### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

FILED

In re E.E., C.E., A.E.-1, A. E.-2, N.E., and D.E. 

### April 9, 2018

EDYTHE NASH GAISER, CLERK
No. 17-0973 (Hardy County 16-JA-29, 30, 31, 32, 33 and 34) SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Mother A.E.-3, by counsel Lauren M. Wilson, appeals the Circuit Court of Hardy County’s September 28, 2017, order terminati ng her parental rights to E.E., C.E., A.E.-1, A.E.-2, N.E., and D.E. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed a response in support of th e circuit court’s order. The guardian ad litem (“guardian”), Ma rla Zelene Harmon, filed a response on behalf of the children in support of the circuit court’s order. On appeal, petitioner argue s that the circuit court abused its discretion in terminating her improvement period and in terminating her parental rights without imposing a less-re strictive al ternative.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21
of the Rules of A ppellate Procedure.

In April of 2016, law enforcement came to petitio ner’s home to take fifteen-year-old D.E. into custody pursuant to a juvenile petition and found the home in deplorable condition. In August of 2016, the DHHR offered adult life skills and parenting classes to petitioner and her husband. However, the DHHR found that petitioner required further intervention to remedy the conditions in the home. In December of 2016, the DHHR filed a petition alle ging that petitioner and her husband failed to provide their children with ad equate and sanitary housing, appropriate medical care, and ensure their children went to school. The petition further alleged that petitioner and her husband had participated in a previous abuse and neglec t case in December of 2013, during which they received an improvement peri od and extensive services that dealt with the
same issues. The circuit court did not order re moval of the children fr om petitioner’s custody.

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, b ecause petitioner and two of the children share the same initials, we refer to the petitioner as A.E.-3 and the children as A.E.-1 and A.E.-2 throughout this memorandum decision.

1At the adjudicatory hearing, petitioner sti pulated to neglect and moved for a post

adjudicatory improvement period. Petitioner’s stipul ation included: failure to maintain a suitable residence, including lice and roach infestations; e ducational neglect, for excessive absences from school; and medical neglect, including failure to a ddress dental issues and ensure prompt dental care. The circuit court then granted petitione r’s motion for a post-ad judicatory improvement period. The children remained wi th petitioner until Ma rch of 2017, when a motion for removal of the children and resulting order were filed. The motion alleged that the children’s conditions continued to worsen, including further ab sences and a severe lice infestation.

In April of 2017, the circuit court held an evidentiary hearing on the DHHR’s motion to revoke petitioner’s improvement pe riod. The children’s nurse practi tioner testified regarding the recurring lice infestation, which spanned fr om 2014 until as recently as March of 2017. The nurse testified that the only time all the children were free of lice was in April of 2017, after they were removed from petitioner’s custody. Also, th e nurse testified that an appointment was scheduled to have A.E.-1’s migraines assess ed, but petitioner did not take her to that appointment. A DHHR worker testified that th e lice issue was ongoing and petitioner’s home was roach infested and unsanitary. The DHHR worker testified that the lic e issue contributed to the truancy issue because the children needed to be clear of lice to attend school. The DHHR worked also testified that petitione r had yet to complete specific c onditions of the case plan, such as weekly doctor visits for the children or acquis ition of her driver’s lice nse. Petitioner was also resistant to accepting recommendations from the multidisciplinary team (“MDT”) and refused to open a bank account to deposit petitioner and he r husband’s $9,500 tax return or track family spending. The children’s foster parent testified sh e cleared the children of lice, and about a video she took of the lice on E.E.’s scalp before tr eatment. Finally, petitioner testified that she attempted to keep the house clean and made repair s to structural issues of the home. At the conclusion of the hearing, the circuit court found th at petitioner demonstrat ed a pattern of failing to improve and did not illustrate “a likelihood to fully participate in the improvement period.” However, the circuit court defe rred ruling on the motion to terminate the improvement period and urged petitioner to make a vast improvement in her participation.

