                             STATE OF WEST VIRGINIA
                                                                                   FILED
                           SUPREME COURT OF APPEALS
                                                                             September 13, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
In re K.B.-1, A.L., K.B.-2, and D.B.

No. 19-0242 (Pocahontas County 18-JA-09-RR, 18-JA-10-RR, 18-JA-11-RR, and 18-JA-12-RR)



                               MEMORANDUM DECISION



        Petitioner Mother A.C., by counsel Richard M. Gunnoe, appeals the Circuit Court of
Pocahontas County’s February 6, 2019, order terminating her custodial and parental rights to K.B.-
1, A.L., K.B.-2, and D.B.1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Brandolyn Felton-Ernest, filed a response in support of the circuit court’s
order. The guardian ad litem, R. Grady Ford, 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 denying her
motions to extend her post-adjudicatory improvement period or, alternatively, for a post-
dispositional improvement period, and terminating her custodial and 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 June of 2018, the DHHR filed a child abuse and neglect petition alleging that petitioner
failed to seek adequate medical care for K.B.-1 in January of 2018. According to the DHHR, K.B.-
1 suffered a puncture wound and significant bruising to his leg that was caused by a pellet gun.

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

       Additionally, we note that petitioner is not the biological mother of A.L., but rightfully
appeals the circuit court’s termination of her custodial rights as a pre-petition custodian of this
child.


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The wound was left untreated for at least fourteen days. The DHHR alleged that petitioner and the
father agreed to participate in an in-home safety plan in March of 2018. The DHHR initiated
multiple services, including drug screening, parenting classes, and in-home supervision, to be
completed over the course of three months. However, the DHHR alleged that petitioner and the
father failed to fully participate in the services. In May of 2018, the DHHR interviewed the children
at school and learned that petitioner and the father instructed them not to talk to Child Protective
Services (“CPS”) workers. Additionally in May of 2018, the DHHR alleged that the children
witnessed the father initiate a fight in the community during which he struck a man with a gun and
cut his chest with “a dull kitchen knife.” Finally, the DHHR alleged that K.B.-1, A.L., and K.B.-2
each had more than ten unexcused absences from school and that the school filed truancy charges
against the parents. Following the filing of the petition, the children remained in the legal and
physical custody of the parents.

        In June of 2018, petitioner stipulated to adjudication. The circuit court accepted petitioner’s
stipulation and adjudicated the children as abused children and petitioner as an abusing parent.
Petitioner moved for a post-adjudicatory improvement period, which the circuit court held in
abeyance. The circuit court granted legal custody of the children to the DHHR, but ordered that
they remain in their parents’ physical custody until it was determined that they were in danger.
Finally, the circuit court ordered the DHHR to provide services to the parents.

         The circuit court held a hearing on petitioner’s motion for a post-adjudicatory improvement
period in July of 2018 and granted the motion. During a colloquy with the circuit court, petitioner
acknowledged and agreed to the terms of her improvement period, which included parenting and
adult life skills classes, a psychological evaluation, a substance abuse evaluation and compliance
with its recommendations, a substance abuse treatment program, and supervised visitations. The
circuit court granted petitioner a three-month improvement period. In November of 2018, the
circuit court held a review hearing.2 The DHHR moved to set the case for a dispositional hearing
and alleged that petitioner failed to participate in drug screening, parenting and adult life skills
classes, or substance abuse treatment. Petitioner argued that she participated in some services and
moved for an extension to her post-adjudicatory improvement period. The circuit court held that
motion in abeyance. In December of 2018, the circuit court continued a previously scheduled
dispositional hearing after learning that petitioner entered into a detoxification program. During
the hearing, the circuit court warned petitioner’s counsel that a detoxification program “fell far
short of the type of substance abuse treatment required to make a serious showing that the issues
of abuse and neglect could be remedied.”

        The circuit court held two dispositional hearings in January of 2019. The DHHR presented
evidence that petitioner minimally complied with the terms and conditions of her post-adjudicatory
improvement period. According to the evidence, petitioner did not have stable housing or
employment and attended only six out of thirty parenting and adult life skills classes. Additionally,
petitioner failed to obtain long-term treatment for her substance abuse issue and failed to
participate in random drug screening since October of 2018. Petitioner moved for an extension of
her post-adjudicatory improvement period or, alternatively, a post-dispositional improvement


       2
         The DHHR filed an amended petition in November of 2018 alleging that A.L.’s mother,
S.L., abandoned that child. The amended petition contained no new allegations against petitioner.
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period. In support, petitioner testified and acknowledged her substance abuse problem and her
willingness to participate in long-term substance abuse treatment. Petitioner testified that she
experienced difficulty consistently participating in services, such as a lack of transportation and
an inability to contact providers due to poor cell phone coverage. However, petitioner also
admitted that she had not completed any applications for substance abuse treatment programs since
she completed the detoxification program.

