                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                     FILED
In re A.C. and C.C.                                                              March 12, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 17-0879 (Kanawha County 14-JA-215 and 216)                                   SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Mother B.R., by counsel Jennifer N. Taylor, appeals the Circuit Court of
Kanawha County’s September 15, 2017, order terminating her parental rights to A.C. and C.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. The guardian ad litem
(“guardian”), Jennifer R. Victor, 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 finding that she
had not made substantial improvements to her parenting and in terminating her parental rights.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 2014, the DHHR filed a petition that alleged petitioner was found “passed out
in the middle of the street intoxicated” along with her boyfriend and her three year old infant,
A.C., who was left unattended in a stroller. Petitioner still had a needle in her arm. Further, the
petition alleged that petitioner (1) failed to provided food, clothing, and supervision to A.C. and
                                                            
              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
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective on May 20, 2015. In this memorandum decision, we apply the statutes as they
existed during the pendency of the proceedings below. It is important to note, however, that the
abuse and neglect statutes underwent minor stylistic revisions and the applicable changes have
no impact on the Court’s decision herein.



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C.C. (“the children”), (2) was not sufficiently motivated and organized to provide for the
children’s needs, and (3) her actions constituted “extreme maltreatment.” The petition also
alleged that the biological father was found incoherent in a hotel room “filled with blood, feces,
pills and needles.” One of the children, who was in his care at the time, was found unattended
outside of the hotel room.

        Petitioner and the father both stipulated to adjudication and admitted to a history of
substance abuse that negatively affected their ability to parent. Petitioner was granted a post-
adjudicatory improvement period with requirements to participate in supervised visitation,
substance abuse treatment, random drug screens, adult life skills, parenting classes, a parental
fitness evaluation, and a substance abuse evaluation.3

       In December of 2015, after multiple review hearings and an unopposed motion by the
guardian to continue the dispositional hearing, petitioner was granted a post-dispositional
improvement period with the same services as the previous improvement period. The circuit
court noted problems in the initial improvement period, including petitioner not participating in
random drug screening or out-patient substance abuse treatment and not making sufficient
progress in parenting. However, petitioner and the father did test negative on drug screens when
the DHHR transported them to the screening location. Moreover, petitioner was working and
maintaining housing at this time, which was a noted improvement.

        The circuit court reviewed the post-dispositional improvement period and found
petitioner was making enough progress to continue the improvement period. However, petitioner
was not participating in drug screens or substance abuse therapy and issues were noted after an
overnight visitation. Parenting providers continued to report that petitioner was not making
enough progress in parenting and continued to have safety concerns.

        In July of 2016, the circuit court terminated the post-dispositional improvement period
for a lack of compliance. The circuit court was concerned that petitioner tested positive for
marijuana and morphine after the March of 2016 hearing, was not participating in drug screens,
and did not participate in substance abuse therapy for a month preceding the final review. The
circuit court ordered that services continue until the dispositional hearing.

        At the dispositional hearing, the circuit court heard testimony from service providers that
petitioner was only partially participating in drug screening and some of the tests were positive
for marijuana. The circuit court noted the provider’s concerns that the father was not consistent
with discipline. Ultimately, the circuit court ordered that petitioner’s substance abuse therapy be
discontinued and that extended overnight visitations begin.

                                                            
              3
         Although petitioner and the biological father were not living together at the time the
petition was filed, soon thereafter they began to reside together and to jointly care for the
children throughout the proceedings, until a month prior to disposition when they separated. The
biological father’s services mirrored petitioner’s and they participated in many of those services
together.



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        In February of 2017, the circuit court began reunification and gave petitioner and the
father full custody of the children, with services to continue. The DHHR reported clean drug
screens and that all overnight visitations were going well. Also, A.C. was noted to have made
extraordinary progress while in his foster placement and was performing much better in school
and around his sister. The circuit court noted that petitioner would need to enroll A.C. in a
different elementary school and provide for his education. Ultimately, the case was continued for
disposition with an order to continue services.

        In May of 2017, the circuit court held a dispositional hearing and heard testimony about
the preceding ninety days while the children were in petitioner’s home. It was reported that A.C.
was coming to school dirty, unfed, not prepared to participate in class, and was absent without
excuse for multiple days. Additionally, A.C. was sent to school one day with a fever and earache
or infection. A.C.’s grades dropped dramatically as a result. Further, the children stopped
attending scheduled therapy sessions. A DHHR worker testified that petitioner’s home was
clean, appropriate, and with food for the children. The DHHR recommended the case be
dismissed with services. The circuit court granted the Court Appointed Special Advocates’
(“CASA”) motion to re-engage with the children’s therapist. Ultimately, the circuit court showed
particular concern for these new education and hygiene issues and ordered that the dispositional
hearing be continued for ninety days with continued services.

