                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

In re K.W. and W.O.                                                               FILED
                                                                               April 19, 2019
No. 18-0913 (Calhoun County 17-JA-14 and 17-JA-18)                           EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA




                              MEMORANDUM DECISION



       Petitioner Mother T.B., by counsel Betty Clark Gregory, appeals the Circuit Court of
Calhoun County’s September 5, 2018, order terminating her custodial rights to K.W. and her
parental rights to W.O.1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Lee Niezgoda, filed a response in support of the circuit court’s order. The
guardian ad litem (“guardian”), Tony Morgan, filed a response on behalf of the children in
support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in
finding that she did not successfully complete her post-adjudicatory improvement period and in
terminating her custodial and parental 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.

       On April 4, 2017, the DHHR filed an abuse and neglect petition alleging that petitioner’s
home was in a deplorable and unsanitary condition, that petitioner failed to provide the children
with proper supervision, and that the children were dirty and bruised. Additionally, the DHHR
alleged that a firearm was found in the home within the children’s reach. The DHHR also
suspected that the children were not receiving any education because they were allegedly home-
schooled, but no educational materials were in the home. Lastly, the DHHR alleged that the
children were exposed to domestic violence in the home.



       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).


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        On September 28, 2017, petitioner stipulated to the allegations of abuse and neglect as set
forth in the petition. She was subsequently granted a six-month post-adjudicatory improvement
period, which commenced on December 6, 2017, upon the filing of the family case plan.
Petitioner was provided with individual parenting training, individual therapy, domestic violence
group classes, and individual domestic violence counseling. Also as part of her improvement
period, petitioner was provided with random drug screens, a parental fitness evaluation, and
supervised visits with the children.

         On July 24, 2018, the circuit court held a dispositional hearing during which it addressed
petitioner’s motion for an extension of her post-adjudicatory improvement period as well as the
DHHR’s motion to terminate petitioner’s parental rights. The parenting service provider testified
that petitioner participated in parenting training, but failed to take responsibility for the abuse
and neglect of her children and blamed others. The service provider testified that she believed
petitioner could not make any parenting progress until she accepted responsibility for the abuse
and neglect of the children. The domestic violence group coordinator testified that petitioner
initially attended group classes, but stopped attending in May or June of 2018. The group
coordinator testified that petitioner participated in the sessions she attended, but was often more
focused on her “fight against [Child Protective Services (‘CPS’)]” than the issues of domestic
violence. The group coordinator explained that petitioner failed to complete the program because
she did not attend enough classes. The DHHR also presented testimony that petitioner continued
to engage in volatile and inappropriate relationships during her improvement period. After
separating from W.O.’s father, petitioner engaged in another violent relationship with a man who
she admitted was abusive. Following that relationship, she moved in with a registered sex
offender, who she continued to reside with at the time of the dispositional hearing. Next, a
psychologist testified regarding petitioner’s psychological evaluation. The psychologist opined
that petitioner’s prognosis for parental improvement was “extremely poor.” The psychologist
explained that the “extremely poor” prognosis was due to petitioner’s lack of acceptance of
responsibility, history of abusive relationships, and failure to benefit from services.

         Petitioner testified that she did not see any problem with her live-in boyfriend being a
registered sex offender because she knew the circumstances of his conviction. Further, she
testified that her adult son was living in the home under probation supervision and was to have
no contact with any children due to a criminal conviction of a sexual offense. Petitioner also
testified regarding her perceived problems with CPS and their alleged failures in the case.
Petitioner further testified that the parenting training provider did not think that petitioner needed
parenting classes, contrary to the provider’s testimony. Lastly, petitioner testified that she got a
vehicle the previous weekend so that she could attend her domestic violence classes and that she
and her live-in boyfriend were in the process of getting a bigger home.

       In its September 5, 2018, dispositional order, the circuit court found that petitioner failed
to successfully complete her post-adjudicatory improvement period and did not follow through
with a reasonable family case plan or other rehabilitative efforts. The circuit court found no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect in the near future because petitioner failed to acknowledge her role in the abuse and
neglect of the children. The circuit court considered seventeen-year-old K.W.’s wishes and the
guardian’s recommendation and found that the children’s best interests necessitated the

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termination of her custodial rights to K.W. and her parental rights to W.O. Consequently, the
circuit court terminated petitioner’s custodial rights to K.W. and her parental rights to W.O. in its
September 5, 2018, dispositional order.2 It is from this order that petitioner appeals.