        Ultimately, the circuit court found that petitioner failed to avail herself of the services
offered during the post-adjudicatory improvement period. Further, the circuit court found that
petitioner failed to prove by clear and convincing evidence that she would fully participate in a
further improvement period or that she had experienced a substantial change in circumstances to
warrant an additional improvement period. Based upon petitioner’s failure to comply with the
services provided, the circuit court concluded that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected in the near future and that the
children’s best interests were served by the termination of petitioner’s custodial and parental rights.
Accordingly, the circuit court terminated petitioner’s custodial and parental rights by its February
6, 2019, order. Petitioner now appeals that order.3

       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, this Court finds
no error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred in denying her motion for an
extension of the post-adjudicatory improvement period or, alternatively, a post-dispositional
improvement period. Petitioner asserts that one of these less-restrictive alternatives to termination
of her custodial and parental rights was warranted because the evidence presented showed that she



       3
        The father’s custodial and parental rights were terminated below. A.L.’s mother’s parental
rights were terminated as well. According to the parties, the permanency plan for the children is
adoption in their current foster placement.


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substantially complied with the terms of the post-adjudicatory improvement period. However, the
evidence elicited below does not support a finding that petitioner substantially complied.

         West Virginia Code § 49-4-610(6) provides that a circuit court may grant an extension of
an improvement period when it finds “that the [parent] has substantially complied with the terms
of the improvement period.” In this case, the DHHR presented evidence that petitioner’s
participation in rehabilitative services was minimal. Petitioner failed to attend the majority of
parenting and adult life skills classes and failed to participate in drug screening after October of
2018. Most importantly, petitioner admitted she had a substance abuse issue and failed to seek
adequate treatment as required by the terms of her improvement period. Although petitioner
testified that she experienced difficulties contacting providers for services, West Virginia Code §
49-4-610(4)(A) is clear that “the [parent] shall be responsible for the initiation and completion of
all terms of the improvement period.” The evidence below did not support a finding that petitioner
substantially complied with the terms of her improvement period. Therefore, petitioner did not
meet the statutory requirements necessary for the circuit court to grant her an extension of her post-
adjudicatory improvement period.

        Similarly, petitioner did not meet the statutory requirements for a post-dispositional
improvement period. West Virginia Code § 49-4-610(3)(D) provides that a circuit court may only
grant an additional improvement period following the expiration of the initial period if “the
[parent] has experienced a substantial change in circumstances. Further, the [parent] shall
demonstrate that due to that change in circumstances, the [parent] is likely to fully participate in
the improvement period.” In this case, petitioner never expressed a change in circumstances from
the post-adjudicatory improvement period. In fact, on appeal, petitioner does not argue that she
experienced a substantial change in circumstances. Rather, the evidence showed that petitioner
continued to indicate her willingness to participate in long-term substance abuse treatment without
any action to initiate the same. Accordingly, the circuit court properly denied petitioner’s motion
for a post-dispositional improvement period due to petitioner’s failure to demonstrate a substantial
change in circumstances.

        Finally, petitioner’s failure to participate in rehabilitative services supported the finding
that there was no reasonable likelihood that the conditions of neglect or abuse could be
substantially corrected in the near future. West Virginia Code § 49-4-604(b)(6) provides that
circuit courts are to terminate parental 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 welfare of the children. Further, West Virginia Code § 49-4-
604(c)(3) provides that situations in which there is “no reasonable likelihood that conditions of
neglect or abuse can be substantially corrected” include one in which the abusing parent has

       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.




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        It is clear in this case that petitioner did not respond to or follow through with the
rehabilitative services provided by the DHHR. As noted above, petitioner failed to fully participate
in services and failed to remedy the conditions of neglect and abuse. Due to petitioner’s failure to
remedy the conditions of neglect or abuse, the children would continue to be at risk of the abuse
that gave rise to the filing of the petition if returned to petitioner’s care. Therefore, the circuit court
correctly found that it was necessary for the children’s welfare to terminate petitioner’s custodial
and parental rights. Accordingly, we find no error in the circuit court’s termination of petitioner’s
custodial and parental rights.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 6, 2019, order is hereby affirmed.

                                                                                                Affirmed.


ISSUED: September 13, 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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