                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                    FILED
In re D.B.                                                                       June 24, 2020
                                                                                EDYTHE NASH GAISER, CLERK
No. 19-0993 (Ohio County 19-CJA-4)                                              SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION


        Petitioner Mother K.B., by counsel John M. Jurco, appeals the Circuit Court of Ohio
County’s September 25, 2019, order terminating her parental rights to D.B. 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, Joseph J. Moses, filed a
response on behalf of the child in support of the circuit court’s order. On appeal, petitioner argues
that the circuit court erred in terminating her parental rights instead of imposing a less-restrictive
dispositional alternative.

       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 January of 2019, the DHHR filed an abuse and neglect petition against the parents
alleging substance abuse, domestic violence, and petitioner’s exposure of the children to
inappropriate individuals. Following the petition’s filing, petitioner was incarcerated in
Pennsylvania for a short time. Upon her release, she attended a multidisciplinary team (“MDT”)
meeting and admitted to methamphetamine use. Following the circuit court’s requirement that she
submit to random drug screens, petitioner submitted to some screens in February of 2019 that were
positive for drugs, including methamphetamine. Thereafter, she ceased reporting for screens. At a
later hearing, petitioner stipulated to both substance abuse and domestic violence. Based on this
stipulation, petitioner was adjudicated as an abusing parent. The circuit court then granted

       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).


                                                  1
petitioner a post-adjudicatory improvement period that required, among other things, that
petitioner obtain mental health treatment.

         In September of 2019, the circuit court held a dispositional hearing and found that
petitioner “minimized the domestic violence” in the home during her testimony. Additionally, the
circuit court noted that petitioner claimed that her failure to comply with drug screening beyond
February of 2019 was due to transportation issues, but found that she did not request assistance
from the DHHR in obtaining the necessary transportation. Petitioner further admitted to
associating with drug users and her own relapse during the proceedings. Further, the circuit court
addressed petitioner’s failure to comply with the requirement that she seek mental health treatment,
finding that she made appointments to begin such treatment but failed to attend them. According
to petitioner, she lacked insurance or other means to pay for treatment and testified that she
“intend[ed] to go to the DHHR to apply for insurance after the [d]ispositional [h]earing.”
According to the circuit court, petitioner provided no explanation as to why “she waited so long to
seek insurance and treatment.” Petitioner also testified that she was homeless at the time of the
dispositional hearing. As to her visitation with the child, the circuit court noted that, other than
supervised phone calls early in the proceedings, petitioner “ha[d] not had any contact with [the
child] since he was removed from her custody” in January of 2019. Based upon this evidence, the
circuit court found that petitioner “willfully refused” to participate in the proceedings and failed
to substantially comply with her improvement period. Accordingly, the circuit court found that the
issues of abuse and neglect that necessitated the petition’s filing persisted through the dispositional
hearing. Further, given that petitioner was “actually . . . in a worse situation . . . than [she was] at
the commencement of the case,” the circuit court found that termination of her parental rights was
in the child’s best interests. As such, the circuit court terminated petitioner’s parental rights to the
child. 2 It is from the dispositional 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).



       2
       The father’s parental rights were also terminated below. According to respondents, the
permanency plan for the child is adoption in the current foster home.
                                                   2
         On appeal, petitioner argues that termination of her parental rights was inappropriate
because the evidence showed that there was a reasonable likelihood that she could correct the
conditions of abuse and neglect in the near future. We note, however, that the evidence petitioner
cites in support of her argument is insufficient to establish that the circuit court erred, given her
total failure to comply with services designed to remedy the conditions of abuse and neglect. The
evidence petitioner cites can be classified in one of two categories. The first is evidence of
acknowledgment of the issues of abuse and neglect. This category of evidence includes petitioner’s
citation to her acceptance of responsibility by testifying during the proceedings, as opposed to
invoking her Fifth Amendment right against self-incrimination or otherwise being “defiant”;
admission to noncompliance with some services; and acknowledgment at the dispositional hearing
that she required assistance with her substance abuse problem. While it is true that this Court has
held that acknowledgment of the conditions of abuse and neglect is a prerequisite to correcting
such conditions, it is also obvious that acknowledgment alone is woefully insufficient to correct
such issues. In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted)
(“In order to remedy the abuse and/or neglect problem, the problem must first be acknowledged.”).
If anything, petitioner’s acknowledgement of the issues of abuse and neglect serves only to make
her utter lack of compliance with the services designed to remedy those conditions more stark.
Essentially, petitioner admits on appeal that she recognized that her actions constituted abuse and
neglect of the child, but the evidence shows that, despite such acknowledgment, she failed to
undertake any steps necessary to remedy the abuse and neglect.

