                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS

                                                                                     FILED
In re T.W.-1                                                                       May 14, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
No. 18-0060 (Randolph County 2017-JA-051)                                            OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
        Petitioner Mother T.W.-2, by counsel J. Brent Easton, appeals the Circuit Court of
Randolph County’s December 15, 2017, order terminating her parental rights to T.W.-1.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N.
Felton-Ernest, filed a response in support of the circuit court’s order and a supplemental
appendix. The guardian ad litem (“guardian”), G. Phillip Davis, 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 terminating her parental rights without first granting 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.

        Prior to the initiation of the instant proceedings, petitioner had a history of involvement
in abuse and neglect proceedings. Petitioner was adjudicated of abuse and neglect due to her
substance abuse in 2009, but ultimately completed an improvement period and the petition
against her was dismissed. Petitioner was the subject of a second abuse and neglect proceeding
initiated in 2016, wherein her parental rights to four older children were ultimately involuntarily




                                                            
              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). Additionally, because the child and petitioner share the same
initials, we will refer to them as T.W.-1 and T.W.-2, respectively, throughout this memorandum
decision.




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terminated due to her failure to correct the conditions of abuse, including substance abuse and
failing to provide the children with a stable home, food, clothing, and other necessities.2

        In June of 2017, a mere six days after her parental rights to her four older children were
involuntarily terminated, petitioner gave birth to T.W.-1, the only child at issue in this appeal.
Shortly thereafter, the DHHR filed the instant abuse and neglect petition against petitioner,
alleging that she tested positive for amphetamines, methamphetamine, and marijuana at the
child’s birth. The DHHR alleged that petitioner denied abusing the drugs and blamed the positive
test results on over-the-counter medications. The DHHR further alleged that petitioner had a
history of child abuse and neglect, that aggravated circumstances existed because petitioner’s
parental rights to four older children were involuntarily terminated, and that no change in
circumstances occurred since the prior proceeding.

        The circuit court held an adjudicatory hearing in August of 2017. Petitioner stipulated to
the allegations contained in the petition and requested a post-adjudicatory improvement period.
The circuit court accepted petitioner’s stipulation, adjudicated her as an abusing parent, and held
her motion in abeyance until the dispositional hearing.

        In December of 2017, the circuit court held a dispositional hearing wherein it took
judicial notice of the prior abuse and neglect proceedings and the testimony and evidence
presented at the prior hearings in the instant matter. The DHHR also requested that the circuit
court take judicial notice that it had ordered petitioner to submit to a drug screen following the
adjudicatory hearing and that she failed to do so. Petitioner testified as to her willingness to
participate in an improvement period and stated that she would comply with any services
ordered. However, petitioner continued to blame her positive drug screen at the child’s birth on
over-the-counter medications. After hearing evidence, the circuit court found that petitioner
failed to demonstrate that she was likely to participate in an improvement period, made no efforts
to address her substance abuse issues or other conditions of abuse since the prior termination of
parental rights, and was unable to provide for the child’s needs. Finding that there was no
reasonable likelihood that petitioner could correct the conditions of abuse in the near future and
that termination was necessary for the child’s welfare, the circuit court denied petitioner’s
motion for a post-adjudicatory improvement period and terminated her parental rights. It is from
the December 15, 2017, dispositional order that petitioner appeals.3

              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
                                                            
              2
        Petitioner appealed the termination of her parental rights to the four older children and
this Court affirmed the circuit court’s order by memorandum decision. See In re: CW., R.W.,
N.W., and F.B., No. 17-0718, 2017 WL 5953092 (W.Va. Dec. 1, 2017)(memorandum decision).
              3
        The father’s parental rights were also terminated during the proceedings below. The
child was placed with a relative and the permanency plan is adoption by the relative.



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       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).

        In her brief on appeal, petitioner states that the circuit court erred in terminating her
parental rights without first granting her an improvement period. However, she cites to no
authority requiring circuit courts to grant parents improvement periods before terminating their
parental rights. In fact, petitioner concedes that this Court has 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 . . . .” Syl. Pt. 4, in part, In re Kristin Y., 227
W.Va. 558, 712 S.E.2d 55 (2011)(quoting Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266
S.E.2d 114 (1980)). Accordingly, we find no error in this regard.

        Moreover, petitioner has failed to present evidence that the circuit court erred in denying
her an improvement period. 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 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 [parent] to demonstrate ‘by clear and convincing
evidence, that the [parent] 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).

        While it is true that petitioner testified to her willingness to participate in the terms and
conditions of a post-adjudicatory improvement period, the overwhelming evidence supported the
circuit court’s denial of an improvement period. This is especially true in light of the fact that
petitioner tested positive for several drugs at the child’s birth, only six days after having her
parental rights to her older children involuntarily terminated due, in part, to her substance abuse.
In addition to these aggravated circumstances, petitioner continued to deny that she had a
substance abuse issue, testifying at the dispositional hearing that her positive drug screen was a
result of taking over-the-counter medication. We have held that

       [i]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
       of the basic allegation pertaining to the alleged abuse and neglect or the


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       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). Moreover, petitioner was ordered to provide a drug screen following
her adjudicatory hearing, but refused to do so. In light of the aggravated circumstances of this
case and petitioner’s continued failure to acknowledge or address the conditions of abuse, we
find no abuse of discretion in the circuit court’s denial of petitioner’s motion for a post-
adjudicatory improvement period.

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


                                                                                      Affirmed.

ISSUED: May 14, 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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