                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

In Re: R.H.                                                                        FILED
                                                                                 March 12, 2013
                                                                             RORY L. PERRY II, CLERK
No. 12-1317 (Monroe County 11-JA-05)                                       SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
                                 MEMORANDUM DECISION

        Petitioner Mother filed this appeal, by counsel John C. Anderson II, from the Circuit
Court of Monroe County which terminated her parental rights by order entered on October 12,
2012. The guardian ad litem for the child, Sherri R. Freeman, has filed a response supporting the
circuit court’s order. The Department of Health and Human Resources (“DHHR”), by its
attorney Michael Jackson, also filed a response in support of the circuit court’s order.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        In August of 2011, the DHHR filed the petition that initiated this case. Its petition
outlined the extensive history of the parents’ involvement with Child Protective Services
(“CPS”), the parents’ extensive history of domestic violence with each other, and Petitioner
Mother’s history of drug use. In a recent domestic violence episode prior to the DHHR filing its
petition, R.H.’s father rammed his vehicle into the other family car, causing gravel to spray onto
the child standing in the yard. In retaliation, Petitioner Mother threw a dolly, one normally used
for transporting items, through the father’s windshield. During the proceedings, Petitioner
Mother and R.H.’s father each moved for a post-adjudicatory improvement period. The circuit
court denied these motions. At the dispositional hearing, they each again moved for
improvement periods. After taking the matter under advisement, the circuit court entered, in
October of 2012, its dispositional order terminating the parental rights of both parents. Petitioner
Mother appeals.

        Petitioner Mother argues that the circuit court erred by terminating her parental rights
without an improvement period. She asserts that her actions throughout the case demonstrated
that she was willing and able to correct her behavior. Petitioner Mother asserts that throughout
the case, she attended meetings for Narcotics Anonymous and anger management classes. She
further asserts that she was present at all Multi-Disciplinary Team meetings and all circuit court
hearings. Accordingly, Petitioner Mother argues that even though she was willing to fix her
negative behaviors, she was never given the opportunity to do so. In response, the child’s
guardian ad litem and the DHHR contend that the circuit court did not err in terminating
Petitioner Mother’s parental rights without an improvement period. Both highlight Petitioner
Mother’s extensive history of domestic violence without any improvement throughout the years,
despite services from the DHHR.

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       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 termination of Petitioner
Mother’s parental rights without a post-adjudicatory improvement period. Pursuant to West
Virginia Code § 49-6-12, the subject parent bears the burden of proving that he or she would
substantially comply with an improvement period and the circuit court has the discretion to grant
or deny this improvement period. The Court finds that the circuit court was presented with
sufficient evidence upon which it could have based findings that Petitioner Mother would not
substantially comply with an improvement period. Our review also supports the circuit court’s
findings that there were no reasonable grounds to believe that conditions of abuse and neglect
could be substantially corrected in the near future and that termination was necessary for the
child’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to
terminate parental rights upon such findings.

       For the foregoing reasons, we affirm the circuit court’s order terminating petitioner’s
parental rights to the subject child.

                                                                                        Affirmed.

ISSUED: March 12, 2013


CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II


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