                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                 FILED
In re: N.H.                                                                 September 5, 2017
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
No. 17-0358 (Jackson County 16-JA-1)                                              OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Mother A.S., by counsel James M. Pierson, appeals the Circuit Court of
Jackson County’s March 27, 2017, order terminating her parental rights to N.H.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Steven R.
Compton, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Erica Brannon Gunn, filed a response on behalf of the child in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating her
parental rights and finding that continuation in her home threatened the health, welfare, and life
of the child.

        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 against petitioner and
N.H.’s father alleging that petitioner and the father engaged in domestic violence in the child’s
presence and that petitioner frequently left the child alone and without basic provisions,
including proper medical care, supervision, and shelter.2 According to the petition, petitioner left
the child with the paternal grandparents and a family friend and did not come back. The petition
further alleged that petitioner failed to bond with the child or comply with West Virginia Birth to



       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
         According to the record, N.H. was born with a heart murmur, blood on the brain, and
cerebral palsy. As a result, the child is severely physically and developmentally delayed.



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Three services (“Birth to Three”).3 Petitioner also admitted to spanking, shoving, and yanking
the child in his crib, and locked the child in his bedroom when he cried. Finally, the petition
alleged that the father failed to protect the child from petitioner’s neglect, cared for the child
while he was under the influence of drugs and/or controlled substances, admitted to marijuana
use, and admitted that he knew that petitioner was leaving the child home alone. Also in January
of 2016, the circuit court held a preliminary hearing, during which it found that the child was in
imminent danger due to the presence of domestic violence. The circuit court removed the child
from the home and ordered that petitioner and the father submit to random drug screens and
parental fitness evaluations.

        In February of 2016, the circuit court held an adjudicatory hearing during which
petitioner admitted to engaging in domestic violence in the child’s presence, abandoning him,
and failing to provide him with appropriate medical care and supervision. Based upon
petitioner’s admission, she was adjudicated an abusing parent and granted a post-adjudicatory
improvement period. The father failed to appear at the first adjudicatory hearing but was
represented by counsel. The circuit court continued the hearing. In March of 2016, the circuit
court resumed the adjudicatory hearing wherein it heard testimony from a service coordinator
with Birth to Three, an outreach coordinator with Homebase, and petitioner.4 Petitioner testified
that the father was “involved with drugs” and that she filed for a domestic violence protective
order in April of 2016 after the father put a gun to her head and threatened her life and the child’s
life. Based on the evidence presented, the circuit court found that petitioner and the father
exposed the child to domestic violence.

         In February of 2017, the circuit court held a dispositional hearing wherein it heard
testimony regarding the child’s substantial medical needs and petitioner’s inability to
accommodate the child’s special needs. A nurse with Birth to Three testified that she worked
with the child on multiple occasions and that the child needs daily administrations of a muscle
relaxer, baclofen, and regular physical, occupational, developmental, and speech therapies. She
further testified that petitioner failed to administer baclofen on at least one occasion because she
“overslept.” The nurse further testified that the baclofen must be administered “on time” daily or
muscle spasticity can occur and increase the child’s risk of choking. A Homebase coordinator
testified that during her improvement period, petitioner failed to attend numerous meetings
regarding the child’s healthcare needs. According to the coordinator, petitioner attended only
three of approximately twenty-six weekly meetings. A speech pathologist testified that petitioner
did not regularly attend the child’s meetings and, after January of 2016, stopped attending the
meetings altogether. The speech pathologist also expressed concern regarding petitioner’s ability
to regularly practice the child’s requisite eating and drinking exercises. A second Homebase
coordinator, new to petitioner’s case, expressed doubt about petitioner’s ability to parent the

       3
        West Virginia Birth to Three is an early intervention program that partners with families
and caregivers to build upon their strengths by offering coordination, supports, and resources to
enhance children’s learning and development.
       4
         Homebase is a private behavioral health and social service provider serving the entire
state of West Virginia.


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child because petitioner failed to regularly attend meetings related to the child’s healthcare
needs, but believed that petitioner was an appropriate parent. Ultimately, the circuit court
terminated petitioner’s parental rights by order dated March 27, 2017.5 It is from this order that
petitioner now 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.

