                                  STATE OF WEST VIRGINIA

                                SUPREME COURT OF APPEALS



In Re: J.C.                                                                        FILED
                                                                                 February 18, 2014
                                                                              RORY L. PERRY II, CLERK
No. 13-0956 (Jackson County 13-JA-1)                                        SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA



                                  MEMORANDUM DECISION

       Petitioner Mother, by counsel Susan A. Settle, appeals the Circuit Court of Jackson
County’s order entered on August 19, 2013, terminating her parental rights to her child J.C. The
West Virginia Department of Health and Human Resources (“DHHR”), by William P. Jones, its
attorney, filed a response in support of the circuit court’s order. The child’s guardian ad litem,
Laurence W. Hancock, 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 refusing to grant an
improvement period and in terminating her parental rights to J.C.

        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 December of 2011, petitioner’s parental rights to her child, D.H., were terminated,
based upon her mental illness and inability to correct the circumstances that led to neglecting
D.H. On January 8, 2013, J.C. was born and, within a week, the DHHR filed the underlying
abuse and neglect petition based upon allegations that petitioner had previously had her parental
rights involuntarily terminated and that J.C.’s father was incapable of caring for J.C. due to his
history of mental illness, hospitalization, and alcoholism. J.C. was placed into the custody of the
DHHR’s Child Protective Services (“CPS”). Petitioner waived her right to a preliminary hearing
and, after an adjudicatory hearing, was adjudicated to be an abusing parent. In May of 2013, at a
dispositional hearing, a CPS worker testified that petitioner’s parental rights were previously
terminated because she failed to complete the terms and conditions of her improvement period.
The CPS worker further testified that the conditions that led to the previous termination had not
changed, that petitioner lacked the intellectual capacity to care for an infant due to a head injury,
and that the head injury was such that petitioner’s intellectual capacity was unlikely to improve.
Petitioner requested that the circuit court grant legal guardianship of J.C. to petitioner’s aunt and
uncle, who live near petitioner.1 The circuit court denied this request and, by order entered
August 19, 2013, the circuit court terminated petitioner’s parental rights to J.C. In the order, the
circuit court found that petitioner lacked the mental capacity to care for J.C., that continuation in
the home and reunification are not in the best interest of the child, and that termination of

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    The aunt and uncle are anticipated to provide J.C.’s permanent placement, after termination.
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parental rights is necessary. 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).

        On appeal, petitioner argues two assignments of error. First, petitioner argues that the
circuit court impermissibly denied an improvement period solely based on the fact that she had
previously had her parental rights involuntarily terminated. Pursuant to West Virginia Code § 49­
6-12, a respondent parent bears the burden of proving that he or she will substantially comply
with an improvement period. Consequently, the circuit court has the discretion to deny an
improvement period if the circuit court finds that this burden has not been met. Further, this
Court has instructed circuit courts not to unnecessarily extend abuse and neglect proceedings
when we held that

        “[C]ourts are not required to exhaust every speculative possibility of parental
        improvement . . . where it appears that the welfare of the child will be seriously
        threatened, and this is particularly applicable to children under the age of three
        years who are more susceptible to illness, need consistent close interaction with
        fully committed adults, and are likely to have their emotional and physical
        development retarded by numerous placements.” Syl. Pt. 1, in part, In Re:
        R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 4, in part, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). The record reflects that
petitioner has limited parenting abilities due to a brain injury and that the injury is of the type
that will not improve, according to testimony by a CPS worker. Additionally, pursuant to West
Virginia Code § 49-6-5(a)(7)(B), the DHHR is not required to make reasonable efforts to
preserve petitioner’s family, due to her prior involuntary termination of parental rights to D.H.

        Second, petitioner argues that the circuit court should have instated the less restrictive
alternative of granting guardianship of J.C. to petitioner’s aunt and uncle without terminating
her parental rights. West Virginia Code § 49-6-5(b) outlines circumstances in which there is no

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reasonable likelihood that conditions of neglect or abuse can be substantially corrected in the
near future. Such circumstances include a parent incurring mental deficiency “of such duration or
nature as to render such parent or parents incapable of exercising proper parenting skills or
sufficiently improving the adequacy of such skills.” Id. § 49-6-5(b)(6). As described above, our
review of the dispositional hearing transcript provides testimony that petitioner’s mental
deficiency will not improve. The record and the circuit court’s findings support its conclusions
that there was no reasonable likelihood 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 find no error in the decision of the circuit court and the
termination of parental rights is hereby affirmed.

                                                                                       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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