                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

In re P.P.
                                                                                  FILED
No. 18-1050 (Upshur County 18-JA-01)                                            May 24, 2019
                                                                              EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


                              MEMORANDUM DECISION


        Petitioner Mother C.P.-1, by counsel Steven B. Nanners, appeals the Circuit Court of
Upshur County’s November 5, 2018, order terminating her parental rights to P.P.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”), Hunter D.
Simmons, filed a response on behalf of the child, also in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in adjudicating her as an abusing parent and
terminating her parental rights without first granting her request for 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.

        The parents have an extensive and egregious history of Child Protective Services (“CPS”)
intervention dating back over a decade. In 2007, the parents gave birth to their first child
together, C.P.-2. Shortly thereafter, the father physically abused then-ten-week-old C.P.-2 such
that the child suffered two skull fractures, a subdural hematoma, two rib fractures, fingerprint
bruising to the forehead and top of the head, and bruising to the back. C.P.-2’s injuries were so
severe that he required a partial lobotomy to relieve pressure in the skull, leaving him
permanently impaired. The DHHR filed a child abuse and neglect petition against the parents,
which ultimately resulted in the involuntary termination of petitioner’s parental rights. The father

       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). Because petitioner and a child discussed in this
matter share the same initials, we will refer to them as C.P.-1 and C.P.-2, respectively,
throughout this memorandum decision.


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voluntarily relinquished his parental rights to C.P.-2, pled guilty to child abuse resulting in
bodily injury, and was sentenced to not less than one nor more than five years of incarceration.

        Following the father’s release from incarceration in 2010, he and petitioner reunited and
had two more children together. The DHHR filed child abuse and neglect petitions against the
parents based upon their prior abuse. Petitioner’s parental rights to those children were
terminated in 2011 and 2013 after the circuit court found that she failed to acknowledge the
abuse perpetrated against C.P.-2 or remedy the circumstances of abuse. Petitioner’s parental
rights to three children from other relationships were also terminated at various times during the
proceedings, for a total of six children by that time.

       Petitioner and the father conceived their fourth child together, P.P., who was born in
December of 2017. P.P. is the only child at issue on appeal. The DHHR filed the instant child
abuse and neglect petition against the parents in January of 2018, alleging aggravated
circumstances due to their continued failure to remedy the circumstances that resulted in the
termination of their parental rights. Petitioner waived her preliminary hearing.

        In August of 2018, the circuit court held the adjudicatory hearing over the course of two
days. Testimony established that the parents’ home was clean and appropriate for the child, and
that the parents were employed. Further, petitioner appeared concerned about the child, called
the DHHR often to inquire about the child’s wellbeing, and provided care items for the child.
However, during the investigation following P.P.’s birth, petitioner denied responsibility for
C.P.-2’s injuries and expressed confusion as to why her parental rights to her six older children
had been terminated. Indeed, petitioner testified that she was treated unfairly by the DHHR in
her prior cases and that her parental rights should not have been terminated. Petitioner denied
having stated that the father was “railroaded” into pleading guilty in 2007, but continued to claim
that she did not believe that he had intentionally hurt C.P.-2. In fact, the guardian engaged
petitioner in a discussion of the same as follows:

       [Guardian]:     If you hit your head – I mean, the testimony here was, he was in
                       the father’s arms and when he sat down, he accidentally hit his
                       head on the arm; how does that break your ribs?

       [Petitioner]:   I don’t know.

       [Guardian]:     Okay. But you don’t think it was anything on [the father’s] part to
                       harm him?

       [Petitioner]:   I don’t believe so.

        Petitioner also acknowledged that the DHHR provided services to the family from 2005
through 2015, but testified that they were not helpful. She did, however, pursue domestic
violence counseling following an incident in 2016 wherein the father was convicted of domestic
battery second offense for his abuse against petitioner. After hearing evidence, the circuit court
found that the parents remained untruthful nearly eleven years later regarding the injuries
sustained by C.P.-2 and further found that they

                                                2
        failed to demonstrate that they have remedied the problems which led to the prior
        involuntary terminations sufficient to parent a subsequent-born child as they both
        continue to fail to acknowledge the prior abuse and neglect of their child and fail
        to accept any responsibility for the severe physical injury inflicted upon their son.

Accordingly, the circuit court determined that P.P. had been abused and neglected by her parents
due to their failure to correct the conditions that led to the prior termination of their parental
rights and adjudicated them as abusing parents.

