                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                     FILED
In re J.Y. and M.Y.
                                                                                 October 12, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0252 (Kanawha County 17-JA-306 and 17-JA-307)                             SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Mother C.Y., by counsel Kenneth Starcher, appeals the Circuit Court of
Kanawha County’s February 14, 2018, order terminating her custodial rights to J.Y. and M.Y.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Brandolyn N. Felton-Ernest, filed a response in support of the circuit court’s order. The guardian
ad litem (“guardian”), Christopher C. McClung, 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
denying her an improvement period.2

        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 July of 2017, the DHHR filed a child abuse and neglect petition against petitioner and
the father, alleging that they manufactured methamphetamine in the basement of petitioner’s
father’s home, where they were living. The referral indicated that marijuana plants were also
growing in the home and that drug paraphernalia, including needles, was scattered throughout
the area. The DHHR alleged that petitioner’s father kicked the children’s father out of the home.
Although petitioner and the children were permitted to stay, she chose to leave with the father.
Shortly thereafter, petitioner’s sister contacted Child Protective Services (“CPS”) and stated that
petitioner left the children in her care and had not returned for them. A CPS worker spoke with
the children, and then eight-year-old J.Y. reported that they did not have a home. The child
revealed that her parents abused drugs through the use of a bong, light bulbs, and needles.
Petitioner denied that the children had ever been present around drug use. However, she admitted
                                                            
              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).
              2
        Petitioner does not raise a specific assignment of error with regard to termination of her
custodial rights.
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that she smoked marijuana and that she “tried meth one time.” In sum, the DHHR alleged that
petitioner could not provide a safe and stable home for the children; had a substance abuse
problem; and failed to provide the children with the necessary food, clothing, supervision,
housing, and financial support.

        The circuit court held an adjudicatory hearing in October of 2017, wherein petitioner
stipulated that she had a substance abuse problem which impacted her ability to properly parent
the children. The circuit court accepted petitioner’s stipulation and adjudicated her as an abusing
parent. While petitioner was not granted a formal improvement period, services were provided.

        The circuit court held an initial dispositional hearing in November of 2017, which was
continued due to petitioner’s nonappearance. In December of 2017, a multidisciplinary team
(“MDT”) meeting was held. Petitioner failed to attend and the parties recommended that her
parental rights be terminated due to her failure to comply with services. The circuit court held a
final dispositional hearing in January of 2018. Petitioner did not appear in person, but the circuit
court granted petitioner’s counsel’s request to allow petitioner to monitor the hearing via
telephone. A CPS worker testified that petitioner was granted services but failed to fully comply
throughout the proceedings. Petitioner was ordered to provide drug screens but failed to
participate, only providing screens after hearings that she attended. On at least two occasions
when she did provide a drug screen, she tested positive for methamphetamine. The service
provider testified that petitioner failed to acknowledge that she had a substance abuse problem.
Further, petitioner did not have stable housing or employment. After hearing evidence, the circuit
court found that petitioner failed to acknowledge her substantial substance abuse problem, failed
to participate in services, lacked suitable housing, and was unemployed. As such, the circuit
court found that there was no reasonable likelihood that petitioner could correct the conditions of
abuse in the near future and that termination of her custodial rights to the children was in their
best interests. It is from the February 14, 2018, order terminating her custodial rights 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
              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

                                                            
              3
         The parents’ custodial rights were terminated below. The children were placed in a
foster home with a permanency plan of guardianship therein.
                                                               2

 
       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 denying her an improvement
period. Specifically, petitioner argues that she demonstrated she would be likely to participate in
an improvement period because she took steps to establish an independent home, acknowledged
her substance abuse problem, provided some negative drug screens, and had a bond with her
children. We disagree. 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).

        Petitioner failed to demonstrate that she was likely to participate in an improvement
period. The record indicates that, although petitioner was not granted a formal improvement
period, she received services such as drug screens, assistance with transportation, a
psychological evaluation, and supervised visitation. Petitioner failed to satisfactorily comply
with the services and failed to appear for both of the dispositional hearings and the MDT
meeting, despite having notice of the same and having been provided a bus pass. Testimony at
the dispositional hearing established that petitioner failed to call in to receive information on her
random drug screens and only provided drug screens when she appeared at the courthouse for
hearings. At least two of the screens provided were positive for methamphetamine. The CPS
worker testified that petitioner failed to acknowledge the extent of her substance abuse problem
and did not have housing or employment. Further, petitioner also failed to adequately participate
in supervised visitation with the children and was observed to be on her cellphone frequently or
in the bathroom for long periods of time. While the circuit court granted petitioner the
opportunity to rectify the conditions of abuse and neglect through her participation in services,
she failed to participate in these services and, thus, failed to demonstrate that she would fully
comply with an improvement period. Accordingly, we find that the circuit court did not err in
denying her request for the same.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 14, 2018, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: October 12, 2018




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CONCURRED IN BY:

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

Justice Allen H. Loughry II, suspended and therefore not participating
 




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