In May of 2017, the DHHR renewed its motion to revoke petitioner’s improvement period and the circuit court held two evidentiary hearings. In suppor t, the visitation supervisor testified that the children displayed little a ffection towards petitione r during visits. A DHHR worker testified that petitioner cooperated with classes and change d residences as required by the case plan; however, the worker saw cockroaches during the last two cla sses in the new home.
This DHHR worker also testified about petitioner’s tax return f unds, which were already nearly exhausted. Petitioner prepared a “guesstimate” accounting of those funds , which included loans to multiple friends and little spent on her housi ng issues. A second DHHR worker testified that
the new home had some trash accumulated on the tw o porches, smelled strongly of cat urine, and
cat litter was thrown out next to the front porch. Ultimately, the ci rcuit court found that petitioner was unable to rectify the conditions that led to the filing of this petition a nd the previous petition, and that, even with assistance, petitioner continued to experi ence issues with maintaining a hygienic environment. The circu it court concluded that there was no reasonable likelihood that the conditions of neglect could be remedied. Thereafter, petitioner’s improvement period was revoked. The circuit court gran ted petitioner continued vis itation with th e children.

2The circuit court held a dis positional hearing and the DHHR moved for the termination of petitioner’s parental righ ts in July of 2017. A DHHR worker te stified that the issues of this petition were essentially the same as petitioner’s previous case in December of 2013, and, despite intervention, petitioner ma de little overall improvement. Pe titioner testified that she was now employed and her situation was improved after the change of residence. Ultimately, the circuit court terminated petitioner’s parental righ ts and incorporated its previous findings as a basis for the termination in its September 28, 2017 order. 2 Petitioner now appeals that order.

The Court has previously establishe d 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 sh all 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. Th ese findings shall not be set aside by a reviewing court unless cl early erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the revi ewing 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 diffe rently, 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). Upon our review, this Court
finds no error in the proceedings below.

Petitioner first argues that the circuit c ourt abused its discretion by terminating her improvement period. We disagree. West Virginia Code § 49-4-610(7) provides that “[u]pon the motion by any party, the court shall terminate any improvement period granted pursuant to this
section when the court finds that respondent has failed to fully pa rticipate in th e terms of the improvement period[.]” This Court has held that “[ i]t is within the court’s discretion to terminate the improvement period before the twelve-month time frame has expired if the court is not
satisfied that the defendant is maki ng the necessary progress.” Syl. Pt. 6, In re Katie S. , 198 W.Va. 79, 479 S.E.2d 589 (1996).

2 The parental rights of the father of A.E.-1, A.E.-2, C.E., and E.E were terminated below.
The father of D.E. and N.E. cannot care for the children due to his incarceration, however, his parental rights remain intact. According to re spondents, the children are currently placed in a kinship home with a permanency plan of adopti on or guardianship in that home. Additionally, respondents assert that an MDT w ill be held to address the parental rights of D.E. and N.E.’s
father.

3The circuit court correctly f ound that petitioner was not maki ng the necessary progress in her improvement period. Petitioner admitted that sh e failed to maintain a sanitary residence, permitted the children to be excessively absent from school, and neglected to provide prompt and consistent medical care. The entire family was infested with lice; the children continued to miss school without excuse; a nd petitioner was not taking the child ren regularly for medical checkups or recommended specialists as the case plan re quired. Moreover, almost immediately after the children were removed from petitioner’s care, th e children were rid of their lice infestation. Petitioner changed housing as requ ired by her case plan; however, that new housing acquired an odor and roaches after petitione r lived there for only a few weeks. Petitioner was afforded additional time to improve and received adult life skills and parenting classes, two major components of her case plan, before the petition was filed. Yet, those classes did not improve petitioner’s parenting. Th e circuit court is granted discreti on in terminating an improvement period, and we find that the circui t court did not abuse that discre tion in terminating petitioner’s improvement period.

Second, petitioner argues that the circuit court abused its discretion by terminating her parental rights without imposing a less-restrictiv e alternative. Petitioner asserts that she was a victim of poverty and her previously successful improvement period proves that she can be a non-abusing parent. We disagree.