         A dispositional hearing was held in October of 2018. The DHHR recommended
termination of the parents’ parental rights given their failure to acknowledge the abuse
perpetrated against C.P.-2 and their resulting inability to address the conditions of abuse that led
to the instant petition’s filing. Both parents requested post-adjudicatory improvement periods and
testified that they would comply with the terms and conditions of the same. After hearing
evidence, the circuit court denied the parents’ request for improvement periods and terminated
their parental rights. In making its findings, the circuit court stated that the facts that the parents
were employed, maintained clean and appropriate housing, and provided for the child were not
dispositive issues in this matter. Rather, the issues in the prior abuse and neglect proceedings,
and which ultimately led to the instant petition’s filing, were domestic violence and the
continued denial of severe physical abuse of C.P.-2. The circuit court found that the remedial
measures argued by the parents, such as domestic violence counseling and related courses, failed
to address the issues in this case. Moreover, the father was convicted of a domestic violence-
related incident against petitioner as recently as 2016, yet she continued her relationship with
him. Based upon the parents’ failure to acknowledge the abuse perpetrated upon C.P.-2, the court
opined that they were unable to “remedy a problem that they continue to deny exists.”
Ultimately, the circuit court determined that there was no reasonable likelihood that the parents
could correct the conditions of abuse in the near future and that termination of their parental
rights was in the P.P.’s best interest. It is from the November 5, 2018, dispositional order that
petitioner appeals.2

        The Court has previously established the following standard of review in cases such as
this:

               “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


        2
            The child was placed in the care of a foster family and the permanency plan is adoption.


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       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).

        On appeal, petitioner argues that the circuit court erred in adjudicating her as an abusing
parent. In support, petitioner cites to Syllabus Point 4 of In the Matter of George Glen B., Jr.,
205 W. Va. 435, 518 S.E.2d 863 (1999), wherein this Court held that

               [w]hen an abuse and neglect petition is brought based solely upon a
       previous involuntary termination of parental rights to a sibling pursuant to West
       Virginia Code § [49-4-605(a)(3)], prior to the lower court’s making any
       disposition regarding the petition, it must allow the development of evidence
       surrounding the prior involuntary termination(s) and what actions, if any, the
       parent(s) have taken to remedy the circumstances which led to the prior
       termination(s).

While petitioner concedes that the DHHR was required to file the instant petition based upon her
previous terminations of parental rights to her older children 3, she argues that the evidence
established that she had taken significant steps to remedy the circumstances of abuse that led to
the termination of her parental rights to her older children. Specifically, petitioner argues that
testimony established that her house was clean; P.P. was fed and provided for; there were no
drug issues in the home; she was employed; she was an active participant in the proceedings; she
called the DHHR frequently to inquire about the child’s wellbeing; and she completed domestic
violence victim counseling prior to the petition’s filing. Accordingly, petitioner argues that the
circuit court erred in finding that she was an abusing parent given that she had taken these
significant steps in remedying the circumstances which led to the termination of her parental
rights in prior proceedings. We disagree.

       We have previously noted as follows:

       At the conclusion of the adjudicatory hearing, the 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. . . . The
       findings must be based upon conditions existing at the time of the filing of the
       petition and proven by clear and convincing evidence.

In re F.S., 233 W. Va. 538, 544, 759 S.E.2d 769, 775 (2014). This Court has explained that
“‘clear and convincing’ is the measure or degree of proof that will produce in the mind of the
factfinder a firm belief or conviction as to the allegations sought to be established.” Id. at 546,


       3
         Pursuant to West Virginia Code § 49-4-605(a)(3), the DHHR shall file or join in a
petition where the parent’s parental rights to another child have previously been involuntarily
terminated.
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759 S.E.2d at 777 (citing Brown v. Gobble, 196 W. Va. 559, 564, 474 S.E.2d 489, 494 (1996)).
However, “the legislature has reduced the minimum threshold of evidence necessary for
termination where one of the factors outlined in West Virginia Code § [49-4-605(a)] is present.”4
In re Kyiah P., 213 W. Va. 424, 427, 582 S.E.2d 871, 874 (2003) (quoting George Glen B., 205
W. Va. at 437, 518 S.E.2d at 865, syl. pt. 2, in part.).

       Pursuant to West Virginia Code § 49-1-201,

       “[an a]bused child” means: (1) [a] child whose health or welfare is being harmed
       or threatened by: (A) A parent, guardian or custodian who knowingly or
       intentionally inflicts, attempts to inflict or knowingly allows another person to
       inflict, physical injury or mental or emotional injury, upon the child or another
       child in the home. Physical injury may include an injury to the child as a result of
       excessive corporal punishment.