        The other category of evidence to which petitioner cites can best be characterized as
evidence that she believes shows that she worked toward remedying the issues of abuse and
neglect. This includes petitioner’s assertion that she and the father “had happily reconciled” by the
time the dispositional hearing was held, thereby remedying the issues of domestic violence; her
termination of a relationship with an inappropriate individual upon the MDT’s request; her release
from incarceration; and her demonstration of capacity to work and earn money. We find, however,
that this evidence is not compelling. As to her assertion that she and the father were happily
reconciled, we find that this unsupported assertion, in the absence of any evidence that either parent
availed themselves of services designed to remedy the issues of domestic violence, does not
establish that the issue was corrected. On the contrary, the fact that the parents continued their
relationship without successful completion of such services only underscores the continued threat
that domestic violence would occur. Further, while petitioner’s release from incarceration,
purported termination of an inappropriate relationship, and testimony to limited employment can
be seen as positive developments, the fact remains that petitioner cannot cite to any evidence that
she attempted to comply with specific services designed to correct the conditions of abuse and
neglect below.

        As the circuit court found, petitioner failed to take the simple step of visiting the child,
having failed to see him since his removal at the outset of the case. “We have previously pointed
out that the level of interest demonstrated by a parent in visiting his or her children while they are
out of the parent’s custody is a significant factor in determining the parent’s potential to improve
sufficiently and achieve minimum standards to parent the child.” In re Katie S., 198 W. Va. 79, 90
n.14, 479 S.E.2d 589, 600 n.14 (1996) (citations omitted). Given petitioner’s failure to visit the
child for approximately nine months, it is clear that petitioner was unmotivated to improve her
parenting ability sufficiently to regain custody of the child. Moreover, the record is clear that

                                                  3
substance abuse was a major factor in the child’s abuse and neglect, yet petitioner only complied
with the requirement that she submit to drug screens for the first month of the proceedings and, in
fact, provided positive screens in that brief period. The record also does not reflect that petitioner
completed substance abuse treatment of any kind. Similarly, petitioner failed to comply with the
requirement that she undergo mental health treatment. 3 In response to her failure to screen and
submit to mental health treatment, petitioner argues that a lack of transportation and insurance,
respectively, caused her noncompliance. According to petitioner, she attempted to remedy the
conditions of abuse and neglect during the proceedings, but did not have the resources to
accomplish this task. However, the circuit court specifically found that petitioner never contacted
the DHHR for assistance with these issues, thereby failing to fulfill her responsibilities under the
terms of her improvement period. According to West Virginia Code § 49-4-610(4)(A), when a
parent is granted an improvement period “the [parent] shall be responsible for the initiation and
completion of all terms of the improvement period.” Here, petitioner failed to fulfill this
responsibility by taking no affirmative steps to contact the DHHR in order to facilitate the
implementation of her services. In short, the circuit court’s finding that petitioner “willfully”
refused to participate in services during the proceedings is supported by overwhelming evidence.

        According to West Virginia Code § 49-4-604(c)(3) (2019), 4 circumstances in which there
is no reasonable likelihood conditions of neglect or abuse can be substantially corrected include
when “[t]he abusing parent . . . [has] not responded to or followed through with a reasonable family
case plan or other rehabilitative efforts . . . designed to reduce or prevent the abuse or neglect of
the child.” Given the overwhelming evidence of petitioner’s failure to comply with services, it is
clear that the circuit court did not err in finding that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected. Moreover, as the circuit court
noted, petitioner not only failed to remedy these conditions but, in fact, allowed her situation to
deteriorate to the point that she was homeless by the time the dispositional hearing was held. Given
the evidence that the conditions at issue actually worsened during the proceedings, it is clear that
the circuit court similarly did not err in finding that termination of petitioner’s parental rights was
necessary for the child’s welfare. Pursuant to West Virginia Code § 49-4-604(b)(6) (2019), circuit
courts are permitted to terminate parental rights upon such findings. Moreover, this Court has held
that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [West Virginia


       3
          In support of this assignment of error, petitioner argues that she was not provided a
psychological evaluation despite the fact that she was to be provided one as a term of her
improvement period. Given petitioner’s failure to comply with any of the requirements of her
improvement period, including the required mental health treatment, it is unnecessary to address
this argument. Contrary to petitioner’s argument that the failure to provide this service somehow
contributed to the termination of her parental rights, the record instead shows that it was
petitioner’s willful refusal to comply that resulted in such termination. As such, we find that she
is entitled to no relief on this issue.
       4
        Although the Legislature amended West Virginia Code § 49-4-604 effective June 5, 2020,
including renumbering the provisions, the amendments do not impact this case.
                                                  4
        Code § 49-4-604 (2019)] . . . may be employed without the use of intervening less
        restrictive alternatives when it is found that there is no reasonable likelihood under
        [West Virginia Code § 49-4-604(c) (2019)] . . . 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 such, it is clear that the
circuit court did not err in terminating petitioner’s parental rights. 5

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 25, 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




        5
         In support of her lone assignment of error, petitioner also argues that because the guardian
opposed the termination of the father’s parental rights to an older child who is not at issue on
appeal, the guardian “saw some fatherly aspects in” the father. Although unclear, it appears that
petitioner attempts to connect this speculative assumption about the guardian’s motivations to an
assertion that her own rights to D.B. should not have been terminated. Not only does this argument
lack any logical application to the termination of petitioner’s parental rights, it also ignores the fact
that the guardian took this position because the older child, who was seventeen years old at the
time of the dispositional hearing, expressly indicated that he did not wish for the father’s rights to
be terminated. Simply put, nothing about this set of circumstances has any bearing on the circuit
court’s termination of petitioner’s parental rights.
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