                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                   FILED
In re: A.L.                                                                   September 5, 2017
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
No. 17-0287 (Mercer County 15-JA-140-WS)                                            OF WEST VIRGINIA




                               MEMORANDUM DECISION
        Petitioner Mother T.L., by counsel Gerald R. Linkous, appeals the Circuit Court of
Mercer County’s March 1, 2017, order terminating her parental, custodial, and guardianship
rights to A.L.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 and a supplemental
appendix. The guardian ad litem (“guardian”), Elizabeth A. French, filed a response on behalf of
the child in support of the circuit court’s order. The intervening foster parent, C.B., by counsel,
Kyle G. Lusk, Matthew A. Bradford, and Brandon L. Gray, also filed a brief in support of the
circuit court’s order.2 On appeal, petitioner argues that the circuit court erred in refusing to grant
her a post-adjudicatory improvement period prior to terminating her parental, custodial, and
guardianship rights.

        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 August of 2015, petitioner’s neighbor called the Child Abuse Hotline alleging that she
could hear a child being hit at petitioner’s residence. A Child Protective Services (“CPS”)
worker arrived at petitioner’s residence and observed welts and bruising on the child’s face. The
CPS worker also observed dried mud on the child’s face, arms, and hands and observed that the
child’s clothes were soiled and dirty.



       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
        The intervenor’s brief joins C.B.’s spouse, B.B., as an intervenor; however, the circuit
court’s October 4, 2016, order clearly grants only C.B. intervenor status below. Therefore, this
Court will consider C.B. as the sole intervenor.
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        In September of 2015, the DHHR filed an abuse and neglect petition against petitioner
asserting physical abuse inflicted upon the child. The petition asserted that the owner of the
residence where petitioner, the father, and the child resided disclosed to the CPS worker that the
child frequently had unexplained injuries. The circuit court held a preliminary hearing and found
reasonable cause to believe that the child was in imminent danger due to a nonaccidental trauma
that was inflicted upon the child while in petitioner’s custody. In October of 2015, the DHHR
filed an amended petition including information regarding prior abuse and neglect proceedings
against petitioner in Michigan and South Dakota. The amended petition asserted that petitioner,
while residing in Michigan and South Dakota, previously had her parental rights to six children
terminated, voluntarily and involuntarily. The petition also asserted that the father of the child is
a registered sex offender.

        In January of 2016, the circuit court held an adjudicatory hearing where petitioner
stipulated to abusing the child based upon excessive corporal punishment. The circuit court
accepted the stipulations and petitioner was adjudicated as an abusing parent. At the hearing,
petitioner moved for a post-adjudicatory improvement period. The DHHR and the guardian
opposed any improvement period being granted to petitioner. Shortly after the adjudicatory
hearing, the DHHR moved to terminate parental rights. The DHHR asserted that due to
aggravating circumstances, the DHHR was not required to make reasonable efforts to preserve
the family.

       In March of 2016, the circuit court held a dispositional hearing in which it heard the
testimony of the DHHR’s caseworker in this matter. After the caseworker’s testimony, the circuit
court continued the hearing to allow for the completion of a home study of a relative in another
state who wished to have the child placed with her. The child remained in the foster home.

        In February of 2017, the circuit court resumed the dispositional hearing. At the hearing,
petitioner testified that while living in Michigan, she had a prior improvement period concerning
the subject child for nine months. Petitioner further testified that two months after the
improvement period was completed she moved to West Virginia, and approximately six months
after that, this abuse and neglect petition was filed against her relating to the same child.
Petitioner also testified regarding her prior terminations and admitted that the court in Michigan
made a finding that she had beaten one of her children so severely that the child had multiple
bruises and a broken arm.

       Ultimately, the circuit court denied petitioner’s motion for a post-adjudicatory
improvement period and terminated her parental, custodial, and guardianship rights in its March
1, 2017, order.3 It is from the dispositional order that petitioner appeals.

       The Court has previously established the following standard of review:



       3
        According to the guardian and the DHHR, the child is currently in a foster home. The
permanency plan is adoption. The foster parents wish to adopt the child, and a family member
also wants to adopt the child. According to the parties, the circuit court will determine permanent
placement at a scheduled permanency hearing.
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               “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 circuit court’s findings below.