West Virginia Code § 49-4-604(b)(6) provid es that the circuit court may terminate parental rights when “there is no reasonable likel ihood that the conditions of neglect or abuse can be substantially corrected in the near future an d, when necessary for the welfare of the child.” Further, West Virginia Code § 49-4-604(c)(3) provides th at there is no reas onable likelihood that the conditions of neglect or abuse can be subs tantially corrected when the parent has “not responded to or followed through with a reasonable family case plan or other rehabilitative efforts . . . designed to reduce or prevent the ab use or neglect of the child, as evidence by the
continuation or insubstantial diminution of conditions which threatened the health welfare or life of the child.” Upon these findings , the circuit court may terminat e a parent’s parental rights
without the use of le ss-restrictive alternatives. Syl. Pt. 5, In re Kristin Y. , 227 W.Va. 558, 712 S.E.2d 55 (2011).

The circuit court correctly found that there was no reasonabl e likelihood that the conditions of neglect could be s ubstantially corrected in the near future and did not abuse its discretion in terminating petitioner’s parental rights. Petitioner’s consistent need for DHHR intervention and support is evidence that petitioner could not adequately care for her children. Since her first improvement period, petitioner continually faced the same issues of lice, unsanitary housing, and excessive absences from school. Again, once the children were removed from petitioner’s care, all of these issues resolv ed for the children. After years of education and opportunity, petitioner could not pr ovide the basic needs for the ch ildren. Further, petitioner’s
assertion that she was a victim of poverty is not compelling. Petit ioner received a substantial tax refund and, by her own account, applied very little of it to remedy the circumstances that caused the neglect.

The circuit court correctly found that termin ation was necessary for the welfare of the
children and was in the children’s best intere sts. The controlling st andard that governs any

4dispositional decision is the best in terests of the children. Syl. Pt. 4, In re B.H. , 233 W.Va. 57, 754 S.E.2d 743 (2014). Petitioner consistently failed to meet the children’s needs in terms of medical treatment, education, and appropria te housing. On appeal, petitioner argues that returning the children under the supervision of the DHHR or with other community support would have been preferable to termination of her parental rights. However, both of those
situations are the exact same ci rcumstances as the first three m onths of petitioner’s improvement period. During that time, petitione r failed to provide for the ch ildren’s needs and removal was necessary for the children’s welfar e. Accordingly, we find that th e circuit court did not abuse its discretion in terminating petitioner’s parent al rights without impos ing a less-restrictive
alternative.

Lastly, because the proceedings in circuit cour t regarding the father of D.E. and N.E. are still ongoing, this Court reminds th e circuit court of its duty to establish permanency for the children. Rule 39(b) of the Rules of Proce dure for Child Abuse and Neglect Proceedings requires:

At least once every three months until permanent placement is achieved as defined in Rule 6, the court shall conduct a permanent placement review conference, requiring the multidisciplinary treatment team to attend and report as to progress and development in the case, for the purpose of reviewing the progress in the permanent pla cement of the child.

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of Procedure for Child Abuse and Neglect Proceed ings to find permanent placement for children
within twelve months of the date of the di sposition order. As th is Court has stated,

[t]he [twelve]-month period provided in Rule 43 of the West Virginia
Rules of Procedures for Child Abuse and Neglect Proceedi ngs for permanent placement of an abused and neglected child following the final dispositional order must be strictly followed except in th e most extraordinary circumstances which are fully substantiated in the record.

Cecil T. , 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that

[i]n determining the appropriate permanent out-of-home placement of a child under W.Va.Code § 49-6-5(a)(6) [ 1996] [now West Virginia Code § 49-4

- 604(b)(6)], the circuit court shall give priority to s ecuring a suitable adoptive
home for the child and shall consider other placement alternatives, including permanent foster care, only where the c ourt finds that adoption would not provide custody, care, commitment, nurturing and di scipline consistent with the child’s best interests or where a suitable adoptive home can not be found.

Syl. Pt. 3, State v. Michael M. , 202 W.Va. 350, 504 S.E.2d 177 (1998) . Finally, “[t]he guardian
ad litem’s role in abuse and ne glect proceedings does not actual ly cease until such time as the child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard , 185 W.Va. 648, 408 S.E.2d 400 (1991).

5For the foregoing reasons, we find no error in the decision of the circuit court, and its September 28, 2017, order is hereby affirmed.

Affirmed.

ISSUED : April 9, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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