                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS
                                                                                   FILED
In re K.C. and J.C.                                                            November 8, 2019
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
No. 19-0301 (Webster County 2018-JA-53 and 2018-JA-54)                               OF WEST VIRGINIA




                               MEMORANDUM DECISION


        Petitioner Mother B.C., by counsel Jared S. Frame, appeals the Circuit Court of Webster
County’s March 17, 2019, order terminating her custodial rights to K.C. and J.C.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 and a supplemental appendix. The guardian ad litem
(“guardian”), Mary Elizabeth Snead, 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
custodial rights without first granting her an improvement period. Petitioner also argues that the
circuit court erred in finding that she would not comply with an improvement period without first
granting her the same.

       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 underlying proceedings, petitioner had a history of Child
Protective Services (“CPS”) involvement due to the deplorable condition of her home. In
November of 2015, a CPS case was opened in order to provide services to assist petitioner with
maintaining a clean home. This case was closed in March of 2016. However, in July of 2017, the
children were removed from petitioner’s home because it had, once again, become unclean,
unsanitary, unsafe, and uninhabitable for the children. The DHHR filed a child abuse and neglect
petition and, during those proceedings, petitioner was adjudicated as an abusing parent. In April
of 2018, the circuit court dismissed the case and returned the children to petitioner’s care after
finding that she had successfully completed her improvement period.

       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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        In October of 2018, the DHHR filed the instant child abuse and neglect petition, alleging
that petitioner’s home was again unclean. Specifically, the DHHR alleged that J.C., who was
thirteen years old at the time, reported to a CPS worker that he was forced to move to his
grandmother’s home due to the fact that petitioner kept a cat in the home despite his severe
allergies.2 The child also reported that petitioner’s home was always “dirty and smelly.” Upon
visiting the home, CPS workers discovered extreme clutter, including dirty dishes and laundry,
scattered throughout the home, as well as piles of garbage on the front porch. Petitioner was
informed that she needed to clean the residence and that someone would be back to assess the
situation. However, the conditions of the home remained the same and, rather than accepting
responsibility, petitioner blamed Webster County for failing to remedy her suspended garbage
pickup services. The DHHR concluded that petitioner failed to maintain a suitable home for the
children despite having been provided services to remedy the same problem on two separate
occasions. Petitioner waived her preliminary hearing.

        The circuit court held an adjudicatory hearing in November of 2018. The circuit court took
judicial notice of the prior case wherein petitioner was adjudicated as an abusing parent, and the
DHHR presented three witnesses who testified regarding the allegations in the instant petition. The
court found that petitioner refused to accept responsibility for her actions, inflicted emotional
distress on the children, and chose to keep a cat rather than tend to her child’s needs. The circuit
court also found that the home was unfit for habitation. As such, the circuit court adjudicated
petitioner as an abusing parent.

         In February of 2019, the circuit court held a dispositional hearing wherein it took judicial
notice of the evidence adduced at the adjudicatory hearing. Testimony established that petitioner
failed to accept responsibility for her actions and minimized the condition of the home. A
psychologist who performed a psychological evaluation of petitioner testified that petitioner’s
prognosis for attaining minimally adequate parenting was extremely poor. The psychologist
testified that petitioner blamed others for her situation, claimed that her job prevented her from
cleaning her home, and minimized how filthy the home was. The psychologist opined that
petitioner was intellectually capable of cleaning her home, but chose not to. Given that petitioner
received services over the course of two prior cases, the psychologist concluded that petitioner was
not going to change her behavior. A CPS worker testified that petitioner’s home was visited in
December of 2018 and January of 2019, but the conditions had not improved. In fact, photographs
submitted into evidence showed the continued deterioration of conditions in the home, including
that the home’s refrigerator and freezer were full of flies.

       Petitioner testified that she was unable to comply with parenting services because the
provider refused to work with her schedule. Regarding the flies in her refrigerator, petitioner
claimed that she had not opened the refrigerator since November of 2018 because she never ate at
home. Petitioner also claimed that she swept her home once a day. When asked what changes she
implemented since the beginning of the case in order to help her maintain a cleaner home,


       2
        The child’s exact allergy symptoms are not apparent from the record on appeal. However,
the grandmother testified at the dispositional hearing that J.C. “has no desire to live like that
anymore” and that petitioner’s cat “makes him deathly sick.”
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petitioner testified that she was working with her managers to reduce her hours at work and
requested an improvement period so that she could address the problems in her home. After hearing
evidence, the circuit court found that petitioner placed her own desires above the needs of her
children and refused to clean the home, despite years of services designed to help her maintain a
suitable home. Further, despite J.C. moving out of the home due to his allergies, petitioner refused
to give her cat away. The court found that there was no reasonable likelihood that petitioner could
correct the conditions of abuse and neglect in the near future and that termination of her custodial
rights was in the children’s best interests. It is from the March 17, 2019, dispositional order 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 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 custodial rights
without first granting her an improvement period. Moreover, she argues that the circuit court erred
in determining that she would not comply with the terms and conditions of an improvement period
without first granting her one. According to petitioner, she has “no other major problems” apart
from needing “to do more to keep her home clean.” Specifically, petitioner argues that she does
not do drugs, has always worked a full-time job, and has participated in services offered by the
DHHR both in this case and in her prior cases. As such, petitioner avers that she should have been
granted an improvement period before her custodial rights were terminated. We disagree.

