                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: K.R., B.R., and J.M.                                                        FILED
                                                                              February 21, 2017
No. 16-0611 (Mingo County 16-JA-4, 16-JA-5, & 16-JA-6)                           RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Mother P.M., by counsel Jane Moran, appeals the Circuit Court of Mingo
County’s April 20, 2016, order terminating her parental rights to two-year-old B.R., five-year­
old K.R., and fifteen-year-old J.C.1 The West Virginia Department of Health and Human
Resources (“DHHR”), by counsel S. L. Evans, filed its response in support of the circuit court’s
order. The guardian ad litem, Susan J. Van Zant, filed a response on behalf of the children also in
support of the circuit court’s order. Petitioner filed a reply. On appeal, petitioner argues that the
circuit court erred 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 January of 2016, the DHHR filed an abuse and neglect petition alleging that K.R.’s
biological father touched her between the legs.2 K.R. later disclosed the sexual abuse to a DHHR
worker. According to the petition, the investigating DHHR worker noted that petitioner had a
black eye. Petitioner initially reported to the DHHR that she had gotten into a fight with an
unidentified woman, that the woman’s husband held her down, and that the couple physically
assaulted her in front of the children. Petitioner later told a DHHR worker that, about a month
prior to the start of the investigation, “everyone [petitioner, I.M., K.M., and K.M.’s wife] was
fighting each other and the kids were present at that time also.” The petition also alleged that, on
January 6, 2016, petitioner reported to her probation officer, who stated that petitioner appeared


       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
        At the time, K.R. lived in a home with petitioner, K.M., K.R.’s father, and petitioner’s
boyfriend, I.M., among other adult individuals. K.M. is K.R.’s biological father.


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to be under the influence of “something” when she arrived at his office.3 According to the
petition, the probation officer stated that petitioner admitted to taking a “nerve pill” prior to
reporting to his office but was unable to produce a prescription for any medication. Petitioner
was drug tested and tested positive for drugs. The following day, petitioner called the Mingo
County home confinement office and reported to her probation officer that she was driving to the
Child Advocacy Center (“CAC”) for K.R.’s forensic interview. Because petitioner sounded
intoxicated, the probation officer contacted the West Virginia State Police and the DHHR. The
probation officer, a DHHR worker, and a West Virginia State trooper confronted petitioner at the
CAC office. The trio observed that petitioner appeared intoxicated and K.R. was unrestrained in
the vehicle. Following a field sobriety test, petitioner was arrested and charged with child neglect
and driving while under the influence of drugs or alcohol. The petition further alleged that K.R.
had a lice infestation. The DHHR took emergency custody of the children following petitioner’s
arrest.

        In January of 2016, following the children’s removal from petitioner’s home, the circuit
court held a preliminary hearing and heard the testimony of a DHHR worker familiar with
petitioner and the children. The worker testified that K.R disclosed sexual abuse in her CAC
forensic interview and was referred to therapy. The worker also testified that petitioner was
informed of previous abuse allegations against K.R.’s father and also of the substantiation of
sexual abuse by K.R.’s father against his other biological children in 2011. According to the
worker, petitioner was aware of the risk of harm to the children but permitted K.R.’s father to
remain in the home with the children. The worker further testified that there was a previous
abuse and neglect petition filed against petitioner for driving while under the influence of drugs
or alcohol with K.R. in the car. According to the worker, petitioner received services and the
prior case was closed. A DHHR supervisor testified that petitioner stated that she had not sought
a protective order against K.R.’s father and that petitioner did not believe that K.R.’s father
abused her. The supervisor also testified that petitioner knew that K.R.’s father was not supposed
to be around K.R. or any other children but that petitioner allowed him to live in her home with
the children. Petitioner’s probation officer testified that petitioner’s probation was revoked
because she tested positive for Benzodiazepines and barbiturates.

       At the close of the evidence, the circuit court found that there was domestic violence in
the home, that petitioner was aware of prior sexual abuse allegations against K.R.’s father, and
that petitioner failed to protect the children from harm. The circuit court found that
circumstances at the time the petition was filed constituted abuse and neglect and probable cause
to remove the children from petitioner’s custody.

        On February 10, 2016, petitioner pled guilty to gross child neglect creating a substantial
risk of injury or death. She was sentenced to a term of incarceration of one to five years and has
been incarcerated since her guilty plea and sentencing. That same month, the circuit court held
an adjudicatory hearing. Although petitioner was incarcerated, she appeared in person and by
counsel. Petitioner did not present any additional evidence at the adjudicatory hearing. The
circuit court found, by clear and convincing evidence, that the children were abused and
neglected and that petitioner failed to protect them. Petitioner orally moved the circuit court for a

       3
           Petitioner was on probation for a 2014 child neglect conviction.
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post-adjudicatory improvement period, to which the DHHR objected. Petitioner also moved for
visitation, to which the guardian objected. The circuit court denied petitioner’s motions based on
her incarceration and its concerns that visitation in a prison setting might be harmful to the
children.

