                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                 FILED
In re: Z.H. and B.H.
                                                                            November 22, 2017
                                                                              EDYTHE NASH GAISER, CLERK
No. 17-0501 (Webster County 16-JA-27 & 16-JA-28)                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Mother S.H. by counsel Andrew Chattin, appeals the Circuit Court of Webster
County’s May 2, 2017, order terminating her parental and custodial rights to Z.H. and B.H.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”),
Christopher G. Moffatt, filed a response on behalf of the children in support of the circuit court’s
order. On appeal, petitioner argues that the circuit court erred in terminating her parental and
custodial rights without first granting an improvement period.

        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 April of 2016, the DHHR filed an abuse and neglect petition against petitioner and the
father. The petition alleged that police were called to the parents’ home due to a domestic
violence dispute in which petitioner alleged that the father was not the true biological father of
B.H. The situation escalated and petitioner instructed the children to go to their bedroom, shut
the door, and to not come out “no matter what.” The father became enraged at petitioner’s
allegations, drove to the alleged father’s house, and fired shots into the home. Following the
incident, both parents tested positive for controlled substances. In particular, petitioner tested
positive for oxycodone, THC, and buprenorphine. The petition also alleged that the parents were
previously involved in abuse and neglect proceedings in 2010, due to instances of domestic
violence and substance abuse. During those proceedings, petitioner successfully completed an
improvement period and regained custody of the children.


       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).



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        In May of 2016, the circuit court held an adjudicatory hearing during which petitioner
stipulated to the allegations contained in the petition. As such, the circuit court adjudicated
petitioner as an abusing parent.2

         In March of 2017, the circuit court held a dispositional hearing. The DHHR presented the
testimony of a Child Protective Services (“CPS”) worker who testified that the DHHR
recommended termination of petitioner’s parental and custodial rights because she had not
corrected the circumstances of abuse and neglect. The CPS worker testified that the DHHR
provided petitioner services in the 2010 proceedings but that she did not “continue to incorporate
what [she] learned” as evidenced by the fact that she was in proceedings yet again for the same
circumstances. In fact, the CPS worker stated that petitioner tested positive for controlled
substances twice throughout the period between the adjudicatory and dispositional hearing. The
CPS worker stated that petitioner was unlikely to correct these conditions in the foreseeable
future. The CPS worker also noted that she considered the children’s bond with petitioner in
making her recommendation. Petitioner testified on her own behalf and stated that since the
incident giving rise to the petition, the father had filed for divorce, which she was not contesting.
Petitioner also stated that she began working forty hours per week; maintained her own home;
and participated in parenting services, drug screens, and visitation with the children. Petitioner
testified that she tested positive for controlled substances twice due to a misunderstanding with
her doctor, who had proscribed medicine that caused her to test positive. Petitioner testified that
she did not use drugs during the years between the two proceedings, except for prescribed
medication. She also stated that she did not begin abusing drugs again until a week before the
petition was filed. After hearing the testimony, the circuit court found that petitioner’s testimony
regarding her positive drug screens was not credible and that domestic violence and substance
abuse were current issues in the family. The circuit court further found that petitioner failed to
establish that she could substantially correct the conditions of abuse and neglect. As such, the
circuit court denied petitioner’s motion for an improvement period and terminated her parental
and custodial rights to the children in its order dated May 2, 2017.3 It is from this dispositional
order that petitioner appeals.

       This 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

       2
         While the parties refer to petitioner as “an abusive and neglectful parent,” we note that
the phrase “neglectful parent” does not appear in the statutory framework for abuse and neglect
proceedings in this State. Instead, West Virginia Code § 49-1-201 defines “abusing parent” as “a
parent . . . whose conduct has been adjudicated by the court to constitute child abuse or neglect
as alleged in the petition charging child abuse or neglect.” (Emphasis added.) As such, the Court
will refer to petitioner as an “abusing parent” in this memorandum decision, as that phrase
encompasses parents who have been adjudicated of abuse and/or neglect.
       3
      The parents’ parental and custodial rights were terminated below. According to the
DHHR, the children were placed with their maternal grandparents with a goal of adoption in that
home.
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       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).

        Petitioner argues on appeal that the circuit court erred in terminating her parental rights
without first granting her an improvement period. We disagree. We have often noted that the
decision to grant or deny an improvement period rests in the sound discretion of the circuit court.
See In re: M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015) (holding that “West Virginia
law allows the circuit court discretion in deciding whether to grant a parent an improvement
period”); Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (holding that
“[i]t is within the court’s discretion to grant an improvement period within the applicable
statutory requirements”).We have also held that a parent’s “entitlement to an improvement
period is conditioned upon the ability of the [parent] to demonstrate ‘by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period . . . .’”In re:
Charity H., 215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004).

        The record is clear that the circuit court did not err in denying petitioner an improvement
period. Petitioner argues that her lifestyle changes following the filing of the petition
demonstrate her likelihood to fully participate in an improvement period. Specifically, petitioner
mentions that she did not participate in any more instances of domestic violence and only tested
positive for medications prescribed by her doctor. However, petitioner cites to nothing in the
record indicating that she provided the circuit court with proof of her prescriptions. Further, the
circuit court found petitioner’s explanation regarding her positive drug screen to be
unpersuasive. We have previously held that “[a] reviewing court cannot assess witness
credibility through a record. The trier of fact is uniquely situated to make such determinations
and this Court is not in a position to, and will not, second guess such determinations.” Michael
D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997). Additionally, the CPS
worker testified that petitioner failed to incorporate any appropriate parenting techniques, as the
DHHR provided services to petitioner in the past and yet she continued in the same abusive
behavior in the underlying proceedings. We have previously held that it is possible for a person
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). Contrary to petitioner’s argument that she
corrected the conditions of abuse, sufficient evidence establishes that she did not improve her
approach to parenting and continued to test positive for controlled substances after the petition


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was filed. As such, we find no error in the circuit court’s denial of petitioner’s motion for an
improvement period.

        Moreover, we find no error in the circuit court’s termination of petitioner’s parental and
custodial rights. We have previously held that “[t]ermination . . . may be employed without the
use of intervening less restrictive alternatives when it is found that there is no reasonable
likelihood . . . that conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 7, in
part, In re Katie S., 198 W.Va. at 82, 479 S.E.2d at 592 (1996). West Virginia Code § 49-4­
604(c)(3) clearly indicates that 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[.]

        Contrary to petitioner’s argument, the record demonstrates that petitioner did not
successfully follow through with rehabilitative efforts. The DHHR provided petitioner with
services to assist with domestic violence and substance abuse issues in prior proceedings.
However, petitioner failed to implement the services and proceedings were initiated against her
for the same issues. Further, petitioner tested positive for controlled substances twice in the
current proceedings without a persuasive explanation. As such, we find no error in the circuit
court’s decision terminating petitioner’s parental and custodial rights upon a finding that there
was no reasonable likelihood that she could correct the conditions of abuse and/or neglect and
that termination was necessary for the children’s welfare. Pursuant to West Virginia Code § 49­
4-604(b)(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 its
May 2, 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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