1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re L.J. and I.J

.

No. 21

- 0 8 1 8 ( Kanawha County 20

- JA

- 223 and 20

- JA

- 224 )



### MEMORANDUM DECISION

Petitioner Mo ther G.S

. , by counsel Sandra K. Bullman

, appeal s the Circuit Court of

Kanawha County’s September 14

, 20 21, order terminating h er parental rights to L.J. and I.J

. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and Katherine A. Campbell , filed a response in support of the circuit court’s order

. The guardian ad litem (“guardian”)

, J. Rudy Martin , filed a response on behalf of the child ren in support

of the circuit court’s order

. On appeal, petitioner argues that the circuit court erred in denying h er motion for an improvement period and terminating h er parental rights

.

This Court has considered the parties’ briefs and the record on appea l. 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 ques tion 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.

Prior to the instant proceedings, the DHHR received a referral in January of 2020 alleging that petitioner’s home lacked electric ity and water, and the family was living in a hotel room as a

result. In lieu of a temporary protection plan for the children, petitioner granted temporary guardianship of the children to a cer tified kinship home . The next month, the Kanawha County Family Court held a hearing wherein petitioner did not appear. At the hearing, the court granted

the relatives full guardianship of the children.

In May of 2020, the DHHR filed an abuse and neglect p etition alleging that petitioner exposed the child ren , then ages eight and ten

, to repeated sexual abuse by her boyfriend

. According to the petition, the children stated that they told petitioner , who took no action to prevent the sexual

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). 

### FILED
March 9, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 abuse and did not believe the children. The DHHR alleged that when confronted with the allegations, petitioner denied that any sexual abuse occurred. The children further disclosed that

the petitioner and the boyfriend were abusive to each other, and petitioner was left unconscious

after at least one incident. The children also stated that the boyfriend was an alcoholic, and they

did not feel safe with either petitioner or her boyfriend. According to the petition, petit ioner’s home also lacked electricity or running water. The DHHR further alleged that petitioner and the father failed to provide the children with the necessary food, clothing, supervision, housing, and financial

support.

After some delays due to scheduli ng, the circuit court held an adjudicatory hearing in September of 2020. However , the DHHR requested a continuance to allow petitioner to complete a psychological evaluation. In November of 2020, the DHHR filed a summary report indicating

that petitioner had tested positive for methamphetamine and amphetamine in August of 2020 and September of 2020. The DHHR report further indicated that petitioner failed to respond to repeated communications from service providers since her positive drug screen s.

The circuit court again granted a continuance in January of 2021 as the parents’ psychological evaluations were still incomplete. The court held another hearing in April of 2021 wherein counsel for the parties advised the circuit court that they had be en unable to access transcripts from the children’s Child Advocacy Center interviews, and the matter was continued. The next month, the DHHR filed a report indicating that petitioner had remained noncompliant with her adult life skills and individualized p arenting classes.

In June of 2021, the circuit court held an adjudicatory hearing wherein petitioner did not appear but was represented by counsel. A Child Protective Services (“CPS”) worker testified that the children disclosed being physically abused by petitioner and her boyfriend

. The worker noted that the children discussed that petitioner and her boyfriend used a belt on various parts of their body, leading to bruising. The worker further testified that L.J. stated that the boyfriend would spit

in he r face when he was angry. The worker stated that the children disclosed witnessing a domestic altercation between the boyfriend and petitioner, leading the children to call for an ambulance after petitioner was knocked unconscious. The worker recalled that the children also disclosed separate incidents of sexual abuse by the boyfriend that included him touching their genitals. As a result,

t he circuit court adjudicated petitioner as an abusing parent, finding that she had physically abused

the children and permitted her boyfriend to physically and sexually abuse the children. The circuit court further found that the father was not present in the children’s lives, had failed to provide financial or emotional support for the children, and adjudicated him as an abusing parent.

The circuit court held a dispositional hearing in September of 2021 during which a CPS case manager testified that petitioner was provided services throughout the proceedings until June

of 2021. The case manager noted that petitioner had only sporadically complied with services , as she failed to regularly participate in adult life skills and individualized parenting classes and failed

to attend h er scheduled psychological evaluation

. The case mana ger further stated that petitioner claimed the children when filing her taxes even though the children were in a guardianship at the time, and she had not been caring for them during the prior six months. The case manager stated that petitioner did not mai ntain contact with the DHHR after her services were terminated in June

of 2021. The case manager testified that the DHHR recommended petitioner’s parental rights be3 terminated with no post

- termination visitation due to petitioner’s noncompliance with servi ces. Next, petitioner testified she had ceased using controlled substances, including methamphetamine, approximately two months prior to the hearing and did so on her own. Petitioner maintained that she did not believe that her boyfriend had sexually abuse d the children and acknowledged that she continued to maintain a relationship with him despite the allegations of sexual abuse . Finally, petitioner acknowledged that she was unemployed.

