                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

                                                                                 FILED
In re: B.P.-1, B.P.-2, and E.P.                                              October 23, 2017
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
No. 17-0495 (Lewis County 16-JA-19, 16-JA-20, & 16-JA-21)                        OF WEST VIRGINIA




                              MEMORANDUM DECISION
         Petitioner Mother A.P., by counsel Melissa T. Roman, appeals the Circuit Court of Lewis
County’s May 5, 2017, order terminating her parental rights to B.P.-1, B.P.-2, and E.P.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”), Bryan S. Hinkle, 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 adjudicating her as an
abusing parent and in denying her motions for an improvement period and post-termination
visitation.

        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 September of 2016, the DHHR filed an abuse and neglect petition against petitioner
alleging that she left her children in the care of her mother and her mother’s boyfriend, both of
whom petitioner had previously reported as sexually abusing the children. The petition further
alleged that petitioner had an extensive domestic violence history and repeated incarcerations
resulting from multiple domestic violence incidents. Petitioner was incarcerated at the time of the
petition’s filing as a result of those incidents.

        In November of 2016, the circuit court held an adjudicatory hearing wherein a DHHR
worker testified that petitioner had a history of drug abuse and domestic violence. The worker
also testified that petitioner engaged in domestic violence in the children’s presence and had
been incarcerated five times since 2014 for domestic battery, domestic assault, and malicious

       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). Further, because two of the children share the same initials
we will refer to them as B.P.-1 and B.P.-2 throughout this memorandum decision.


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wounding. Based on the evidence presented, the circuit court adjudicated petitioner as an abusing
parent and found that she engaged in domestic violence in the children’s presence, stabbed her
mother’s boyfriend in the children’s presence, threatened to set her mother’s oxygen tank on fire,
left the children with her mother and her mother’s boyfriend after reporting that they sexually
abused the children, and had repeated incarcerations.

        In January of 2017, the DHHR filed a motion to terminate petitioner’s parental rights.
Petitioner then moved for a post-adjudicatory improvement period. Along with that motion,
petitioner submitted to a psychological evaluation in which the evaluator found that petitioner
suffered from “child neglect,” bipolar disorder, and borderline intellectual functioning. The
evaluator noted that petitioner reported a drug abuse history and use of methamphetamine,
opiates, and Flakka.2 The evaluator determined that petitioner was mentally capable of
participating in the terms of an improvement period, but noted that her lack of veracity during
the evaluation and her long history of drug abuse were “concerning.” In March of 2017,
petitioner was arrested for the possession of methamphetamine after she was investigated for
another domestic violence incident.

        In April of 2017, the circuit court held a dispositional hearing wherein it addressed
petitioner’s motion for an improvement period and the DHHR’s motion to terminate her parental
rights. The circuit court found that petitioner failed to prove that she was likely to fully
participate in an improvement period and that there was no reasonable likelihood she could
substantially correct the conditions of abuse and neglect. The circuit court terminated her
parental rights to the children, by order dated May 5, 2017. It is from that 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). Upon our review, the Court finds
no error in the proceedings below.



       2
           Flakka is a synthetic drug similar to bath salts.
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       On appeal, petitioner argues that the “testimony was bereft of any evidence of harm to the
children” at the time of the petition’s filing and that there was not sufficient evidence to make the
finding by clear and convincing evidence. This Court does not agree. West Virginia Code § 49­
4-601

       requires the [DHHR], in a child abuse or neglect case, to prove ‘conditions
       existing at the time of the filing of the petition . . . by clear and convincing
       [evidence].’ The statute, however, does not specify any particular manner or mode
       of testimony or evidence by which the [DHHR] is obligated to meet this burden.

Syl. Pt. 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981). We have described the
“clear and convincing” standard as one in which

       the evidence in an abuse and neglect case does not have to satisfy the stringent
       standard of beyond a reasonable doubt; the evidence must establish abuse by clear
       and convincing evidence. This Court has explained that “‘clear and convincing’ is
       the measure or degree of proof that will produce in the mind of the factfinder a
       firm belief or conviction as to the allegations sought to be established.” Brown v.
       Gobble, 196 W.Va. 559, 564, 474 S.E.2d 489, 494 (1996)

In re F.S. and Z.S., 233 W.Va. 538, 546, 759 S.E.2d 769, 777 (2014). The evidence below was
sufficient to establish that petitioner abused her children. Here, the DHHR clearly established
that petitioner’s substance abuse, history of domestic violence, and resulting incarcerations led
her to leave the children in her mother’s care, despite petitioner’s report that her mother and her
mother’s boyfriend sexually abused the children, as alleged in the abuse and neglect petition.
During the proceedings below, petitioner admitted to a history of substance abuse and to the use
of methamphetamine, opiates, and Flakka, and further admitted that she was arrested for the
possession of methamphetamine after she was investigated for another domestic violence
incident. Further, the circuit court heard testimony that petitioner stabbed her mother’s
boyfriend, threatened to set her mother’s oxygen tank on fire, and engaged in other incidents of
domestic violence in the children’s presence. For these reasons, we find no error in the circuit
court’s adjudication of petitioner as an abusing parent.

        Next, petitioner argues that the circuit court erred in not granting her a post-adjudicatory
improvement period prior to terminating her parental rights. In support of her argument,
petitioner claims that she had taken steps to correct her parenting deficiencies. However, West
Virginia Code § 49-4-610(2)(B) requires that the parent “demonstrate[] by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period . . .” Further,
we have often noted 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, 778 S.E.2d 338 (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”).




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        Here, petitioner failed to present any evidence to the circuit court that she would be likely
to fully participate in a post-adjudicatory improvement period. Although petitioner’s
psychological evaluation determined that she was mentally capable of participating in the terms
of an improvement period, it noted that her lack of veracity during the evaluation and her drug
abuse history were a concern. Further, after petitioner filed her motion for an improvement
period, she was arrested for methamphetamine possession following an investigation for another
domestic violence incident. Petitioner’s history of drug abuse and repeated engagement in
domestic violence indicates that she would be unlikely to fully participate in an improvement
period or remedy the conditions of abuse in the home. Accordingly, we find no error below.

        Finally, the Court finds no error in the circuit court’s denial of petitioner’s motion for
post-termination visitation. According to petitioner, because she expressed love for her children,
the circuit court erred in denying her post-termination visitation. Again, we do not agree. We
have previously held as follows:

       [w]hen parental rights are terminated due to neglect or abuse, the circuit court
       may nevertheless in appropriate cases consider whether continued visitation or
       other contact with the abusing parent is in the best interest of the child. Among
       other things, the circuit court should consider whether a close emotional bond has
       been established between parent and child and the child’s wishes, if he or she is of
       appropriate maturity to make such request. The evidence must indicate that such
       visitation or continued contact would not be detrimental to the child’s well being
       and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
       446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002). The record on appeal is
devoid of any evidence tending to show that continued visitation with petitioner would be
beneficial to the children’s wellbeing. As outlined above, petitioner took no steps to correct the
conditions of abuse and neglect in the home and continued to abuse drugs and engage in
domestic violence. Based upon the evidence, it is clear that continued contact with petitioner
would not be in the children’s best interests. As such, we find no error in the circuit court’s
denial of post-termination visitation below.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 5, 2017, order is hereby affirmed.
                                                                                     Affirmed.

ISSUED: October 23, 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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