       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, this Court
finds no error in the proceedings below.

        First, petitioner argues that the circuit court erred in finding that she failed to successfully
complete her post-adjudicatory improvement period. In support, petitioner asserts that she
“participated in random drug screens two to three times a week, parenting and adult life skills
classes once each week, therapy once a week, weekly domestic violence classes, and visits with
her children.” However, petitioner fails to acknowledge that a service provider testified that after
May or June of 2018, petitioner stopped attending domestic violence group classes and failed to
complete the program. Additionally, petitioner fails to acknowledge that evidence was presented
that she failed to take responsibility for the abuse and neglect of the children which prevented her
from making improvements.
        In regard to the circuit court’s denial of petitioner’s motion for an extension of her post-
adjudicatory improvement period, West Virginia Code § 49-4-610(6) provides that the circuit
court may grant a parent an extension of their improvement period when the parent “has
substantially complied with the terms of the improvement period; that the continuation of the
improvement period will not substantially impair the ability of the department to permanently
place the child; and that the extension is otherwise consistent with the best interest of the child.”
As discussed, petitioner failed to substantially comply with the terms and conditions of her post-
adjudicatory improvement period. Also, we have held that


       2
        K.W.’s father voluntarily relinquished his parental rights in 2017. W.O.’s father’s
parental rights were terminated. According to respondents, the permanency plan for seventeen-
year-old K.W. is to reside in her current foster home until she reaches the age of majority. The
permanency plan for W.O. is adoption in his current kinship placement.
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       [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
       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 In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). The record shows that petitioner failed to take
responsibility for her role in the abuse and neglect of the children and was often distracted with
her perceived shortcomings of CPS during parenting training. Additionally, the record shows that
after May or June of 2018, she stopped attending domestic violence group sessions and failed to
complete that program. Therefore, because she did not substantially comply with the terms and
conditions of her improvement period, petitioner did not meet the applicable burden to receive an
extension of her post-adjudicatory improvement period and the circuit court did not err in
denying her motion for such.
       Petitioner also argues that the circuit court erred in terminating her custodial rights to
K.W. and her parental rights to W.O. In support, she contends that if she had been granted an
extension of her post-adjudicatory improvement period, she would have completed “the steps to
substantially correct the issues that lead to the filing of the petition.” We disagree.

         West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate
parental and custodial 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 child’s welfare. West Virginia Code § 49-4-604(c)(3) provides
that a situation in which there is no reasonable likelihood the conditions of abuse and neglect can
be substantially corrected includes one in which the abusing parent has

       not responded to or followed through with a reasonable family case plan or other
       rehabilitative efforts of social, medical, mental health or other rehabilitative
       agencies designed to reduce or prevent the abuse or neglect of the child, as
       evidenced by the continuation or insubstantial diminution of conditions which
       threatened the health, welfare or life of the child[ren].

The evidence discussed above also supports the termination of petitioner’s parental and custodial
rights. As discussed, petitioner failed to substantially comply with the terms and conditions of
her post-adjudicatory improvement period. Additionally, petitioner engaged in violent and
inappropriate relationships during the proceedings and did not acknowledge that those
relationships posed a risk to the children. Particularly, petitioner did not recognize the potential
harm of living with a registered sex offender. Moreover, petitioner’s psychological exam
prognosis for parental improvement was “extremely poor” due to her failure to acknowledge the
conditions of abuse and neglect, her history of inappropriate relationships, and her failure to
benefit from services. Based on this evidence, it is clear that there was no reasonable likelihood
that petitioner could substantially correct the conditions of abuse and neglect and that the
termination of her custodial rights to K.W. and her parental rights to W.O. was in the children’s


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best interests. Therefore, we find no error in the circuit court’s termination of petitioner’s
custodial rights of K.W. and her parental rights of W.O.

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


                                                                                     Affirmed.




ISSUED: April 19, 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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