. Accordingly, we direct the
circuit court to hold a hearing that addresses Z.G.’s parental rights and determine the most
appropriate permanency plan for the children. Rule 39(b) of the Rules of Procedure for Child
Abuse and Neglect Proceedings requires:

       At least once every three months until permanent placement is achieved as
       defined in Rule 6, the court shall conduct a permanent placement review
       conference, requiring the multidisciplinary treatment team to attend and report as


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       to progress and development in the case, for the purpose of reviewing the progress
       in the permanent placement of the child.

        Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules
of Procedure for Child Abuse and Neglect Proceedings to find permanent placement for children
within twelve months of the date of the disposition order. As this Court has stated,

               [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
       placement of an abused and neglected child following the final dispositional order
       must be strictly followed except in the most extraordinary circumstances which
       are fully substantiated in the record.

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that

               [i]n determining the appropriate permanent out-of-home placement of a
       child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4-
       604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
       home for the child and shall consider other placement alternatives, including
       permanent foster care, only where the court finds that adoption would not provide
       custody, care, commitment, nurturing and discipline consistent with the child’s
       best interests or where a suitable adoptive home can not be found.

Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is 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, we find no error in the decision of the circuit court, and its
September 21, 2017, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: March 12, 2018


CONCURRED IN BY:

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



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