                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                    FILED
In Re: D.L., B.R., and S.C.                                                        March 31, 2014
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
No. 13-1045 (Kanawha County 11-JA-139, 11-JA-140, and 11-JA-141)                 OF WEST VIRGINIA




                                 MEMORANDUM DECISION

        Petitioner Mother, by counsel Jennifer Victor, appeals the Circuit Court of Kanawha
County’s September 19, 2013, order terminating her parental rights to D.L., B.R., and S.C. The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Michael
Jackson, filed its response in support of the circuit court’s order. Respondent Father, Stephen C.,
by counsel Sharon Childers, filed a response in support of the circuit court’s order.1 The guardian
ad litem, Robin Louderback, filed a response on behalf of the children also supporting the circuit
court’s order. On appeal, Petitioner Mother alleges that the circuit court erred in: terminating her
dispositional improvement period, denying her motion to reinstate her improvement period, and
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 decision is appropriate under Rule
21 of the Rules of Appellate Procedure.

         In July of 2011, the DHHR filed an abuse and neglect petition against Petitioner Mother.
The petition alleged a history of domestic violence in the presence of the children. Following the
preliminary hearing, the circuit court ordered the DHHR to retain physical custody of the
children. Additionally, the circuit court ordered that Petitioner Mother receive supervised
visitation, attend parenting education classes, and submit to random drug tests.

        In April of 2012, the circuit court granted Petitioner Mother a pre-adjudicatory
improvement period with conditions that included participating in parenting and adult life skills
classes, attending domestic violence counseling, maintaining suitable housing, maintaining
employment, submitting to random drug screens, and participating in individualized
psychological therapy.

       By order entered on March 26, 2013, Petitioner Mother stipulated that domestic violence
occurred in the presence of the children. The circuit court also found that Petitioner Mother

       1
       Stephen C. is the biological father of D.L. and has physical custody of S.C. with the
permanency plan of adoption therein. B.R.’s biological father is Joseph R. who successfully
completed his improvement period. B.R. now resides with Joseph R.
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failed to successfully complete her pre-adjudicatory improvement period and scheduled a
dispositional hearing.2 Shortly thereafter, the circuit court granted Petitioner Mother a ninety-two
day dispositional improvement period. As part of this improvement period, Petitioner Mother
was ordered to attend general education development (“GED”) classes, obtain her GED, begin
phlebotomy training, maintain housing, maintain employment, attend anger management classes,
and attend supervised visitation. In June of 2013, the circuit court held a review hearing on
Petitioner Mother’s dispositional improvement period. During the hearing, the circuit court
found that Petitioner Mother did not substantially comply with the terms of her improvement
period. As a result, the circuit court terminated Petitioner Mother’s improvement period and
scheduled a dispositional hearing.

        At the dispositional hearing on July 23, 2013, the circuit court heard testimony from two
service providers and Petitioner Mother. After considering the evidence, the circuit court
terminated Petitioner Mother’s parental rights. The circuit court found that Petitioner Mother did
not respond to services designed to reduce or prevent abuse and neglect. It is from this order that
Petitioner Mother 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
       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 Mother raises three assignments of error. Petitioner Mother’s first
and second assignments of error are substantially related and will be addressed together. First,
Petitioner Mother argues that the circuit court erred in terminating her dispositional improvement
period. Petitioner Mother claims that she was denied an opportunity to participate in the
dispositional improvement period because the DHHR failed to provide her with services.
Second, Petitioner Mother argues that the circuit court erred in denying her motion to reinstate
her dispositional improvement period.



       2
         The circuit court directed that Petitioner Mother continue to receive services pending her
dispositional hearing.
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        We begin our analysis by noting that West Virginia Code § 49-6-12(f) states that “when
the [DHHR] demonstrates that [Petitioner Mother] has failed to participate in any provision of
the improvement period, the court shall forthwith terminate the improvement period.” In the
instant matter, the circuit court was presented with evidence that Petitioner Mother failed to
comply with the terms of her improvement period. Specifically, during a review hearing of
Petitioner Mother’s dispositional improvement period, the circuit court heard testimony from
social worker Katheren DeLuca, regarding Petitioner Mother’s lack of progress in maintaining
suitable housing, obtaining her GED, and complying with other services. Further, Petitioner
Mother failed to successfully complete a one year pre-adjudicatory improvement period, which
had similar terms and conditions.

         This evidence is also sufficient to support the circuit court’s order denying Petitioner
Mother’s motion to reinstate her dispositional improvement period. West Virginia Code § 49-6­
12(c) grants circuit courts the discretion to grant an improvement period as a disposition. “It is
within the court’s discretion to grant an improvement period within the applicable statutory
requirements . . . .” Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996). This
Court has held that “‘courts are not required to exhaust every speculative possibility of parental
improvement . . . where it appears that the welfare of the child will be seriously threatened . . . .’
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., id. For these reasons, the Court finds no error in the circuit court’s order terminating her
dispositional improvement period and no abuse of discretion in denying Petitioner Mother’s
motion to reinstate her improvement period.

        Petitioner Mother also argues that she was unfairly prejudiced by the termination of her
dispositional improvement period because the DHHR failed to file a written motion to terminate
the dispositional improvement period.

       We have previously held that

               [w]here it appears from the record that the process established by the
       Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes
       for the disposition of cases involving children adjudicated to be abused or
       neglected has been substantially disregarded or frustrated, the resulting order of
       disposition will be vacated and the case remanded for compliance with that
       process and entry of an appropriate dispositional order.

Syl. Pt. 5, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001). While it is true that the
DHHR failed to file a motion to terminate Petitioner Mother’s dispositional improvement period,
the record does not support Petitioner Mother’s argument. The July 23, 2013, hearing was very
clearly a dispositional hearing, and petitioner was afforded notice as required by Rule 31 of the
West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings and the opportunity
to be heard as required by that same Rule and West Virginia Code § 49-6-5(a). Moreover, the
order granting Petitioner Mother a dispositional improvement period clearly stated that “a
dispositional hearing will be held on July 23, 2013.” Further, the DHHR filed a family case plan
on March 8, 2013, seeking the termination of Petitioner Mother’s parental rights. This plan
served to put Petitioner Mother on notice that the DHHR was seeking the termination of her

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parental rights. Petitioner Mother was present at the dispositional hearing and was permitted to
cross-examine the DHHR’s witnesses and testify on her own behalf. Therefore, the Rules were
not “substantially disregarded or frustrated” and the Court finds no error.

        Finally, Petitioner Mother argues that the circuit court erred in terminating her parental
rights. Petitioner Mother claims that the circuit court should have considered a less drastic
dispositional alternative because termination was not in the children’s best interest. The record
indicates that the circuit court was presented with sufficient evidence that there was no
reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in
the near future and that termination was necessary for the children’s welfare. West Virginia Code
§ 49-6-5(b)(3) states that a circumstance in which there is no reasonable likelihood that the
conditions of abuse and neglect can be substantially corrected includes situations where “[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 .
. . .” The DHHR initiated services with Petitioner Mother in 2011, and she was granted a pre­
adjudicatory improvement period and a dispositional improvement period. Despite nearly two
years of services, Petitioner Mother failed to meaningfully participate in her improvement
periods and has failed to remedy the circumstances that led to the filing of the instant petition.
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
September 19, 2013, order is hereby affirmed.

                                                                                            Affirmed.

ISSUED: March 31, 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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