                             STATE OF WEST VIRGINIA                               FILED
                           SUPREME COURT OF APPEALS
                                                                             November 22, 2017
                                                                               EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
In re: T.N.-1, T.N.-2, T.N.-3, K.N., and H.N.                                      OF WEST VIRGINIA


No. 17-0565 (Mingo County 16-JA-25, 16-JA-26, 16-JA-27, 16-JA-28, & 16-JA-29)


                              MEMORANDUM DECISION
        Petitioner Mother A.W., by counsel Karen S. Hatfield, appeals the Circuit Court of
Mingo County’s May 22, 2017, order terminating her parental rights to T.N.-1, T.N.-2, T.N.-3,
K.N., and H.N.1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel S.L. Evans, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Cullen Younger, filed a response on behalf of the children in support of the circuit
court’s order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in
finding that termination of her parental rights was in the children’s best interests.

        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 March of 2016, the DHHR filed an abuse and neglect petition against petitioner and
the father. The DHHR alleged that petitioner had a significant history with Child Protective
Services (“CPS”) in both Kentucky and West Virginia. In 2014, CPS in Kentucky removed the
children from petitioner’s custody for one year due to allegations concerning domestic violence,
parenting issues, budgeting issues, and substance abuse. Petitioner was provided services at that
time and regained custody of the children following completion of an improvement period. The
DHHR further alleged that it received a referral in February of 2016 following an altercation
between the parents in which the father kicked petitioner and the children out of the home and
then damaged the car petitioner was driving. The referral indicated that, following the
altercation, petitioner dropped the children off at a friend’s home with no clothing, school
supplies, or money, stating that she would not be returning for them. The petition was ultimately

       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). Additionally, because several children share the same
initials, we will refer to them as T.N.-1, T.N.-2, and T.N.-3 throughout this memorandum
decision.


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based on petitioner’s mental health issues, lack of stable home for the children, and ongoing
domestic violence. Petitioner filed a response to the petition, denied all allegations of abuse and
neglect, and requested that the petition be dismissed, or alternatively, that she be granted an
improvement period.

        In April of 2016, the circuit court held an adjudicatory hearing, during which a DHHR
worker testified regarding her investigation of the referral. The DHHR worker went to the home
of petitioner’s friend who kept the children following the altercation between the parents and
observed petitioner’s damaged vehicle. The DHHR worker also interviewed T.N.-1, who stated
that she heard the parents arguing but did not see them. The DHHR worker further testified that,
in the days following the altercation, petitioner called the office repeatedly and was undecided as
to whether she wanted to voluntarily relinquish her parental rights to the children. Based upon
the evidence, the circuit court adjudicated petitioner as an abusing parent and granted her a post­
adjudicatory improvement period.

        During a dispositional hearing in May of 2017, the circuit court heard the testimony of a
pediatric nurse practitioner, a therapist, and a DHHR employee. Both the nurse practitioner and
the therapist testified that the children disclosed physical and sexual abuse by the parents. The
therapist also testified to the emotional impact on the children, including an incident in which she
was called to the foster home of five-year-old T.N.-2 after he made suicidal threats. The DHHR
employee testified that the DHHR provided petitioner with in-home individualized parenting
classes, adult life skills classes, and anger management counseling. The DHHR employee also
stated that petitioner obtained housing for her family. After hearing testimony, the circuit court
found that petitioner was unwilling or unable to provide adequately for the needs of the children,
that there was no reasonable likelihood that petitioner could correct the conditions of abuse, and
that termination of petitioner’s parental rights was necessary for the children’s welfare.
Accordingly, the circuit court terminated petitioner’s parental rights.2 It is from the May 22,
2017, 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
       2
         In addition to the termination of petitioner’s parental rights, the father voluntarily
relinquished his parental rights. According to the parties, T.N.-1 and T.N.-3 are in a foster home
together; K.N. and H.N. are in a second foster home together; and T.N.-2 is in a third foster
home. According to the DHHR, the permanency plan for the children is adoption in their current
foster homes.

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       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 that the circuit court erred in finding that termination of her
parental rights was in the children’s best interests. As support for her argument, petitioner alleges
that she complied with the terms of her improvement period and corrected the allegations
contained in the petition. Specifically, petitioner states that she was adjudicated as an abusing
parent based on mental health issues, lack of a stable home, and ongoing domestic violence.
Petitioner states that she underwent a psychiatric evaluation; obtained suitable housing; and
separated from her husband, ending the incidents of domestic violence. However, we find
petitioner’s arguments to be without merit. Contrary to petitioner’s argument, the record is clear
that petitioner did not successfully correct the conditions of abuse. Pursuant to West Virginia
Code § 49-4-604(b)(6), circuit courts are directed to terminate a parent’s parental rights upon
findings that there was no reasonable likelihood that the conditions of abuse and/or neglect could
be corrected and that termination was necessary for the children’s welfare. According to West
Virginia Code § 49-4-604(c)(3), a situation in which there is no reasonable likelihood the
conditions of abuse and neglect can be substantially corrected includes one in which

       [t]he 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[.]

        Petitioner failed to show that she was likely to correct the conditions of abuse and neglect
in the near future. Petitioner underwent a psychiatric evaluation, but this evaluation was not part
of the record on appeal and no evidence was provided showing that she complied with any of the
evaluating psychologist’s recommendations. Further, the DHHR employee testified that
petitioner would sometimes comply with services, while other times she was hard to reach.
While noting that she did obtain housing, the DHHR employee stated that this was only one part
of her improvement plan. We have previously held that it is possible for an individual to show
“compliance with specific aspects of the case plan” while failing “to improve . . . [the] overall
attitude and approach to parenting.” W.Va. Dep’t of Human Servs. v. Peggy F., 184 W. Va. 60,
64, 399 S.E.2d 460, 464 (1990). Fully participating in an improvement period necessarily
requires implementing the parenting skills that are being taught through services. In re M.M., 236
W.Va. 108, 115, 778 S.E.2d 338, 345 (2015). This is petitioner’s second time receiving services
throughout an abuse and neglect proceeding. So while petitioner may have complied with some
of her services, her behavior fails to demonstrate that she has improved her overall approach to
parenting. In fact, petitioner was arrested for battery during the pendency of the underlying
proceedings, showing that she has not corrected her violent behavior. Because the conditions of



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abuse and neglect continued uncorrected, we find that termination was in the children’s best
interests.

        Petitioner further alleges that the circuit court erred in terminating her parental rights
based, in part, upon allegations of both physical and sexual abuse that were not contained in the
petition. However, this Court finds that sufficient evidence to terminate petitioner’s parental
rights existed apart from the allegations of physical and sexual abuse. The evidence outlined
above establishes that there was no reasonable likelihood petitioner could substantially correct
the conditions of abuse and neglect and that termination was necessary for the children’s welfare.
As previously mentioned, West Virginia Code § 49-4-604(b)(6) directs circuit courts to
terminate parental rights upon such findings. Moreover, we have previously held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the
       use of intervening less restrictive alternatives when it is found that there is no
       reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code
       § 49-4-604(c)] . . . 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).

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 22, 2017, order is hereby affirmed.

                                                                                       Affirmed.

ISSUED: November 22, 2017


CONCURRED IN BY:

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




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