        In March of 2016, the circuit court held a dispositional hearing. The circuit court heard
the testimony of a DHHR worker who recommended the termination of petitioner’s parental
rights. The worker testified that the DHHR’s recommendation was based on petitioner’s failure
to protect the children from sexual abuse and driving with K.R. in the vehicle while under the
influence of drugs or alcohol. The worker also testified that petitioner was currently incarcerated
on a second criminal child neglect conviction, previously received services, and that her current
incarceration prevented the DHHR from providing additional services. Following the close of the
evidence, the circuit court found that petitioner was presently unwilling or unable to correct the
conditions that led to the petition’s filing, that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected in the near future and that
termination of petitioner’s parental rights was in the children’s best interests. The circuit court
terminated petitioner’s parental rights by order entered on April 20, 2016. It is from this order
that petitioner appeals.

       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).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

        To begin, inasmuch as petitioner argues that she was denied services without
justification, we disagree. She contends that she is entitled to access all of the rehabilitative
services available to others in her situation. According to the record on appeal, petitioner was
provided with services. The circuit court also ordered that petitioner undergo a psychological
evaluation to determine what reunification services would be appropriate. However, due to
petitioner’s incarceration, the DHHR determined that she could not participate in services
beyond the evaluation while incarcerated. Thus, petitioner was not denied services; rather she
was provided with the services available to her while incarcerated.



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         Petitioner further argues that she was denied various procedural protections because the
circuit court denied her motion for an improvement period. 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) (stating that “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) (holding that “[i]t 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 respondent 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).

        Here, it is clear from the record that petitioner failed to demonstrate her ability to fully
participate in an improvement period. The circuit court was presented with evidence that
petitioner failed to correct the conditions that led to the filing of the second abuse and neglect
petition. Indeed, petitioner was aware that K.R.’s father sexually abused his other biological
children and yet she allowed him to live in the same home as the children. Petitioner stated that
she did not believe that K.R.’s father sexually abused her despite the substantiation of sexual
abuse to the contrary. “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) (quoting In re: Charity H., 215 W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). As
such, it is clear that petitioner failed to establish that she was likely to fully participate in a post­
adjudicatory improvement period.

        Petitioner also argues that the circuit court erroneously terminated her parental rights
based solely on her incarceration at the time of the dispositional hearing. This is not the case.
Beyond her incarceration, the circuit court based termination upon petitioner’s extensive history
of endangering the children, incarceration, and substance abuse. Pursuant to West Virginia Code
§ 49-4-604(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 welfare. West Virginia Code § 49-4-604(c)(3)
provides that no reasonable likelihood that the conditions of abuse or neglect can be substantially
corrected exists when “[t]he abusing parent . . . ha[s] not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts[.]” We have also held that
“[t]ermination . . . may be employed without the use of intervening less restrictive alternatives
when it is found that there is no reasonable likelihood . . . that conditions of neglect or abuse can
be substantially corrected.” Syl. Pt. 7, in part, In re Katie S., 198 W.Va. at 89, 479 S.E.2d at 600
(1996). Further, we have explained that incarceration may support the termination of parental
rights based on the analysis of a series of factors. See In re Cecil T., 228 W.Va. 89, 717 S.E.2d
873 (holding that “[a]lthough we have not adopted a per se rule regarding the impact
incarceration has on a termination of parental rights decision, we have likewise not said that the
facts surrounding a parent’s incarceration may never form the basis for terminating parental
rights.”). With regard to incarceration, we have held that



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        [w]hen no factors and circumstances other than incarceration are raised at a
        disposition hearing in a child abuse and neglect proceeding with regard to a
        parent’s ability to remedy the condition of abuse and neglect in the near future,
        the circuit court shall evaluate whether the best interests of a child are served by
        terminating the rights of the biological parent in light of the evidence before it.
        This would necessarily include but not be limited to consideration of the nature of
        the offense for which the parent is incarcerated, the terms of the confinement, and
        the length of the incarceration in light of the abused or neglected child’s best
        interests and paramount need for permanency, security, stability and continuity.

Id. at 91, 717 S.E.2d at 875, Syl. Pt. 3.

        In the present case, the circuit court was free to consider petitioner’s incarceration as a
basis for the termination of petitioner’s parental rights. The circuit court based its ruling on
petitioner’s incarceration and additional factors. In this case, prior to her termination, petitioner
took no steps to protect her children from K.R.’s sexually abusive father and allowed him to live
in the same home as the children. Petitioner also had a long history of substance abuse and child
endangerment, none of which had been remedied since the filing of the previous petition.
Notably, petitioner was previously arrested and charged with driving while under the influence
of drugs or alcohol with a child in the vehicle. She was placed on probation and the DHHR
opened an abuse and neglect case and provided her with services. Given the circumstances
presented, there was no reasonable likelihood that the conditions of neglect could be
substantially corrected in the near future. Furthermore, the children require stability and
permanency. Thus, as the circuit court also found, termination of her parental rights was
necessary for the children’s well-being. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit
courts are directed to terminate parental rights upon such findings. For these reasons, we find no
error in the circuit court’s order terminating petitioner’s parental rights.

        For the foregoing reasons, we hereby affirm the circuit court’s April 20, 2016, order.

                                                                                          Affirmed.

ISSUED: February 21, 2017

CONCURRED IN BY:

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




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