       West Virginia Code § 49-4-610(2)(B) provides that the circuit court may grant a parent a
post-adjudicatory improvement period when the parent “demonstrates, by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period.” We have noted
that “West Virginia law allows the circuit court discretion in deciding whether to grant a parent an


       3
        K.C.’s father is a nonabusing parent and the permanency plan for this child, who is ten
years old, is to remain in his care. The parental rights of J.C.’s father were terminated in prior
proceedings. The child, who is fourteen years old, was placed with his maternal grandparents and
the permanency plan is guardianship in that home.


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improvement period.” In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015). Moreover,
we have held that

       [i]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. 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)).

        Here, the record demonstrates that petitioner failed to acknowledge the existence of a
problem with the condition of her home. During her psychological evaluation, petitioner
minimized the conditions of her home and completely omitted her 2015 case when asked about
her CPS history. Petitioner claimed that she was unable to maintain a clean home due to the full-
time hours she worked and her one-hour commute. Petitioner claimed that she did not know why
there were flies in her refrigerator and also claimed that she had not opened her refrigerator door
since the case began. Further, contrary to the evidence presented, petitioner testified that she swept
her home daily. Ultimately, the psychologist opined that petitioner’s prognosis for attaining
minimally adequate parenting was extremely poor “because she’s had services, [and] she’s not
taking responsibility.” Based on this evidence, we find that petitioner failed to demonstrate that
she was likely to participate in an improvement period given her failure to accept responsibility
for her actions, especially considering she was offered services to address these exact same issues
in two separate prior cases. Moreover, we find no merit in petitioner’s claim that the circuit court
should have first granted her an improvement period before finding that she would not comply
with the same. It was petitioner’s burden to show that she is entitled to an improvement period
before one was granted to her. However, the evidence is clear that petitioner knew what was
required of her and refused to clean her home. As such, we agree with the circuit court’s decision
to deny petitioner’s request for an improvement period.

        We likewise agree with the termination of petitioner’s custodial rights. Pursuant to West
Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate custodial rights upon
findings that there is “no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected in the near future” and that termination is necessary for the child’s welfare.
West Virginia Code § 49-4-604(c)(3) provides that a situation in which there is “[n]o reasonable
likelihood that [the] conditions of neglect or abuse can be substantially corrected” includes when

       [t]he abusing parent . . . ha[s] 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 establishes that petitioner has a long history of CPS intervention due to her
inability to maintain a fit and suitable home for her children. Services were implemented in 2015

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and 2017 to address these same issues. However, only months after having her children returned
to her care, the instant abuse and neglect case was filed against petitioner because her home had
become filthy yet again. Petitioner’s son reported that he moved out of the home due to his severe
allergies to cats and petitioner’s refusal to remove her cat from her home. Indeed, as of the
dispositional hearing, petitioner continued to maintain the cat in her home. Further, pictures of
petitioner’s home and testimony from the CPS worker demonstrated that petitioner had not cleaned
her home. In fact, the conditions worsened during the proceedings. Flies were found in petitioner’s
refrigerator, food littered the stove, and debris from wood kindling was strewn throughout the
home. Further, pictures showed that petitioner had not moved a gallon of tea on her countertop in
almost two months. As testified to by the psychologist, petitioner had the intellectual capacity to
understand the standard of cleanliness required given that she was twice able to address the issues
in her home in prior cases. However, petitioner refused to maintain such standards and, as such,
the psychologist concluded petitioner’s prognosis for improved parenting was extremely poor.
While petitioner argues that she should have been granted another improvement period before her
custodial rights were terminated, we have previously held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [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 [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). Given petitioner’s failure to
address the conditions in her home despite having been provided services on multiple occasions,
we find no error in the circuit court’s finding that there was no reasonable likelihood that the
conditions of abuse and/or neglect could be substantially corrected in the near future and that
termination was necessary for the child’s welfare. Therefore, we find no error in the termination
of petitioner’s custodial rights.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its March
17, 2019, order is hereby affirmed.

                                                                                           Affirmed.

ISSUED: November 8, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison

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