                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS         FILED
                                                                                November 21, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
In re D.M., I.M., K.M., and H.M.                                                     OF WEST VIRGINIA 


No. 18-0632 (Kanawha County 17-JA-432, 17-JA-433, 17-JA-434, and 17-JA-435)


                                                          MEMORANDUM DECISION
        Petitioner Mother A.M., by counsel Christopher C. McClung, appeals the Circuit Court
of Kanawha County’s June 12, 2018, order terminating her parental rights to D.M., I.M., K.M.,
and H.M.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”), Elizabeth Davis, filed a response on behalf of the children also in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating her
parental rights without first granting her 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 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.

       Prior to the initiation of the instant proceedings, the DHHR filed a child abuse and
neglect petition against petitioner in August of 2015. The DHHR alleged that petitioner had been
admitted to a psychiatric hospital pursuant to a mental hygiene petition. The children reported
seeing petitioner “snort lines of stuff” and “smoke stuff in a bowl.” Petitioner admitted to using
methamphetamine and cocaine on a daily basis. However, she left the hospital against medical
advice before completing treatment for either her mental health or drug abuse issues. Petitioner
was adjudicated as an abusing parent and granted an improvement period, which she successfully
completed. The children were returned to her care and the petition against her was dismissed.

        In October of 2017, the DHHR filed the instant child abuse and neglect petition against
petitioner. According to the DHHR, it received a referral in June of 2017 that petitioner
inappropriately disciplined the children, used marijuana in their presence, left the youngest child
in soiled diapers for extended periods of time, engaged in domestic violence, and failed to keep
                                                            
              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).


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appropriate food in the house. After completing a walk-through of the house, a Child Protective
Services (“CPS”) worker determined that the house was cluttered, but not a danger to the
children. The CPS worker offered services to petitioner, which she refused. After receiving a
second referral, the CPS worker again responded to petitioner’s home and found it to be in
complete disarray, with clothing and household items blocking exits and the furnace. The home
had no electricity or water and the children were forced to use coolers for food or go to D.M.’s
father’s home to eat. Further, the DHHR alleged that petitioner posted an explicit photograph of
herself on social media, essentially offering to trade sex for methamphetamine. In sum, the
DHHR concluded that petitioner failed to provide for the children and was not sufficiently
motivated or organized to provide for them on an ongoing basis.

       Petitioner stipulated to the allegations contained in the petition in November of 2017, was
adjudicated as an abusing parent, and requested a post-adjudicatory improvement period.
Although the circuit court held the motion in abeyance, petitioner was offered services.

         During the proceedings, then sixteen-year-old H.M. advised the guardian, and eventually
testified, regarding the conditions of abuse in the home. H.M., who lived with her non-abusing
father, reported that her siblings essentially had to care for themselves. She testified that her
youngest sibling was left in soiled diapers and ate moldy food off the floor. H.M. stated that she
came to petitioner’s home on weekends to ensure that her siblings were cared for and noted that
petitioner rarely went to the grocery store. H.M. further reported that she tried to clean
petitioner’s home, but it became more than she could manage. On one occasion, H.M. observed
maggots in the food in petitioner’s refrigerator. Due to a lack of utilities, the children consumed
food stored in picnic coolers, lived without lights, and took cold showers. H.M. feared that
petitioner would revert to the same behavior should the circuit court return the children to her
custody and requested that petitioner’s parental rights to all the children be terminated.

        The circuit court held the dispositional hearing over the course of three days throughout
February and April of 2018. A CPS worker testified that, despite successfully completing an
improvement period in a prior case, the instant petition was filed against petitioner for similar
circumstances and she was again granted services including random drug screens, parenting
classes, and adult life skills classes. Later during the proceedings, psychotherapy sessions
focusing on substance abuse and mental health were also provided to petitioner, as well as a
psychological evaluation. Petitioner’s service provider testified that she was very compliant with
services and seemed insightful and remorseful. However, the evaluating psychologist testified
that petitioner’s prognosis for attaining minimally adequate parenting in the near future was
poor. The psychologist determined that petitioner was extremely defensive and “faking good,”
which rendered certain tests invalid due to her “over the top” responses. The psychologist opined
that petitioner would be unlikely to significantly improve her behavior due to her history of
services and continued minimization of the problem, stating

       any time someone has extensive services and they repeat the problem, we are very
       concerned particularly because it – you know, oftentimes, there is nothing new
       that can be offered. All we can do is give more of the same services that have
       already been ineffective. In [petitioner’s] case, she was not acknowledging a
       significant need for intervention.

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        Finally, petitioner testified that she learned more information during the underlying
proceedings than she had in her first abuse and neglect case. Petitioner stated that she
participated in all services, maintained employment, tested negative during her random drug
screens, and had obtained suitable housing. She believed that she could correct the conditions of
abuse, and asked the circuit court for an improvement period. However, petitioner minimized the
situation and insinuated that H.M.’s testimony was inaccurate because the child was mad at her.
She testified “I’ve been a great mom for [H.M.] There was just some times that I made bad
decisions.”

