                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

                                                                                      FILED
In re L.G. and K.G.                                                                June 24, 2020
                                                                                 EDYTHE NASH GAISER, CLERK

No. 19-0940 (Lincoln County 17-JA-58 and 17-JA-59)                               SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA




                               MEMORANDUM DECISION


         Petitioner Mother N.G., by counsel L. Scott Briscoe, appeals the Circuit Court of Lincoln
County’s August 8, 2019, order terminating her parental rights to L.G. and K.G. 1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Jeffrey
S. Bowen, filed a response on behalf of the children also in support of the circuit court’s order.
Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in refusing to grant
her an extension to her post-adjudicatory improvement period. 2

       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 DHHR filed a child abuse and neglect petition against petitioner in August of 2017,
alleging that she abused drugs and alcohol. A Child Protective Services (“CPS”) worker spoke to

       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
         In her reply brief, petitioner attempts to set forth a list of six additional assignments of
error not originally included in her brief, all of which contain only headings and lack any analysis
whatsoever. Rule 10(g) of the West Virginia Rules of Appellate Procedure sets forth that a
petitioner’s reply brief must comply with the parts of Rule 10 that are applicable to respondents.
Rule 10(d) provides that a “respondent’s brief must specifically respond to each assignment of
error[.]” As such, petitioner is limited to responding to the sole assignment of error in her brief and
may not raise new assignments of error in her reply brief.
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petitioner’s neighbor, who indicated that he or she had seen the children in the road, unsupervised.
That same day, petitioner presented to the DHHR office where she was observed to have
constricted pupils and “was moving slow.” Additionally, petitioner twice entered the lobby
bathroom for periods of fifteen minutes, leaving the children unattended. Eventually, the CPS
worker was able to visit petitioner’s home and observed that there was no food or electricity.
Petitioner denied drug and alcohol abuse. However, petitioner’s family members reported that
petitioner abused her prescription medication and failed to properly feed or supervise the children.
Shortly thereafter, a CPS worker attempted to initiate a safety plan with petitioner but arrived at
the home to find the front door ajar, the children naked and dirty, and petitioner asleep in her
bedroom. The DHHR alleged that the children were in danger due to petitioner’s drug abuse and
her resulting inability to provide a safe environment or properly supervise the children.

        According to the parties, petitioner was adjudicated as an abusing parent and granted an
improvement period sometime thereafter. The DHHR filed a court summary in February of 2018,
indicating that petitioner had been arrested on January 14, 2018, for disorderly conduct,
obstructing an officer, and battery on an officer. The court summary indicated that, prior to that,
petitioner had been participating in supervised visitation and parenting and adult life skills classes.
The circuit court held a status hearing in February of 2018 wherein it was advised that petitioner
was released from incarceration on January 31, 2018. After a “lengthy discussion,” petitioner
agreed upon and executed a family case plan in which she agreed to participate in random drug
and alcohol screens, complete a seven-day detoxification program if she were to fail any drug
screens, participate in a parental fitness evaluation and comply with the resulting
recommendations, obtain and maintain employment and housing, participate in adult life skills
classes, refrain from associating with known drug abusers, refrain from engaging in illegal activity,
participate in supervised visitation, and maintain contact with the DHHR and service providers.
Petitioner moved the circuit court for increased visitation with the children, and the circuit court
granted the motion.

        The circuit court continued to hold status hearings in this matter. Petitioner tested positive
for methamphetamine and benzodiazepines around April of 2018, but denied abusing drugs,
claiming the test results were inaccurate. In July of 2018, petitioner underwent a court-ordered
psychiatric evaluation. According to the evaluation report, petitioner complained that her children
were removed from her care because a CPS worker found her sleeping. Petitioner claimed that she
was being treated unfairly, denied using drugs, and generally denied all other allegations against
her. Further, when asked what her current concerns were, petitioner responded “my kids being
taken, but I’m over it.” The evaluator opined that petitioner was not currently competent to parent
the children. The evaluator noted that petitioner minimized her difficulties despite numerous
reports of inappropriate behavior, as well as substance abuse issues indicated by both family
members and drug screens. The evaluator recommended that petitioner participate in intensive
outpatient substance abuse treatment, random drug screening, parenting and adult life skills
classes, and weekly psychotherapy sessions to address her issues with substance abuse and mood
disturbance.

       At a status hearing held in September of 2018, petitioner moved the circuit court for a
follow-up psychiatric evaluation, claiming that the July of 2018 evaluation “does not account for
anything that has occurred during her improvement period or recent counseling sessions.”

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However, the circuit court noted that petitioner was served with a new misdemeanor criminal
warrant in open court and set the child abuse and neglect matter for a dispositional hearing.
Nevertheless, the circuit court held several more status hearings.

