                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                    FILED
In Re: K.B., B.B., N.B., P.B., & S.B.                                             May 18, 2015
                                                                               RORY L. PERRY II, CLERK
No. 14-0910 (Calhoun County 14-JA-12 through 14-JA-16)                       SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                               MEMORANDUM DECISION
        Petitioner Mother, by counsel Teresa C. Monk, appeals the Circuit Court of Calhoun
County’s August 13, 2014, order terminating her parental rights to K.B., B.B., N.B., P.B., and
S.B.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Katherine M. Bond, filed its response in support of the circuit court’s order. The guardian ad
litem for the children (“guardian”), Erica Brannon Gunn, filed a response on behalf of the
children in support of the circuit court’s order. On appeal, petitioner alleges that the circuit court
erred in denying her motion for an improvement period and in 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 February of 2014, the DHHR filed an abuse and neglect petition against petitioner.2
According to the petition, the children’s babysitter found then four-year-old K.B. touching her
vaginal area, and when asked to explain this conduct, K.B. stated that the father of P.B. and S.B.
(“boyfriend”)3 licked her there on multiple occasions. The petition alleged that petitioner failed
to remove the children or her boyfriend from the home following the sexual abuse disclosure;
that she waited several days following the sexual abuse disclosure to take K.B. to the hospital for
a physical examination; that she committed domestic violence in the children’s presence; that the


       1
         Petitioner has eight biological children; it is uncontested that, due to a Child Protective
Services (“CPS”) action in the state of Ohio, she lost custody to three of her children. Petitioner’s
parental rights to those three children are not at issue in this appeal.
       2
         The petition, and a later amended version thereof, also included allegations against the
father of K.B., B.B., and N.B., and the father of P.B. and S.B.
       3
         The relationship between petitioner and the father of P.B. and S.B. is unclear from the
record on appeal. In the record and in the briefing before this Court, he is referred to at different
times as her “boyfriend,” her “fiancé,” and her “ex-fiancé.” For both brevity and consistency, we
refer to him throughout this memorandum decision as petitioner’s “boyfriend.”
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children were inappropriately disciplined with a belt while under her care; and that she had a
history of Child Protective Services (“CPS”) involvement in the State of Ohio.

       In April of 2014, the circuit court held the adjudicatory hearing. Petitioner stipulated that
she repeatedly and excessively questioned K.B. in an attempt to coach her to alter her allegations
of sexual abuse; that she failed to protect the children from her boyfriend’s sexual abuse and
inappropriate discipline with a belt; that she knowingly permitted the children to remain in the
home following the sexual abuse disclosure; and that she engaged in domestic violence in the
children’s presence. The circuit court found that petitioner abused and neglected the children.

        Between May and July of 2014, the circuit court held four dispositional hearings. The
DHHR presented the testimony of several witnesses, including Michael Smith, a supervisor with
White Medical Services, who testified to petitioner’s extensive CPS history in Ohio and West
Virginia. Mr. Smith explained that petitioner failed to complete services under a voluntary case
plan in the Ohio CPS action, and, due to the incomplete case plan, the Ohio court transferred
custody of her three oldest children to their maternal grandmother. Dr. Timothy Saar testified
that K.B. exhibited developmental delays and sexualized behavior and that B.B. exhibited
withdrawn and depressive behavior. One of the foster parents also testified as to K.B.’s
developmental delays in speech and her sexualized behavior. It was uncontested that petitioner
completed only one visit with the children, during which the children, particularly B.B.,
exhibited negative behaviors. Prior to the circuit court’s dispositional ruling, petitioner moved
for an improvement period. The circuit court denied that motion, and it terminated petitioner’s
parental rights to the five children at issue here. It is from that order that 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
       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). With that standard in mind, we
turn to petitioner’s assignments of error.

       On appeal, petitioner first assigns error to the circuit court’s denial of her motion for an
improvement period. We have explained that West Virginia Code §§ 49-6-12(b), 49-6-12(c), and
49-6-5(c) grant circuit courts discretion in determining whether to permit improvement periods

                                                  2


in abuse and neglect proceedings. West Virginia Code §§ 49-6-12(b) and -12(c) require a parent
to prove by clear and convincing evidence that they are likely to fully participate in the same,
and West Virginia Code § 49-6-5(c) permits a circuit court to grant an improvement period as an
alternative disposition. However, we have been clear 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. 79, 479 S.E.2d 589 (1996). We have also held that
“courts are not required to exhaust every speculative possibility of parental improvement before
terminating parental rights 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). Although
petitioner argues that the circuit court erred because the conditions of abuse and neglect were
“easily correctible” and she was willing to cooperate with the DHHR, we find no error in the
circuit court’s denial of her motion for an improvement period.