         In August of 2017, the circuit court held the final dispositional hearing. By the final
hearing, one of the father’s screens returned a preliminary result for amphetamines. At first, the
father denied using any drugs and instead insisted energy drinks caused a false positive. A
DHHR worker confronted the parents with the preliminary result and Petitioner stated that she
would force the father to leave the house if the confirmation result was a positive screen.
Petitioner did not take any immediate action to remove the father. Later, the father admitted to a
DHHR worker that he relapsed three times since the children were returned to the parent’s care
in February. A DHHR worker testified that the father stated that he was stressed because he was
often left alone with the children, even when he believed petitioner was not at work, and the
stress contributed to his relapse. After the positive drug screen was confirmed by laboratory
testing, petitioner testified that she forced the father to leave the house. However, the father
stated that he watched the children alone a few days after petitioner made him leave. Also, after
the positive drug screen, petitioner took the children camping and invited their father, who stayed
overnight at the campsite. Petitioner’s older child, A.C., believed that petitioner took the children
camping specifically so no one would know about the visit with their father. A DHHR worker
testified that petitioner and the father continued to exhibit problems from the beginning of the
case and testified that their home had an inadequate food supply, that the home was unfit for
children, and that petitioner continued to provide inadequate supervision. Additionally, once the
children were removed, both were noted to have staph infections; A.C.’s infection manifested as
a large and painful boil. Further, A.C. had an infected splinter that was wrapped in duct tape. The
DHHR worker testified about an earlier incident when petitioner covered splinters with duct tape
and that she had advised petitioner not to do so in the future.

        Following all testimony and argument, the circuit court found that petitioner failed to
complete her post-dispositional improvement period. Specifically, the circuit court found
petitioner failed to supervise the children properly, permitted the children to be cared for by

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inappropriate people, failed to provide appropriate medical attention, failed to maintain the home
and have adequate food for the children, and failed to ensure the children attended school
regularly. Additionally, petitioner allowed the children to be around their father when she knew
he tested positive for illicit drugs. Further, the circuit court found that petitioner had not
responded to a reasonable family case plan and that there was no reasonable likelihood the
conditions of abuse and neglect could be corrected in the near future. Ultimately, the circuit court
terminated petitioner’s parental rights in its September 15, 2017 order.4 Petitioner appeals the
order terminating her parental rights.

              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.

       First, petitioner argues that the circuit court clearly erred in finding that there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect. Specifically, petitioner argues that she substantially complied with the terms of the
family case plan and that the circumstances that gave rise to the petition, particularly her
substance abuse, were corrected. Petitioner asserts that the circuit court decided that her
improvement period was unsuccessful based upon a miscommunication with the DHHR
involving the camping trip with the father and nothing more. We disagree.

        West Virginia Code § 49-4-604(b) provides that “upon a finding 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],” then the circuit
court may terminate the parental rights of an abusing parent. West Virginia Code § 49-4-604(c)
provides that these conditions exist when “the abusing adult or adults have demonstrated an
                                                            
              4
        In addition to the termination of petitioner’s parental rights, the children’s father’s
parental rights have been terminated. According to the DHHR and the guardian, the children are
currently placed in a foster home together. The permanency plan is adoption in that foster home. 



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inadequate capacity to solve the problems of abuse or neglect on their own or with help.” For
example, when “the abusing parent . . . [has] not responded to . . . a reasonable family case plan
or other rehabilitative efforts . . . designed to reduce or prevent the abuse or neglect of a child as
evidenced by the continuation . . . of [the] conditions.” West Virginia Code § 49-4-604(c)(3).
When considering whether an abusing parent responded to a reasonable family case plan, the
circuit court must consider what progress, if any, was made during the abusing parent’s
improvement period.

               At the conclusion of the improvement period, the court shall review the
       performance of the parents in attempting to attain the goals of the improvement
       period and shall, in the court’s discretion, determine whether the conditions of the
       improvement period have been satisfied and whether sufficient improvement has
       been made in the context of all the circumstances of the case to justify the return
       of the [children].

Syl. Pt. 2, In re C.M., 235 W.Va. 16, 770 S.E.2d 516 (2015) (emphasis added).

