                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
In Re: C.O.                                                                         FILED
                                                                                  February 18, 2014
                                                                               RORY L. PERRY II, CLERK
No. 13-0986 (Ohio County 12-CJA-33)                                          SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


                               MEMORANDUM DECISION
        Petitioner Mother, N.J., filed this appeal by her counsel, Peter P. Kurelac III. Her appeal
arises from the Circuit Court of Ohio County, which terminated her parental rights to C.O., now
age nine, by order entered on September 4, 2013. The guardian ad litem for the child, Joseph J.
Moses, filed a response in support of the circuit court’s order. The Department of Health and
Human Resources (“DHHR”), by its attorney Katherine M. Bond, also filed a response in
support of the circuit court’s order. Petitioner argues that the circuit court erred by denying her
motion for a post-adjudicatory improvement period and by terminating her parental rights.

        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 August of 2012, the DHHR filed an abuse and neglect petition against petitioner and
her boyfriend, J.O., who is the child’s father. The petition alleged domestic violence and alcohol
abuse in the home and that petitioner failed to protect her child from sexual abuse by J.O. At the
adjudicatory hearing in February of 2013, several witnesses testified about the child’s disclosures
concerning J.O.’s sexual abuse against her and about petitioner’s continued relationship with J.O.
despite these disclosures. The circuit court adjudicated petitioner and her boyfriend as abusive
and neglectful parents and adjudicated the child as an abused and neglected child. Several
months later, petitioner filed a motion for a post-adjudicatory improvement period. Following the
dispositional hearing in August of 2013, the circuit court found that petitioner continued her
relationship with the child’s father, despite their history of abuse and violence. The circuit court
found that, because petitioner failed to identify the areas for which she needed improvement and
because there was no reasonable likelihood to believe that the conditions could be corrected,
termination of petitioner’s parental rights was in the child’s best interests. Petitioner’s motion for
an improvement period was denied. Petitioner now 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

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       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 that the circuit court abused its discretion by not granting her
an improvement period and by terminating her parental rights. Petitioner asserts that evidence
demonstrated her ability to substantially comply with any terms in an improvement period.

        Upon our review, we find no error by the circuit court in terminating petitioner’s parental
rights without an improvement period. “‘Although parents have substantial rights that must be
protected, the primary goal in cases involving abuse and neglect, as in all family law matters,
must be the health and welfare of the children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479
S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013). Pursuant
to West Virginia Code § 49-6-12, a parent who moves for an improvement period bears the
burden of proving by clear and convincing evidence that he or she would substantially comply
with the terms of an improvement period. The circuit court then has the discretion to grant or
deny an improvement period. In the case sub judice, several witnesses testified with regard to the
boyfriend’s sexual abuse against the child. Although petitioner appears to have acknowledged
that her boyfriend physically abused her child, and although there is a history of domestic
violence in the home, petitioner continued her relationship with him. Indeed, in its dispositional
order, the circuit court included that petitioner was in disbelief and denial that J.O. abused her
child despite evidence to the contrary. These findings were sufficient to support the circuit
court’s 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 affirm.
                                                                                        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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