### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED In re A.S. 

### February 23, 2018

No. 17-0811 (Kanawha County 17-JA-99) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Mother K.S., by couns el Herbert L. Hively, II, a ppeals the Circuit Court of Kanawha County’s August 2, 2017, order term inating her parental rights to A.S. 1 The West Virginia Department of Health and Huma n Resources (“DHHR”), by counsel Michael L. Jackson, filed a response in su pport of the circuit court’s order. The guard ian ad litem (“guardian”), Jennifer R. Victor, filed a response on behalf of the child in support of the circuit court’s order and a supplemental appendix. On a ppeal, petitioner argues that the circuit court erred in adjudicating her as an abusing parent and denying her a post-adjudicatory improvement period. 2

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 February of 2016, the DHHR filed an abus e and neglect petition that alleged the parents neglected the child. According to the pe tition, the parents were arrested earlier that month and charged criminally with child neglect creating risk of injury when law enforcement found the parents and the child in a residence described as “dangerous and unfit for human habitation.” The petition alleged that the home was filled with mol d, mildew, unprotected electrical connections and an exposed oven face. Additionally, there were roaches and roach droppings on every surface in the kitchen, and th e dishwasher was filled with mold, mildew, insects, and insect droppings . Officers also discovered drug paraphernalia, including used needles, within the child’s reach. Additionally, the petition alleged a history of domestic violence between the parents and drug use. Specificall y, the DHHR indicated that the prior month, the

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).

2 On appeal, petitioner does not raise a spec ific assignment of error regarding the termination of her parental rights.

1father tested positive for benzodiazepines an d opiates, which required the administration of Narcan. Further, petitioner tested positive for a number of drugs during her pregnancy with the child, who also tested positive fo r drugs at birth. Finally, the pe tition alleged that petitioner’s rights to an older child were previously in voluntarily terminated, which petitioner later confirmed. During a later prelimin ary hearing, the circuit court heard testimony from a law enforcement officer concerning the conditions in the home and also admitted into evidence the criminal complaints filed against the parents.

In March of 2017, the circuit court held an adjudicatory hearing, during which it heard testimony from the father and the child’s patern al grandmother. The circuit court admitted a DHHR court summary into evidence and also c onsidered all previously-introduced evidence. Based upon the evidence, the circuit court fo und that the home from which the child was

removed “was unsafe and not suit able for human habitation.” A ccording to the evidence, the

home “was contaminated with rodent and ins ect feces and mold[,]” in addition to being “structurally dangerous, with missing flooring, n onfunctioning plumbing, a nd rotting cabinetry.” Moreover, the circuit court f ound that the home “was covered with spoiled food and open garbage” and also “contained drug paraphernalia such as straws, razor blades and matches.” Based upon this evidence, the circuit court found that the parents “knowingly exposed the child to a filthy, dangerous environment.” As such, th e circuit court adjudicated petitioner as an abusing parent.

In May of 2017, the circuit court held a dispositional hearing. Petitioner moved for a post-adjudicatory improvement period, but the ci rcuit court ultimately denied that motion. The circuit court based this ruling, in part, upon evidence that petiti oner was not “willing to acknowledge any parenting deficiencies amenable to correction.” Based upon this evidence, the circuit court found that pe titioner “failed to demonstrate that [s he was] likely to comply with the terms and conditions of a post-adjudicatory impr ovement period.” Thereafte r, the circuit court terminated petitioner’s parental rights to the child. 3 It is from the dis positional order that petitioner appeals.

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

3 In addition to the termination of petitioner’s parental rights, the pa rental rights of the

father to the child were terminated below. Acco rding to respondents, the permanency plan for the child is adoption in the current relative placement.

2because 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, the Court finds no error in the proceedings below.

On appeal, petitioner argues th at the circuit court erred in adjudicating her as an abusing parent. In support of this assignment of error, petitioner argues that the DHHR failed to present any evidence of drug use or domestic violence. She further argues that the home in question belonged to the paternal grandmother and, accordingl y, “the . . . DHHR did [not] show that [she] lived in that home with the child and exposed he r to those conditions . . . .” Moreover, petitioner argues that law enforcement responded to the home several days prior to removal, but permitted the child to remain in the home, thus establishing that it was appropriate for the child. We do not find these arguments compelling.

In regard to the burden of proof at adjudication, we have held as follows:

“W.Va.Code [§] 49-6-2(c) [now We st Virginia Code § 49-4-601(i)], requires the [DHHR], in a child abuse or neglect case, to prove ‘conditions existing at the time of the filing of th e petition . . . by clear and convincing [evidence].’ The statute, however, does not specify any particular manner or mode of testimony or evidence by which the [DHHR] is obligated to meet this burden.” Syllabus Point 1, In Interest of S.C. , 168 W.Va. 366, 284 S.E.2d 867 (1981).