        The record is clear when considering all circumstances that petitioner did not make
sufficient improvement in her parenting. Two review hearings were held after petitioner regained
full custody of the children and both illustrated major concerns. Between February of 2017 and
May of 2017, A.C., petitioner’s oldest child, went to school unfed and dirty and was often absent
without excuse. As a result, A.C.’s performance in school deteriorated. A.C. was sent to school
with an ear infection and a high fever, without any treatment at home. By the beginning of
March of 2017, neither A.C. nor C.C. were taken to their therapist to continue therapy. Initially,
when workers conducted home visits, they found that the home was clean and well stocked with
food; however, those conditions deteriorated. By August of 2017, the DHHR concluded that the
home was filthy and without any easily accessible food for the children. Further, both children
had staph infections, which A.C. described as very painful. Moreover, an infected splinter in
A.C.’s foot was covered with duct tape. Notably, petitioner attempted this duct tape treatment
previously, and the DHHR explained that it was unacceptable. Additionally, petitioner allowed
the father of the children to provide supervision, even after he tested positive for drugs. The
father admitted he had relapsed three times since February of 2017, but was living in the house
with petitioner and the children throughout. Petitioner argues that she took appropriate steps to
remove the father after his positive drug screen in June of 2017. Yet petitioner took no steps to
remove the father before the laboratory confirmed he was using drugs, and instead chose to
believe the father’s excuse that the drug screen was positive due to “energy drinks,” which are
not known to include amphetamines. Finally, petitioner allowed the relapsed father visitation
during the overnight camping trip with the children. Both the DHHR and A.C. believed the trip’s
purpose was to allow visitation between the children and their father without alerting the DHHR.
The trip further highlights that petitioner was not concerned with the father’s drug use and shows
that petitioner continued to exercise poor judgement.

        Petitioner was afforded substantial time to improve, yet her progress was very slow and
the circuit court noted deficiencies at multiple review hearings. Nonetheless, the circuit court
continued to give petitioner opportunities to improve. Once petitioner had sole custody of the
children, even more issues arose in her parenting. Finally, after three years of services and

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instruction, a basic level of medical and educational care was not provided to the children and
petitioner continued to exercise poor judgement and insufficient supervision. When considering
the lack of petitioner’s improvement over the length of the case, we find that the circuit court did
not clearly err in finding there was no reasonable likelihood that the conditions of abuse or
neglect could be corrected in the near future.

        Petitioner next argues that the circuit court’s dispositional order improperly considered
abuse or neglect that was not alleged in the original petition. Petitioner asserts that allowing the
children to be with their relapsed father, was a new and unalleged issue. There are two problems
with this argument. First, the petition included allegations that petitioner failed to provide
appropriate food, clothing, and supervision for the children. When considering the children’s
condition from February of 2017 through August of 2017, the record is clear that petitioner
continued to overlook the needs of the children, including, but not limited to, the need for
adequate supervision. Petitioner exhibited poor judgment when she allowed the relapsed father to
supervise and visit with the children. Second, petitioner misconstrues the goal of an
improvement period. “As is clear from the language of the statute, . . . the ultimate goal is
restoration of a stable family environment, not simply meeting the requirements of the case
plan.” In the interest of Carlita B., 185 W.Va. 613, 626, 408 S.E.2d 365, 378 (1991). Petitioner’s
children were going to school dirty, living in a filthy home, and were without accessible food.
The circuit court could see the effect of the home environment on A.C. as his performance in
school deteriorated. Additionally, C.C. was never enrolled in preschool and appeared dirty
during the May home visit. “[I]t is possible for an individual to show ‘compliance with specific
aspects of the case plan’ while failing ‘to improve . . . [the] overall attitude and approach to
parenting.’” Carlita B., 185 W.Va. at 626, 408 S.E.2d at 378 (quoting W.Va. Dep’t. of Human
Serv. v. Peggy F., 184 W.Va. 60, 64, 399 S.E.2d 460, 464 (1990)). Petitioner exercised poor
judgment by continuing to allow the father around her children. The circuit court correctly found
that petitioner’s overall approach to parenting was not improved. Ultimately, “[t]he controlling
standard that governs any dispositional decision remains the best interests of the child.” Syl. Pt.
4, In re B.H., 233 W.Va. 57, 754 S.E.2d 743 (2014). The multiple painful medical conditions and
educational issues that petitioner’s children faced from February of 2017 through August of 2017
indicated that their best interests were not being served. Thus, we find that the circuit court
properly considered all the circumstances petitioner’s children faced in petitioner’s care at
disposition.

       Finally, petitioner argues that the circuit court abused its discretion in terminating her
parental rights when less-restrictive alternatives were available. Petitioner asserts that the circuit
court could have ordered a post-dispositional improvement period for her and terminated the
parental rights of the relapsed father. We disagree.

        As noted above, West Virginia Code § 49-4-604(b) provides that a circuit court may
terminate the parental rights of an abusing parent upon findings that there is no reasonable
likelihood that the conditions of abuse or neglect can be substantially corrected in the near future
and that termination is necessary for the welfare of the children. The circuit court properly
considered petitioner’s lack of progress throughout this lengthy case and the children’s need for
permanency. Petitioner could not meet the needs of her children despite three years of services
and instruction. Further, petitioner’s request for a second post dispositional improvement period

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is not permitted by West Virginia Code § 49-4-610. We have previously held that “courts are not
required to exhaust every speculative possibility of parental improvement . . . where it appears
that the welfare of the child will be seriously threatened . . . .” Cecil T., 228 W.Va. at 91, 717
S.E.2d at 875, Syl. Pt. 4. Therefore, we find that the circuit court did not abuse its discretion in
terminating petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 15, 2017, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: March 12, 2018


CONCURRED IN BY:

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




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