        We first note that the record demonstrates that the circuit court allowed for the
development of evidence regarding petitioner’s prior terminations of parental rights pursuant to
George Glen B. Here, it is uncontroverted that petitioner’s parental rights to C.P.-2 were
previously terminated following the extremely violent abuse inflicted upon that child, resulting
in the child having to undergo a partial lobotomy and sustaining a permanent disability. That
instance of termination was based, in part, upon petitioner’s refusal to acknowledge that the
abuse was inflicted by the father. At each subsequent dispositional hearing, petitioner’s parental
rights to five other children were terminated based upon her continued insistence that the father
did not intentionally harm C.P.-2. Even now, nearly eleven years later, petitioner maintains this
stance. Indeed, at the adjudicatory hearing, despite the fact that petitioner was unable to provide
an explanation for C.P.-2’s injuries, she insisted that the father did not harm the child.
Petitioner’s argument that she completed counseling, maintained a suitable home, was employed,
and cared for the child do nothing to prove that she has remedied the true problem of abuse.
Rather, petitioner’s continued denial of the abuse overwhelmingly demonstrates that she failed to
remedy the circumstances which led to the prior termination of her parental rights. As such, the
circuit court rightfully found that petitioner’s continued denial rendered P.P. an abused and
neglected child, and we find no error in the circuit court’s decision to adjudicate petitioner as an
abusing parent.

         Petitioner also argues that the circuit court erred in terminating her parental rights without
first granting her an improvement period. According to petitioner, she actively participated in the
proceedings, frequently called the DHHR, and provided care items to the child throughout the
proceedings, all of which demonstrated that she was likely to participate in an improvement
period. We find no merit in petitioner’s argument.

        The decision to grant or deny an improvement period rests in the sound discretion of the
circuit court. See In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia
law allows the circuit court discretion in deciding whether to grant a parent an improvement


       4
         The list of factors outlined in West Virginia Code § 49-4-605(a) includes when “the
parental rights of the parent to another child have been terminated involuntarily.”
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period.”); Syl. Pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“It is within
the court’s discretion to grant an improvement period within the applicable statutory
requirements . . . .”). We have also held that a parent’s “entitlement to an improvement period is
conditioned upon the ability of the respondent to demonstrate ‘by clear and convincing evidence,
that the respondent is likely to fully participate in the improvement period.’” In re Charity H.,
215 W. Va. 208, 215, 599 S.E.2d 631, 638 (2004).

        Contrary to petitioner’s argument, her participation in the proceedings and frequent calls
to the DHHR do not demonstrate that she was likely to fully participate in an improvement
period. As established above, petitioner continues to deny that the father abused C.P.-2, despite
his resulting conviction and incarceration. Importantly, we have previously noted that

       [f]ailure to acknowledge the existence of the problem, i.e., the truth of the basic
       allegation pertaining to the alleged abuse and neglect or the perpetrator of said
       abuse and neglect, results in making the problem untreatable and in making an
       improvement period an exercise in futility at the child’s expense.

In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting Charity H., 215 W.
Va. at 217, 599 S.E.2d at 640). Accordingly, petitioner’s failure to acknowledge the existence of
the abuse renders the circumstances of abuse untreatable and an improvement period an exercise
in futility at P.P.’s expense. Therefore, we find no error in the circuit court’s decision to deny
petitioner an improvement period.

        We further find no error in the circuit court’s decision to terminate petitioner’s parental
rights. 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
children’s welfare. “No reasonable likelihood that conditions of neglect or abuse can be
substantially corrected” means that “the abusing adult or adults have demonstrated an inadequate
capacity to solve the problems of abuse or neglect on their own or with help.” W. Va. Code § 49-
4-604(c).

        The record establishes that petitioner demonstrated an inadequate capacity to solve the
problems of abuse or neglect. During the underlying proceedings, petitioner admitted that she
was provided services, such as parenting and adult life skills classes, during her prior child abuse
and neglect proceedings. However, petitioner testified that these classes did not help her, and she
continues to deny that the father abused C.P.-2 and remains in a relationship with him. Although
petitioner claims that she maintains housing and employment, we again note that these actions do
not prove that she has remedied the conditions of abuse and further note that “[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.” Cecil T., 228 W. Va. at 91, 717 S.E.2d
at 875, syl. pt. 4, in part (citing syl. pt. 1, in part, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114
(1980)). Given petitioner’s blatant denial of prior abuse, we agree with the circuit court’s
decision that there was no reasonable likelihood that petitioner could correct the conditions of
abuse and/or neglect in the near future and that termination was necessary for the welfare of the
child. Therefore, we find no error in the circuit court’s termination of petitioner’s parental rights.

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       For these reasons, we find no error in the decision of the circuit court, and its November
5, 2018, order is hereby affirmed.


                                                                                       Affirmed.

ISSUED: May 24, 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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