Syl. Pt. 1, In re Joseph A. , 199 W.Va. 438, 485 S.E .2d 176 (1997) (citations omitted). Based upon this holding, it is clear that pe titioner’s arguments are without merit. First, the fact that the DHHR did not establish petitioner’ s drug abuse or the presence of domestic violence in the home is immaterial, given that the circuit court ultimat ely adjudicated petitioner of exposing the child to the uninhabitable environment. Similarly, the issue of whether or not the home in question was petitioner’s primary residence is also immate rial, given that the evidence established that petitioner often spen t the night in the home with the child and that the child was found in the home. In fact, testimony at the pr eliminary hearing estab lished that petitioner “had been residing there for some time” after having been removed from a different residence.

Finally, the fact that law enforcement permitted the child to remain in the home prior to the ultimate removal has no bearing on whether or not the DHHR satisfied its legal burden of establishing that petitioner was an abusing parent. Importa ntly, testimony at the preliminary hearing indicated that the home’s condition dete riorated between the in itial contact with law enforcement and the child’s removal. Further, testimony established that the child was permitted to remain in the home upon the grandmother’s assura nce that she could keep the child away from the dangerous conditions in the part of the home in which the parents were staying, while the parents were removed. Ultimately, because peti tioner continued to expose the child to the specific conditions that law enforcement identified as inappropriate, the child was removed from

the home.

3Contrary to petitioner’s arguments, the DHHR clearly sa tisfied its burden of proof regarding adjudication. While pe titioner argues that the DHHR presented only one witness in support of its burden, she fails to acknowledge that testimony from the fath er and the paternal grandmother, the only witnesses presented to rebut the DHHR’s allegations, was found entirely incredible. Specifically, the circuit court f ound that the grandmother’s “testimony was not credible” because she was not candid. As a result, the circuit court held th at it would “disregard her testimony entirely.” Moreover, the circuit co urt found the father’s testimony during the entire proceedings lacked credibility because of his “mental and emotional instability and bizarre behavior.” The DHHR, however, presented ex tensive testimony concer ning the deplorable condition of the home, which lead the circuit cour t to find that petitione r “knowingly exposed the child to a filthy, dangerous environment” beca use the home from which the child was removed

“was unsafe and not suitable for human habitation.”

West Virginia Code § 49-1-201 defines “neg lected child” as, in part, one “[w]hose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child’s parent . . . to supply the child with nece ssary shelter [or] supervision[.]” The evidence below clearly established that petitioner failed to provide the child with necessary shelter or supervision, as the home in question was not only uninhabitable, but also contained many dangerous conditions and items that were within the child’s reach. Accordingly, we find no error in the circuit court’s adjudication.

Finally, petitioner argues that the circuit court erred in denying her motion for a post

adjudicatory improvement period. We do not agree. While petitioner argues that the evidence at disposition established that sh e would be willing to fully co mply with the terms of an improvement period, the record is clear that petitioner simp ly failed to acknowledge her parenting deficiencies such th at an improvement period would have been inappropriate. On appeal, petitioner alleges that a DHHR employee te stified that she would be a good candidate for an improvement period. She furthe r argues that she testified to her willingness to comply with the terms of an improvement period. However, petitioner ignores the fa ct that she failed to accept responsibility for her abuse and neglect of not on ly this child, but the older child to which her parental rights were previous ly involuntarily terminated.

Specifically, at disposition, petitioner testified that her parental rights to the older child were involuntarily terminated because of the child’s fath er’s conduct, not her own. Her testimony caused the circuit court to conclude th at “she accepted no res ponsibility for the child abuse and neglect that resulted in the prior te rmination, and blamed everything on the father’s substance abuse.” Although petitioner testified th at she recognized issues with the home from which the child was removed, the circuit court ultimately found that petitioner was not “willing to acknowledge any parenting deficiencies amenab le to correction.” This evidences petitioner’s failure to acknowledge the conditions of abuse and neglect that necessitate d the child’s removal. We have previously held that

[i]n order to remedy the abuse and/or ne glect problem, the problem must first be acknowledged. Failure to acknowledge the ex istence of the problem, i.e., the truth of the basic allegation pertaining to the alleged abuse and neglect or the

4perpetrator 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)).

We have also noted that the decision to gr ant 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 di scretion 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 th e court’s discretion to grant an improvement period within the applicable statutory requireme nts”). Because petitioner failed to acknowledge the conditions of abuse and neglect that necessi tated the petition’s filing, we find no abuse of

discretion in the ci rcuit court’s denial of her motion for a post-adjudicatory improvement period.

For the foregoing reasons, we find no error in the decision of the circuit court, and its August 2, 2017, order is hereby affirmed.

Affirmed.

ISSUED : February 23, 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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