                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: K.J.                                                                         FILED
                                                                                   June 2, 2014
No. 14-0019 (Mercer County 13-JA-065)                                          RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


                               MEMORANDUM DECISION
       Petitioner Mother filed this appeal by her counsel, Michael P. Cooke, from an order
entered December 13, 2013, in the Circuit Court of Mercer County, which terminated her
parental rights to twenty-month-old K.J. The guardian ad litem for the child, Patricia Kinder
Beavers, filed a response in support of the circuit court’s order. The Department of Health and
Human Resources (“DHHR”), by its attorney, Michael L. Jackson, also filed a response in
support of the circuit court’s order. Petitioner argues that the circuit court erred when it failed to
grant her an improvement period.

        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.

        Late in the evening on May 30, 2013, Petitioner Mother requested her friend J.C. care for
the child. Upon retrieving the child from Petitioner Mother’s home and returning to her own
home, J.C. observed that the child had a black eye and other marks on her face and body. After
receiving a referral based on these injuries, the DHHR visited petitioner’s home, which smelled
of alcohol and had a bucket of empty beer bottles on the front porch. While the child was
examined at the hospital, petitioner kept falling asleep and later left the hospital without the child
and without inquiring about the child’s test results or care. The DHHR’s abuse and neglect
petition followed, alleging these events and that the cause of the child’s multiple facial
contusions, bodily injuries, bruises, and cuts were unknown; that when asked about the child,
petitioner gave the child’s incorrect age; that when petitioner observed the child’s facial injuries,
she stated that she “didn’t do [that]”; and that petitioner agreed to a temporary protection plan for
the child to stay with a relative. Petitioner waived her right to a preliminary hearing.

        At the adjudicatory hearing in September of 2013, petitioner’s caseworkers testified that
petitioner had been testing positive for cocaine and opiates in all of her drug screens and had
been missing her visits with the child. Petitioner testified that she had no knowledge of the cause
of her child’s injuries and that she would be willing to go to treatment for her drug addiction.
Petitioner also testified that she had been working construction jobs for a man she depended on
for housing. This man testified that he had not observed any injuries on the child and that he was


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arrested for cocaine possession about a year prior. Petitioner’s brother testified that petitioner
previously lost custody to two other children.

        After considering this evidence along with a physician’s letter that opined that the child’s
injuries were highly suspicious and were sustained as a result of physical assault, the circuit court
adjudicated the child as abused and neglected and found that her serious bodily injuries
constituted aggravated circumstances under West Virginia Code § 49-6-3(d)(1). The circuit court
subsequently denied petitioner’s written motion for a post-adjudicatory improvement period.
Ultimately, in December of 2013, after hearing further testimony at petitioner’s dispositional
hearing, the circuit court terminated petitioner’s parental rights to the child. Petitioner now
brings this appeal.

       This 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).

        Petitioner’s sole argument on appeal is that the circuit court erred when it failed to grant
her a post-adjudicatory improvement period. Petitioner asserts that she openly admitted to having
a drug problem and that she would participate in substance abuse treatment. Petitioner asserts
that these admissions provided clear and convincing evidence that she would have complied with
the terms of an improvement period.

       Upon our review of the record, we find no error by the circuit court. West Virginia Code
§ 49-6-12(b) directs that a circuit court has the discretion to grant a post-adjudicatory
improvement period if the subject parent has filed a written motion for an improvement period
that demonstrates by clear and convincing evidence that he or she is likely to fully participate in
the improvement period. We have also held as follows:

               “[C]ourts are not required to exhaust every speculative possibility of
       parental improvement . . . where it appears that the welfare of the child will be
       seriously threatened, and this is particularly applicable to children under the age
       of three years who are more susceptible to illness, need consistent close


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       interaction with fully committed adults, and are likely to have their emotional and
       physical development retarded by numerous placements.” Syl. Pt. 1, in part, In
       Re: R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 4, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Under West Virginia Code §
49-6-3(d)(1), the DHHR is also not required to make reasonable efforts to preserve the family if
the circuit court has determined that aggravated circumstances exist.

        Our review of the record reveals that petitioner made no efforts to treat her drug abuse
while this case was open. Specifically at the adjudicatory hearing, after which petitioner filed her
motion for an improvement period, several caseworkers and other witnesses testified that
petitioner continued to test positive for cocaine and opiates, missed visitation with the child, and
missed parenting and adult skills classes. One caseworker testified that, against medical advice,
petitioner checked herself out of a short-term substance abuse treatment program the same day
she checked in. This evidence supports the circuit court’s decision to deny petitioner’s motion
for a post-adjudicatory improvement period.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.


ISSUED: June 2, 2014

CONCURRED IN BY:

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




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