                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: J.F.-1, L.F., and A.F.                                                     FILED
                                                                             February 21, 2017
No. 16-0796 (Calhoun County 15-JA-43, 15-JA-44, & 15-JA-45)                     RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

                                MEMORANDUM DECISION
        Petitioner Mother J.F.-2, by counsel Andrew S. Ryan, appeals the Circuit Court of
Calhoun County’s August 1, 2016, order terminating her parental rights to J.F.-1, L.F., and A.F.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Tony Morgan, filed a response on behalf of the children supporting the circuit
court’s order. On appeal, petitioner argues that the circuit court erred in denying her an extension
of her post-adjudicatory improvement period upon erroneous findings.

        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 September of 2015, the DHHR filed an abuse and neglect petition against petitioner
and her husband that alleged that the home was filthy and unsanitary; the children suffered from
severe, chronic, and untreated head lice; there was insufficient food in the home; and petitioner
was overmedicated and unable to parent the children properly due to the medication’s effects.
The petition further alleged that the parents made the eldest child, J.F.-1, then eleven years old,
responsible for her younger siblings. The DHHR further alleged that the parents emotionally
abused J.F.-1 by holding her responsible for Child Protective Services (“CPS”) intervention. The
following month, the DHHR filed an amended petition to include additional allegations of
inappropriate discipline and the children’s therapist’s observation that the children feared their
parents.


       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 one child and petitioner share the
same initials, they will be referred to as J.F.-1 and J.F.-2, respectively, throughout this
memorandum decision.


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        In October of 2015, the circuit court held an adjudicatory hearing, during which
petitioner admitted that she did not appropriately treat the children’s lice issues, despite the
issues persisting intermittently over several years. However, although she previously admitted
that the home contained exposed wiring within the children’s reach and that photographs of the
home accurately represented its condition, petitioner denied that the home was in an unsuitable
condition. Following petitioner’s contested adjudication, the circuit court found that the parents
neglected the children by exposure to dangerous living conditions and also physically and
emotionally abused the children.

        In November of 2015, the circuit court granted the parents’ motions for post-adjudicatory
improvement periods. However, in March of 2016, the DHHR filed a motion to terminate both
parents’ improvement periods and their parental rights to the children. In April of 2016, the
circuit court held two hearings on the DHHR’s motion. The circuit court heard testimony
regarding the parent’s compliance with services from their therapist, their in-home service
provider, and the psychologist that evaluated petitioner, among other witnesses. According to the
therapist, the parents made no progress in correcting the conditions of abuse and neglect in the
home because they failed to acknowledge such abuse and neglect. Because the parents lacked
insight into the conditions, the therapist indicated that it would be impossible for them to remedy
the issues. As to the service provider, she testified that although the parents made some progress,
they continued to deny the children’s hygiene issues. According to the psychologist that
evaluated petitioner, she suffered from features of borderline personality disorder. The
psychologist also noted that petitioner’s statements during the evaluation were inconsistent with
information received from other sources and that petitioner appeared deceptive during the
evaluation. Based upon these issues, the psychologist declined to recommend any services for
petitioner.

        In May of 2016, the circuit court held a status hearing regarding the DHHR’s termination
of rights motion. That same day, both parents filed motions for extensions to their respective
post-adjudicatory improvement periods. By order entered on June 21, 2016, the circuit court
terminated the parents’ improvement periods and set the matter for disposition. In July of 2016,
the circuit court held a dispositional hearing and found that the parents “continue[d] to deny that
they were abusive and neglectful in their parenting.” As such, the circuit court ultimately
terminated the parents’ parental rights. 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

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       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). Upon our review, the Court finds
no error in the circuit court’s denial of petitioner’s motion for an extension of her post­
adjudicatory improvement period or its findings in support of that ruling.

        Pursuant to West Virginia Code § 49-4-610(6), a circuit court “may extend any
improvement period granted pursuant to subdivision (2) or (3) of this section for a period not to
exceed three months when the court finds that the [parent] has substantially complied with the
terms of the improvement period[,]” among other findings. On appeal, petitioner argues that she
established her substantial compliance with the terms of her improvement period, as evidenced
by testimony from her service providers. The Court, however, does not agree. While it is true
that petitioner exhibited an improvement in her interaction with the children and also remediated
some of the conditions in the home, this evidence is insufficient to establish that petitioner
substantially complied with the terms and conditions of her improvement period. This is
especially true in light of testimony from petitioner’s therapist who stated that petitioner made no
progress in correcting the conditions of abuse and neglect because of her “lack of ability to admit
to the problems in the home” and the fact that her lack of progress put the children at risk.

        Moreover, petitioner’s in-home service provider testified that it would not be safe for the
children to return to petitioner’s care as of April of 2016. The provider also indicated that
petitioner required additional therapy before she could correct the conditions of abuse and
neglect in the home. However, it is clear that additional therapy would have provided no benefit
because petitioner’s failure to acknowledge the issues of abuse and neglect in the home resulted
in a total lack of progress in therapy. We have previously held that

       [i]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
       of the basic allegation pertaining to the alleged abuse and neglect or the
       perpetrator of said abuse and neglect, results in making the problem untreatable
       and in making an improvement period an exercise in futility at the child’s
       expense.

In re Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). As such, it is clear that an extension to petitioner’s
improvement period was improper, given her inability to progress with her therapeutic services.

        On appeal, petitioner argues that her own history of abuse as a child is crucial in
understanding her inability to gain insight into the issues underlying this proceeding, but that the
circuit court did not consider the same. The record on appeal, however, is clear that this evidence
was presented below and properly considered. Petitioner’s therapist testified to the issues upon
which petitioner relies on appeal; namely, that petitioner’s childhood was abusive and that she
lacked insight into her own parenting deficiencies. While petitioner argues that this evidence
supported an extension of her post-adjudicatory improvement period, the Court does not agree.

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In fact, it is clear that this evidence supported denying petitioner’s motion to extend her
improvement period, as the therapist specifically testified that petitioner’s lack of insight resulted
in her inability to make any changes in her treatment of the children. According to the therapist,
as late as June of 2016, petitioner made no progress in her treatment. In fact, when the therapist
attempted to discuss issues that needed to be corrected, petitioner would instead change the
subject and basically refuse to address the issues. Ultimately, the circuit court had ample
evidence upon which to find that petitioner “continue[d] to deny that [she was] abusive and
neglectful in [her] parenting.” As such, it is clear that the circuit court did not err in denying
petitioner an extension to her post-adjudicatory improvement period.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 1, 2016, order is hereby affirmed.


                                                                                           Affirmed.

ISSUED: February 21, 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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