                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: S.C. & L.C.                                                                  FILED
                                                                                  February 18, 2014
                                                                               RORY L. PERRY II, CLERK
No. 13-0784 (Calhoun County 12-JA-17 & 12-JA-18)                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                                 MEMORANDUM DECISION

        Petitioner Mother, by counsel Justin White, appeals the Circuit Court of Calhoun County’s
August 11, 2013, order terminating her parental rights to S.C. and L.C. The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee A. Niezgoda, filed its
response in support of the circuit court’s order. The guardian ad litem, Tony Morgan, filed a
response on behalf of the children supporting the circuit court’s order. The children’s father, by
counsel Anita Harold Ashley, filed a response supporting the circuit court’s order and a
supplemental appendix. On appeal, petitioner alleges that the circuit court erred in denying her an
extension to her improvement period or a new improvement period, and in failing to enter the
dispositional order within ten days of the dispositional hearing as required by Rules 36 and 38 of
the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings.

        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 March of 2012, the DHHR filed a petition against the children’s parents, though the
father later moved to be a co-petitioner and was granted that status as a non-abusing parent. The
parents had been divorced for some time prior to the petition’s filing. The petition alleged that
petitioner engaged in repeated incidents of domestic violence and stalking against the father in the
children’s presence, including breaking into the father’s home, verbal aggression, phone
harassment, obsessive behavior, threats, and false reports. Additionally, petitioner repeatedly left
her children, then ages six and nine, unsupervised while she pursued these activities. At the time,
the children resided with petitioner and regularly visited the father.

        In May of 2012, petitioner entered into a stipulated adjudication whereby she admitted
that she engaged in emotional abuse of her children as a result of her contact and interaction with
the father, which she stated was a result of her “serious mental health issues.” In the adjudicatory
order, the circuit court issued a domestic violence protective order against petitioner for the
protection of the father and children. In September of 2012, the circuit court granted petitioner an
improvement period and ordered her to attend and meaningfully participate in intense therapy to
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deal with the mental health problems identified in a prior psychological evaluation. In February of
2013, the DHHR filed a motion to revoke petitioner’s improvement period, and the circuit court
held a hearing on that motion and disposition in May of 2013.

         During that hearing, the supervisor in charge of petitioner’s parenting education and
visitation testified that, while petitioner attended these sessions, she failed to make progress due
to her continued focus on her prior marriage to the father rather than the issues that led to the
children’s removal. Petitioner’s therapist also testified that petitioner made little progress in
therapy in spite of her attendance. This therapist also provided family therapy to the children, and
testified that they were thriving in their father’s care and had improved since visits with petitioner
had ceased. The circuit court thereafter entered an order terminating petitioner’s parental rights on
August 11, 2013.

       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).

        Upon our review, the Court finds no error in the circuit court’s denial of petitioner’s
request for an additional improvement period. To begin, West Virginia Code § 49-6-12 grants
circuit courts discretion in extending improvement periods upon a finding that “the respondent
has substantially complied with the terms of the improvement period . . . .” Further, that same
code section provides circuit courts discretion in granting new improvement periods upon a
showing that the parent will fully participate in the same. The record in this matter supports the
circuit court’s denial because of petitioner’s failure to comply with the terms of her improvement
period and her failure to show, by clear and convincing evidence, that she would fully comply
with the terms of a new improvement period.

       Petitioner’s argument on this issue turns on an assertion that the circuit court erred in
finding that she failed to gain insight into how her behaviors were abusive and neglectful to her
children. In support of her argument, petitioner cites to the transcript of the dispositional hearing
wherein the circuit court stated that “[petitioner] has this insight now. She understands that these

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behaviors that she exhibited have not been productive.” However, the Court does not agree that
this isolated quote illustrates error by the circuit court, especially in light of the overwhelming
evidence that there was no reasonable likelihood that petitioner could substantially correct the
conditions of abuse in the near future.

        Importantly, just one page after the quote upon which petitioner relies, the circuit court
clarified that petitioner failed to understand that she had to move past her issues with the
children’s father in order to achieve reunification. This finding was supported by testimony from
petitioner’s therapist establishing that petitioner “had not made any progress toward her therapy
goals and objectives.” Further, the circuit court heard testimony from petitioner’s service provider
that she “could not get past her failed relationship with the [f]ather long enough to accomplish a
significant amount of work related to the parenting curriculum,” and that she “did not gain insight
into how her behaviors were abusive and neglectful to her children.” All of this evidence supports
the circuit court’s denial of an additional improvement period to petitioner. It is clear from the
record that petitioner failed to substantially comply with the terms of her improvement period and
that she was not likely to fully participate in any new improvement period, her last-minute
attempt to acknowledge her mental health issues notwithstanding. Pursuant to West Virginia Code
§ 49-6-5(b)(3), this constitutes a circumstance in which there is no reasonable likelihood that the
conditions of abuse or neglect can be substantially corrected in the near future, and the circuit
court did not err in making this finding.

        Finally, the Court declines to grant petitioner relief in regard to her contention that the
circuit court delayed entry of the dispositional order. While it is true that both Rules 36 and 38 of
the West Virginia Rules of Procedure For Child Abuse And Neglect Proceedings require entry of
dispositional orders within ten days of the dispositional hearing, the circuit court’s failure to
comply with this requirement did not result in any prejudice to petitioner. In fact, petitioner makes
no argument in support of this assignment of error beyond citing the applicable rules and stating
that the circuit court failed to comply. We have previously held that

               “[w]here it appears from the record that the process established by the
       Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes
       for the disposition of cases involving children [alleged] to be abused or neglected
       has been substantially disregarded or frustrated, the resulting order . . . will be
       vacated and the case remanded for compliance with that process and entry of an
       appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
       558 S.E.2d 620 (2001).

Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). Based upon our review, it does
not appear that the process for abuse and neglect proceedings was “substantially disregarded or
frustrated” by the circuit court’s delayed entry of the dispositional order. For these reasons,
vacating the resulting order is not appropriate.

        For the foregoing reasons, we find no error in the circuit court’s decision to terminate
petitioner’s parental rights and its August 11, 2013, order is hereby affirmed.

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                                       Affirmed.

ISSUED: February 18, 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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