        The circuit court held a status hearing in October of 2018. The multidisciplinary team
(“MDT”) recommended that petitioner be granted a follow-up psychiatric evaluation. The circuit
court adopted the MDT’s recommendation and also granted petitioner’s request for reduced drug
screening. In January of 2019, the psychiatric evaluator issued a new report after reviewing
additional documentation related to petitioner’s improvement period. The evaluator noted that the
records showed some improvement in petitioner’s behavior but concluded that the records did not
show improved parenting skills. As such, the evaluator did not change his prior conclusion. The
circuit court also held a status hearing in January of 2019, during which it noted that petitioner
“pleaded no contest to [driving under the influence] on January 16, 2019, . . . after spending 42
days in jail.” Petitioner also advised the circuit court that she ceased treatment with a
psychologist/psychiatrist and stopped taking her medication for her mental health treatment. The
circuit court continued to hold status hearings, and petitioner eventually requested a ninety-day
extension to her improvement period.

         In May of 2019, the circuit court held a dispositional hearing. At the close of evidence, the
circuit court found that petitioner “has been criminally convicted during her improvement period,
of which she spent more than a month in jail, and continues to exhibit the allegations contained in
the original [petition].” The circuit court further found that petitioner “wholly failed” to comply
with her improvement period and correct the conditions of abuse and neglect. Accordingly, the
circuit court denied petitioner’s motion for an extension to her improvement period and terminated
her parental rights, finding that there was no reasonable likelihood that she could correct the
conditions of abuse and/or neglect in the near future and that termination of her parental rights was
in the children’s best interests. Petitioner appeals the circuit court’s August 8, 2019, dispositional
order. 3

       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 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).


       3
        The father’s parental rights were also terminated below. The permanency plan for the
children is adoption by their grandmother.
                                                  3
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 refusing to grant her an extension
of her post-adjudicatory improvement period. Petitioner contends that, as of the dispositional
hearing, she was not testing positive for nonprescribed or illicit substances and was substantially
compliant with the terms set forth in the family case plan. Additionally, petitioner claims she
maintained the same residence for the fourteen months leading up to the dispositional hearing and
had maintained employment since February of 2019. Petitioner avers that “[w]hile [she] has
limitations beyond her control, she showed throughout these proceedings that she was willing and
able to work with the []DHHR and its providers to show she could improve and parent her
children.” Having reviewed the record, we find no error in the circuit court’s refusal to grant
petitioner an extension of her 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 . .
. .”). West Virginia Code § 49-4-610(6) provides that a circuit court may grant an extension of an
improvement period when it finds “that 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.”

        Here, the evidence demonstrates that, contrary to petitioner’s argument, she did not
substantially comply with the terms of her improvement period and, thus, was not entitled to an
extension of the same. Petitioner agreed to the terms of the family case plan in February of 2018,
and her improvement period continued until her parental rights were terminated in May of 2019—
nearly fifteen months. Despite her seeming compliance with certain aspects of her improvement
period, such as regular drug screening and maintaining housing and employment, petitioner was
arrested and incarcerated during the course of the proceedings, in violation of the term requiring
petitioner to abstain from illegal activity. Petitioner also denied having issues with substance
abuse, ceased attending sessions with her psychologist/psychiatrist, and abandoned her medication
regimen. Moreover, petitioner failed to acknowledge the significance of her behavior, as shown
by her report to the psychological fitness evaluator that the abuse and neglect case was initiated
due to a CPS worker having found her asleep in the home. Further, while petitioner contested the
evaluator’s conclusion that she was not currently competent to parent the children, the evaluator
reviewed additional documentation of petitioner’s participation in the proceedings and determined
that she had not improved her parental behavior and, thus, did not modify his conclusion. We have
previously 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 perpetrator



                                                  4
       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) (citation omitted). Lastly, pursuant
to West Virginia Code § 49-4-610(9),

       no combination of any improvement periods or extensions thereto may cause a
       child to be in foster care more than fifteen months of the most recent twenty-two
       months, unless the court finds compelling circumstances by clear and convincing
       evidence that it is in the child’s best interests to extend the time limits contained in
       this paragraph.

As noted above, petitioner’s post-adjudicatory improvement period lasted fifteen months and she
provides no argument as to how an extension of her improvement period beyond this timeframe
would be in the children’s best interests. Given petitioner’s noncompliance with the terms and
conditions of her improvement period, her refusal or inability to understand the significance of her
actions, and her failure to demonstrate that she was entitled to an extension of her improvement
period beyond the fifteen-month guideline set forth in West Virginia Code § 49-4-610(9), we find
no error in the circuit court’s refusal to grant her an extension of her improvement period.
Petitioner is entitled to no relief in this regard.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 8, 2019, order is hereby affirmed.


                                                                                            Affirmed.

ISSUED: June 24, 2020


CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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