Ultimately, the circuit court denied petitioner’s motion for an impro vement period and

terminated h er parental rights. The court found that petitioner had failed to comply with services

and continued h er drug abuse. The court further found that petitioner failed to appear for her psychological evaluation and had claimed the children on her tax return despite not having custody

of the children . Finally, the court found that petitioner failed to acknowledge that her boyfriend sexually abused the children and continued to maintain a relationship with him

. The circuit court’s decision was memorialized by its September 14, 2021 , order. Petitioner now appeals that order. 2

The Court has previously held :

“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 t he 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. 8 9, 717 S.E.2d 873 (2011).

On appeal, p etitioner argues that the circuit court erred in denying h er motion for a post

adjudicatory improvement period because she was “a drug addict” who “required additional time to remedy her addiction.” Petitioner contends that she had ceased using controlled substances prior to the dispositional hearing, cooperated with some services, and had maintained housing. As such, peti tioner argues that she had demonstrated her willingness to participate in an improvement period. We disagree

.

This Court has held that “a parent charged with abuse and/or neglect is not unconditionally entitled to an improvement period.” In re Emily , 208 W. Va. 325, 336, 540 S.E.2d 542, 553 (2000). West Virginia Code § 49

- 4

- 610(2)(B) provides that the circuit cour t may grant a parent a post

adjudicatory improvement period when the parent “demonstrates, by clear and convincing

2 The father ’s parental rights were also terminated below . The permanency plan for the

child ren is adoption by their foster family

.4 evidence, that the [parent] is likely to fully participate in the improvement period.” “This Court has explained that ‘an improvement period in the context of abuse and neglect proceedings is viewed as an opportunity for the

. . . parent to modify his/her behavior so as to correct the conditions of abuse and/or neglect with which he/she has been charged.’” In re Kaitlyn P. , 225 W. Va. 123, 126, 690 S.E.2d 131, 134 (2010) (citation omitted). However, the circuit court has discretion to deny an improvement period when no improvement is likely. See In re Tonjia M.

, 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002). W e 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 sa id 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) (citation omitted).

Contrary to petitioner’ s argument, we see no error in the circuit court’s determination that petitioner was not likely to fully participate in an improvement period. The circuit court found that petitioner failed to make significant progress during the fifteen

- month course of th e proceedings, including the fact that she minimized responsibility for abusing and neglecting the child ren

. The

circuit court found that petitioner failed to acknowledge that her boyfriend sexually abused the

children and continued to maintain a relations hip with him

. Further, t he record indicates that petitioner only sp oradically attended he r adult life skills and individualized parenting classes until

services were discontinued due to h er noncompliance in June of 2021. Petitioner also failed to

attend h er psychological evaluation and remained unemployed throughout the proceedings

. Finally, petitioner tested positive for methamphetamine and amphetamine in August of 2020 and September of 202 0, several months after the DHHR filed the instant petition

. Petitioner testified at the dispositional hearing in September of 2021, that she had ceased using methamphetamine two months prior to said hearing. Although petitioner asserts that she ceased abu sing controlled

substances on her own and without the assistance of the DHHR, the record contains no evidence corroborating this claim. Accordingly , we find no error in the circuit court’s decision to deny petitioner a post

- adjudicatory improvement period.

Moreover, the evidence be fore the circuit court supports its termination of petitioner’s parental rights. As set forth above, the DHHR presented evidence of petitioner’s noncompliance with services throughout the proceedings, including h er lack of participation in adult life skills and individualized parenting classes and h er continued substance abuse

. West Virginia Code § 49

- 4

- 604( c )(6) permits a circuit court to terminate parental rights upon finding that “there is no

reasonable likel ihood that the conditions of neglect or abuse can be substantially corrected in the near future” and that termination is necessary for the welfare of the child ren . With these parameters in mind, the record clearly supports the circuit court’s finding that there was no reasonable likelihood petitioner could substantially correct the conditions of abuse and neglect given h er untreated substance abuse issues and refusal to acknowledge the conditions of abuse and neglect

.

Although petitioner also takes issue with the timeframe from adjudication to termination, arguing that s he should have been given additional time and an opportunity to demonstrate that5 s he could correct the conditions of abuse and neglect, we have previously held that “[c]ourts are not required to exhaust every speculative possibility of parental improvement .

. . where it appears that the welfare of the child will be seriously threatened.” Cecil T. , 228 W. Va. at 91, 717 S.E.2d at 875, S yl. P t. 4, in part ( citation omitted ). Further, we have held that

“ [t] ermination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, [West Virginia Code § 49

- 4

- 604] may be employed without the use of intervening less restrictive

alternatives when it is found that th ere is no reasonable likelihood under [West Virginia Code § 49

- 4

- 604( d )] that conditions of neglect or abuse can be substantially corrected.” Syllabus point 2, In re R.J.M. , 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y. , 227 W. Va. 55 8, 712 S.E.2d 55 (2011). As such, we find no error in the termination of petitioner’s parental rights.

For the foregoing reasons, we find no error in the decision of the circuit court, and its September 14, 2021 , order is hereby affirmed.

Affirmed.

ISSU ED : 

### March 9, 2022

CONCURRED IN BY :

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton Justice Alan D. Moats sitting by temporary assignment