        On appeal, petitioner argues that the circuit court erred in not granting her a post­
adjudicatory improvement period prior to terminating her parental rights. We disagree. In
support of her argument, petitioner claims that she successfully completed an improvement
period in another state prior to moving to West Virginia. However, West Virginia Code § 49-4­
610(2)(B) requires that the parent “demonstrates by clear and convincing evidence, that the
[parent] is likely to fully participate in the improvement period . . . ” Further, we have often
noted that 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, 778 S.E.2d 338 (2015) (stating that “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)
(holding that “[i]t is within the court’s discretion to grant an improvement period within the
applicable statutory requirements”).

        Here, petitioner failed to present any evidence to demonstrate to the circuit court that she
would be likely to fully participate in a post-adjudicatory improvement period. Although
petitioner did receive an improvement period and services in Michigan, they did little to remedy
conditions of abuse in the home. In 2009, the Probate Court for the County of Mecosta in
Michigan found that petitioner did not benefit from the services offered. Between 2007 and
2011, petitioner’s parental rights to four of her children were terminated involuntarily and
parental rights to two of her children were voluntarily relinquished. Petitioner allegedly
completed an improvement period involving this child in another state prior to the petition being
filed in the abuse and neglect case at issue in this appeal, the circumstances surrounding the
improvement period were not similar to the case at hand. Petitioner’s prior improvement period
involved inappropriate housing, not corporal punishment. Although petitioner testified in this
matter that she would be willing to comply with a post-adjudicatory improvement period and
make all reasonable efforts to be reunified with her child, her history of using corporal
punishment and prior terminations indicate that she would be unlikely to fully participate in a
post-adjudicatory improvement period or remedy the conditions of abuse in the home.
Accordingly, we find no error below.

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         In support of her argument that she should have been granted a post-adjudicatory
improvement period, petitioner argues that she was denied the opportunity to participate in
services aimed at reunification. Although petitioner testified that she would be willing to
participate in services, pursuant to West Virginia Code § 49-4-604(a)(7)(C), the DHHR is not
required to make reasonable efforts to preserve the family when aggravating circumstances exist.
Here, aggravating circumstances do exist due to petitioner’s prior involuntary terminations.
Therefore, the circuit court did not err in finding that the DHHR did not need to make reasonable
efforts to preserve the relationship between petitioner and the child.

       Finally, petitioner argues that the circuit court erred in terminating her parental, custodial,
and guardianship rights. We do not agree. We have previously held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the
       use of intervening less restrictive alternatives when it is found that there is no
       reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code
       § 49-4-604(c)] . . . that conditions of neglect or abuse can be substantially
       corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). As discussed above,
petitioner’s parental rights to six children were voluntarily and involuntarily terminated in
Michigan and South Dakota between 2007 and 2011. In 2015, petitioner was granted an
improvement period in the state of Michigan involving the subject child. Approximately eight
months later, and after moving to West Virginia, the abuse and neglect petition at issue in this
appeal was filed against her. Petitioner clearly did not remedy all the inappropriate conditions in
the home during her prior abuse and neglect proceedings out of state. For these reasons, we find
no error in the circuit court’s termination of petitioner’s parental, custodial, and guardianship
rights.

       Lastly, this Court reminds the circuit court of its duty to establish permanency for the
children. Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings
requires:

       At least once every three months until permanent placement is achieved as defined
       in Rule 6, the court shall conduct a permanent placement review conference,
       requiring the multidisciplinary treatment team to attend and report as to progress
       and development in the case, for the purpose of reviewing the progress in the
       permanent placement of the child.

       Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the
children within twelve months of the date of the disposition order. As this Court has stated,

             [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
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       placement of an abused and neglected child following the final dispositional order
       must be strictly followed except in the most extraordinary circumstances which
       are fully substantiated in the record.

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that

               [i]n determining the appropriate permanent out-of-home placement of a
       child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49­
       4604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
       home for the child and shall consider other placement alternatives, including
       permanent foster care, only where the court finds that adoption would not provide
       custody, care, commitment, nurturing and discipline consistent with the child’s
       best interests or where a suitable adoptive home can not be found.

Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
March 1, 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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