        After hearing evidence, the circuit court found that H.M.’s testimony was compelling and
credible, and demonstrated persistent and long-term neglect by petitioner. Further, the circuit
court found that, due to petitioner’s poor prognosis for attaining minimally adequate parenting
skills and her repeated case history, the children would be at risk if they were returned to her
care. The circuit court determined that, despite demonstrating that she could care for the children
on a short-term basis, there was no reasonable likelihood that petitioner could correct the
conditions of abuse in the near future and that termination was necessary for the children’s
welfare. It is from the June 12, 2018, dispositional order that petitioner appeals.2

              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
              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 granting her an improvement period designed to address her needs and those of her
children. According to petitioner, she complied with the services granted to her during the

                                                            
              2
         Petitioner’s parental rights to the children were terminated below. The parental rights of
the fathers of D.M., I.M., and K.M. were also terminated below. The permanency plan for these
children is adoption by the maternal grandmother. H.M.’s father is a non-offending parent and
the permanency plan for the child is to remain in his care.
                                                               3
 
underlying proceedings by attending all parenting and adult life skills classes, producing
negative drug screens, maintaining employment, and obtaining suitable housing. As such,
petitioner contends that she demonstrated that she was likely to successfully participate in an
improvement period and the circuit court erred in terminating her parental rights before granting
her the same. We find no merit in petitioner’s argument.

        We have 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.”). We have further 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).

        First, we note that although petitioner was not granted a formal improvement period, she
was offered services throughout the proceedings below. In fact, petitioner concedes as much in
her argument insofar as she lists all of the services with which she complied. These services
included random drug screens, parenting classes, adult life skills classes, psychotherapy sessions,
and a psychological evaluation. However, the circuit court determined that, despite her
compliance with services, petitioner only demonstrated the ability to care for the children for
short periods and was unable to consistently provide for the children on a regular basis. In fact,
the record establishes that petitioner was granted numerous services over the course of her first
abuse and neglect proceedings and was able to comply while under the scrutiny of the court. Yet,
after having the children returned to her care, petitioner returned to the same abusive behavior,
which led to the filing of the instant petition.

        We have previously noted that “it is possible for an individual to show ‘compliance with
specific aspects of the case plan’ while failing ‘to improve . . . [the] overall attitude and approach
to parenting.’” In the Interest of Carlita B., 185 W.Va. 613, 626, 408 S.E.2d 365, 378 (1991)
(quoting W.Va. Dep’t of Human Serv. v. Peggy F., 184 W.Va. 60, 64, 399 S.E.2d 460, 464
(1990)). Moreover, “[i]n making the final disposition in a child abuse and neglect proceeding,
the level of a parent’s compliance with the terms and conditions of an improvement period is just
one factor to be considered. The controlling standard that governs any dispositional decision
remains the best interests of the child.” Syl. Pt. 4, In re B.H., 233 W.Va. 57, 754 S.E.2d 743
(2014). Here, petitioner failed to show what additional services she could have received that
would have helped her address the conditions of abuse. She was granted numerous services
throughout two proceedings, but ultimately failed to demonstrate that she improved her overall
attitude or approach to parenting. Accordingly, we find that petitioner is entitled to no relief in
this regard.

        We further find no error in the circuit court’s decision to terminate petitioner’s parental
rights. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate
parental rights upon findings that there is no reasonable likelihood the conditions of abuse and
neglect can be substantially corrected in the near future and when necessary for the children’s

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welfare. West Virginia Code § 49-4-604(c)(3) sets forth that “no reasonable likelihood that the
conditions of abuse and neglect can be substantially corrected” exists when

       [t]he abusing parent or  parents have 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
       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 record demonstrates that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future. While petitioner
participated with services and maintained employment during these proceedings, she previously
demonstrated the ability to comply with services while under scrutiny only to fall back into
abusive behavior. In fact, the evaluating psychologist opined that petitioner’s prognosis for
attaining minimally adequate parenting skills was poor due to having already received extensive
services throughout the course of two cases. Further, the psychologist opined that petitioner
failed to acknowledge the need for intervention. During the dispositional hearing, petitioner’s
testimony showed that she believed H.M.’s reports were exaggerated because the child was
angry at her and minimized her actions, stating “[t]here was just some times that I made bad
decisions.” As such, despite petitioner’s compliance with services, she failed to demonstrate that
she meaningfully followed through with services or addressed the conditions of abuse. While
petitioner requests more time to comply with services, we have held that “courts are not required
to exhaust every speculative possibility of parental improvement . . . where it appears that the
welfare of the child will be seriously threatened. . . .” Cecil T., 228 W.Va. at 91, 717 S.E.2d at
875, Syl. Pt. 4, in part (quoting Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114
(1980)). Moreover,

               “[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 [now West Virginia Code § 49-4-604] . . . 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) [now West Virginia Code
       § 49-4-604(c)] . . . that conditions of neglect or abuse can be substantially
       corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Accordingly, we find no error.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 12, 2018, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: November 21, 2018



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CONCURRED IN BY:

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

 




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