       Petitioner argues that the circuit court erred in terminating her parental rights to the child
because the record was insufficient to support termination; that her failure to substantially
comply with her improvement period was not her fault; and that the circuit court failed to make
findings pursuant to West Virginia Code § 49-4-604(b)(6).6 Pursuant to West Virginia Code §

       5
        Petitioner and the father’s parental rights to the child were terminated below. According
to the guardian, the child is currently placed in a foster home with the permanency plan of
adoption.
       6
         Petitioner broadly cites to the entirety of West Virginia Code § 49-4-604(b)(6) without
citing to any specific provision or to the record. This is problematic in that West Virginia Code §
49-4-604(b)(6) provides that

       [u]pon a finding that there is no reasonable likelihood that the conditions of
       neglect or abuse can be substantially corrected in the near future and, when
       necessary for the welfare of the child, [a circuit court may] terminate the parental,
       custodial and guardianship rights and responsibilities of the abusing parent and
       commit the child to the permanent sole custody of the nonabusing parent, if there
       be one, or, if not, to either the permanent guardianship of the department or a
       licensed child welfare agency. The court may award sole custody of the child to a
       nonabusing
                                                                                    (continued . . .)
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49-4-604(b)(6), circuit courts are directed to terminate parental rights when they find that there is
no reasonable likelihood that a parent could substantially correct the conditions of abuse and
neglect in the near future and that termination is 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 . . . parents . . . have
not responded to or followed through with a reasonable family case plan or other rehabilitative
efforts[.]” In the case at bar, and as noted above, petitioner failed to attend numerous regular
physical, occupational, developmental, and speech therapy meetings necessary for the child’s
special healthcare needs. The circuit court was also presented with evidence that, when petitioner
did attend these therapy meetings, she was unable to manage the requisite specialized practices
needed to maintain the child’s healthcare and safety. As a result, the circuit court found that there
was no reasonable likelihood that petitioner could substantially correct the conditions of abuse
and neglect in the near future; thus, termination was necessary for the child’s welfare.

        On appeal, petitioner argues that she was unable to comply with the some of the
aforementioned services because of the “six different Homebase workers who were assigned her
case.” However, petitioner fails to acknowledge that the circuit court granted her a three month
extension on her improvement period to specifically accommodate for the “unforeseeable delays
with services.” There is no evidence that the different Homebase coordinators caused petitioner
to miss numerous therapy services for the child. Given the circumstances presented in this case,
the circuit court did not err in terminating petitioner’s parental rights to the child.


       battered parent. If the court shall so find, then in fixing its dispositional order the
       court shall consider the following factors: (A) The child’s need for continuity of
       care and caretakers; (B) The amount of time required for the child to be integrated
       into a stable and permanent home environment; and (C) Other factors as the court
       considers necessary and proper. Notwithstanding any other provision of this
       article, the court shall give consideration to the wishes of a child fourteen years of
       age or older or otherwise of an age of discretion as determined by the court
       regarding the permanent termination of parental rights. No adoption of a child
       shall take place until all proceedings for termination of parental rights under this
       article and appeals thereof are final. In determining whether or not parental rights
       should be terminated, the court shall consider the efforts made by the department
       to provide remedial and reunification services to the parent. The court order shall
       state: (i) That continuation in the home is not in the best interest of the child and
       why; (ii) Why reunification is not in the best interests of the child; (iii) Whether
       or not the department made reasonable efforts, with the child’s health and safety
       being the paramount concern, to preserve the family, or some portion thereof, and
       to prevent the placement or to eliminate the need for removing the child from the
       child’s home and to make it possible for the child to safely return home, or that
       the emergency situation made those efforts unreasonable or impossible; and (iv)
       Whether or not the department made reasonable efforts to preserve and reunify
       the family, or some portion thereof, including a description of what efforts were
       made or that those efforts were unreasonable due to specific circumstances.



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        Petitioner also argues that the circuit court erred in finding that continuation in her home
threatened the health, welfare, and life of the child. Specifically, petitioner highlights that one of
the Homebase coordinators testified that petitioner had a “significant bond” with the child and
“properly cared for [the child] on [her] visits, including giving his medications appropriately,
feeding, changing him, interacting with him using his toys and word games.” Petitioner claims
that this coordinator’s testimony was sufficient to show that the circuit court ignored this finding
and therefore erred in terminating her parental rights. However, petitioner’s argument ignores the
record and the abundant unfavorable testimony given by other witnesses. Moreover, the circuit
court specifically addressed the coordinator’s testimony in the final order and weighed it against
the testimony of the other witnesses. This included testimony that petitioner’s failure to timely
administer medication increased the chances of the child choking. Further, even though the
coordinator’s testimony was generally positive, she still expressed concern over petitioner’s
inability to regularly attend meetings and therapy sessions. As the trier of fact, the circuit court
was tasked with making credibility determinations as to the various witnesses and these findings
are entitled to deference on appeal. See Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497
S.E.2d 531, 538 (1997) (stating that “[a] reviewing court cannot assess witness credibility
through a record. The trier of fact is uniquely situated to make such determinations and this
Court is not in a position to, and will not, second guess such determinations.”). As such, we will
not second guess the circuit court’s findings and find no error in the circuit court’s order
terminating petitioner’s parental rights to the child.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
March 27, 2017, order is hereby affirmed.


                                                                                           Affirmed.

ISSUED: September 5, 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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