        In this case, the record on appeal clearly supports that the circuit court was within its
sound discretion in denying petitioner an improvement period. Petitioner previously failed to
comply with services in the Ohio CPS action, resulting in a custody transfer of three of her older
children to her mother. In addition to her history of noncompliance with services, the circuit
court found that she did not warrant an improvement period because the acts she committed
against the children were “so egregious.” West Virginia Code § 49-6-5(a)(7)(A) states, in
relevant part, that “the [DHHR] is not required to make reasonable efforts to preserve the family
if the court determines . . . [t]he parent has subjected the child, another child of the parent or any
other child residing in the same household . . . to aggravated circumstances which include, but
are not limited to . . . sexual abuse.” As explained above, petitioner admitted that she repeatedly
and excessively attempted to coach K.B. to alter her sexual abuse allegations; that she was
violent in the children’s presence; and that she knowingly failed to protect the children from
physical and sexual abuse. Despite her assertion on appeal that “[a]fter she found out that the
abuse was taking place she kicked [her boyfriend] out of the residence and broke off her relations
with [him],” she admitted at the adjudicatory hearing in this matter that she “knowingly allowed
[her boyfriend] to remain in the family home after [K.B.] made the disclosure about sexual
abuse.” 4 As her attorney stated at that hearing, she admitted that “even knowing the allegations,
she allowed [the boyfriend] to stay in the home and would further admit that she even left the
two little girls [. . .] with [him] while she had [K.B.] in the hospital having her checked out.”
Based on the foregoing, the circuit court heard sufficient evidence to deny an improvement
period.

       Petitioner’s second and final assignment of error is that the evidence did not support
termination of her parental rights. West Virginia Code § 49-6-5(a)(6) requires termination of
parental rights when there is no reasonable likelihood that the conditions of abuse or neglect can
be substantially corrected in the near future and when necessary for the welfare of the children.

       4
         While it is uncontested that petitioner took K.B. to the hospital for a physical
examination for sexual contact, a fact upon which petitioner places great weight in her arguments
to this Court, it is also uncontested that she did not do so for three days following the initial
disclosure. During that time, she permitted the children to remain in the home with her
boyfriend.
                                                  3


Pursuant to West Virginia Code § 49-6-5(b), no reasonable likelihood that the conditions of
abuse and neglect can be substantially corrected means that “the abusing adult or adults have
demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own or
with help.” Such conditions exist when:

       The abusing parent or parents have . . . seriously injured the child physically or
       emotionally, or have sexually abused or sexually exploited the child, and the
       degree of family stress and the potential for further abuse and neglect are so great
       as to preclude the use of resources to mitigate or resolve family problems[.]

Id. at § 49-6-5(b)(5). Under the circumstances presented in this case, the circuit court did not err
in finding that there was no reasonable likelihood that the conditions of neglect or abuse could be
substantially corrected in the near future and the children’s welfare necessitated termination.
Petitioner knowingly abused and neglected her children by failing to protect them from physical
and sexual abuse. According to the testimony of Dr. Saar and a foster parent, the children
exhibited sexualized conduct, developmental delays, behavioral problems, and were withdrawn
and depressed.

        Furthermore, despite her arguments on appeal that she “removed the danger,” petitioner
admitted that she allowed her boyfriend to remain in the home without removing the children
following the initial disclosure, going so far as to leave two young girls alone in the home with
him. She also attempted to coach K.B. to alter her story, had a history of noncompliance in the
Ohio CPS action, and there were numerous reports that these children have acted out and become
emotionally withdrawn and depressed. The circuit court did not err in finding that petitioner
demonstrated an inadequate capacity to solve the problems that led to the conditions of abuse
and neglect. The evidence presented was sufficient for the circuit court to find that there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect and that termination of her parental rights was necessary for the children’s well-being.
The evidence supported the finding that the children were, at a minimum, seriously emotionally
injured, and the degree of family stress and the potential for further abuse precludes
reunification.

        Therefore, we find no error in the decision of the circuit court, and its August 13, 2014,
order is hereby affirmed.

                                                                                         Affirmed.

ISSUED: May 18, 2015

CONCURRED IN BY:

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

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