                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS

In Re: A.C., O.C., and D.C.                                                         FILED
                                                                                  March 12, 2013
                                                                              RORY L. PERRY II, CLERK
No. 12-0916 (Berkeley County 10-JA-56, 57 & 58)                             SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

                                 MEMORANDUM DECISION

        Petitioner Mother filed this appeal, by counsel William Prentice Young, from the Circuit
Court of Berkeley County which terminated her parental rights by order entered on July 5, 2012.
The guardian ad litem for the children, Anne B. Prentice, has filed a response supporting the
circuit court’s order. The Department of Health and Human Resources (“DHHR”), by its
attorney Lee Niezgoda, also filed a response in support of the circuit court’s order.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        The DHHR initiated this case when it filed its first petition in August of 2010 and the
amended petition in November of 2010. Both petitions contained allegations of sexual abuse
against child O.C., physical abuse against O.C. and A.C., and domestic violence between the
parents in the children’s presence. After about one year into the proceedings, the parents
admitted to their failure to protect the children by engaging in domestic violence in the children’s
presence. Petitioner Mother admitted that, as a battered spouse, she failed to protect the children
from abuse and from their exposure to domestic violence. Also around this time, the DHHR
notified the parties that it would no longer pursue the sexual abuse allegations. Dispositional
hearings began in September of 2011 and, in July of 2012, the circuit court entered its order
terminating both parents’ parental rights without an improvement period. Petitioner Mother
appeals this order.

        Petitioner Mother first argues that the circuit court erred in denying her motion for
supervised visitation because compelling evidence did not show that visitation would not be in
the children’s best interests. In response, the children’s guardian ad litem and the DHHR argue
that the evidence showed that visitation and contact between parents and children would not be
in the children’s best interests. For a large duration of the case, the parents continued to deny any
domestic violence issues in the home. Without acknowledging that such issues existed, services
and aid were unable to be offered during that time. Both raise that Rule 15 of the Rules of
Procedure for Child Abuse and Neglect Proceedings provide the circuit court with authority to
determine visitation during an abuse and neglect case.

      Next, Petitioner Mother argues that the circuit court erred in finding that the DHHR had
made reasonable efforts to promote permanency. She asserts that no reasonable efforts were


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made when the DHHR was acting in bad faith concerning the petition’s sexual abuse allegations.
In response, the children’s guardian ad litem and the DHHR contend that although Petitioner
Mother participated in counseling and adult life skills classes, she failed to make improvement
throughout the case. They further assert that, regardless of the DHHR’s decision to no longer
investigate the sexual abuse allegations, Petitioner Mother failed to show how she would protect
her children in the future from domestic violence and physical abuse.

        Third, Petitioner Mother argues that the circuit court erred in denying her an
improvement period and in finding that there was no reasonable likelihood that conditions could
be substantially corrected in the near future. In support, Petitioner Mother asserts that the circuit
court erred in basing this decision on (1) her lack of response when she was asked if she would
be willing to leave the children’s father in order to protect the children, (2) the father’s opinion
that the DHHR took custody of the children as “a mistake [] they have made,” (3) the DHHR
worker’s testimony that the parents did not acknowledge the reasons for Child Protective
Services (“CPS”) involvement, and (4) the parents’ assertion that there was no point in working
towards correcting issues of the home until the DHHR decided not to pursue the sexual abuse
allegations. The children’s guardian ad litem and the DHHR respond and argue that the circuit
court had the discretion to deny Petitioner Mother an improvement period after she failed to meet
her burden for one pursuant to West Virginia Code § 49-6-12.

        Lastly, Petitioner Mother argues that the circuit court erred when it found that the
termination was proper because the children had remained in foster care for more than fifteen of
the last twenty-two months as a result of the parents’ inaction. In response, the children’s
guardian ad litem and the DHHR contend that termination sought under this statute was not in
error. Even two years after the case was initiated, the parents did not fully admit to their issues
and any further extension of time to establish permanency cannot be afforded to the children.

       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). We are also mindful that under
West Virginia Code § 49-6-12, the subject parent bears the burden of proving by clear and
convincing evidence that he or she would substantially comply with an improvement period.


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Under the same statute, the circuit court has the discretion to grant or deny such a motion for an
improvement period. Pursuant to Rule 15 of the West Virginia Rules of Procedure for Child
Abuse and Neglect Proceedings, determining visitation is within the circuit court’s authority. In
cases of abuse and neglect, we reiterate that the children’s welfare acts as “the polar star by
which the discretion of the court will be guided.” In Re: Clifford K., 217 W.Va. 625, 634, 619
S.E.2d 138, 147 (2005) (quoting Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W.Va. 302, 47
S.E.2d 221 (1948)).

        Upon our review, the Court finds no error in the circuit court’s denial of an improvement
period, its termination of Petitioner Mother’s parental rights, or in its navigation of the
proceedings below. We find that the delays in this case did not substantially frustrate the overall
proceedings to warrant reversing termination. See In re Edward B., 210 W.Va. 621, 634, 558
S.E.2d 620, 633 (2001). The Court finds that the circuit court was presented with sufficient
evidence upon which it based findings that Petitioner Mother would not substantially comply
with an improvement period and to, accordingly, deny her motion for an improvement period.
The Court also finds that the circuit court was presented with sufficient evidence upon which it
based its findings that there was no reasonable likelihood to believe that the conditions of abuse
and neglect could be substantially corrected in the near future and that termination was necessary
for the children’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are
directed to terminate parental rights upon such findings. West Virginia Code § 49-6-5b(a)(1)
does not nullify a circuit court’s duty to terminate parental rights under West Virginia Code § 49­
6-5(a)(6) and, accordingly, we find no abuse of discretion or error by the circuit court concerning
Petitioner Mother’s argument in that regard.

       For the foregoing reasons, we affirm the circuit court’s order terminating petitioner’s
parental rights to the subject children.

                                                                                        Affirmed.

ISSUED: March 12, 2013

CONCURRED IN BY:

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

DISSENTING:

Justice Menis E. Ketchum




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