### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

FILED

In re T.W.-1 

### May 14, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS No. 18-0060 (Randolph County 2017-JA-051) OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Mother T.W.-2, by counsel J. Brent Easton, a ppeals the Circuit Court of Randolph County’s December 15, 2017, order termin ating her parental rights to T.W.-1. 1 The West Virginia Department of Health and Hu man Resources (“DHHR”), by counsel Brandolyn N. Felton-Ernest, filed a response in support of the circuit court’s order and a supplemental appendix. The guardian ad litem (“guardian”), G. Ph illip Davis, filed a re sponse on behalf of the child also in support of the circu it court’s order. On appeal, petiti oner argues that the circuit court erred in terminating her parental rights w ithout first granting her an improvement period.

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.

Prior to the initiation of the instant proceed ings, petitioner had a history of involvement in abuse and neglect proceedings. Petitioner was adjudicated of abuse and neglect due to her substance abuse in 2009, but ultimately comple ted an improvement period and the petition against her was dismissed. Petitioner was the su bject of a second abuse and neglect proceeding initiated in 2016, wherein her parental rights to four older children were ultimately involuntarily

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 the child and petitioner share the same initials, we will refer to them as T.W.-1 a nd T.W.-2, respectively, throughout this memorandum
decision.

1terminated due to her failure to correct the c onditions of abuse, including substance abuse and failing to provide the children with a stable home, food, clothing, and other necessities. 2

In June of 2017, a mere six days after her pare ntal rights to her f our older children were involuntarily terminated, petitioner gave birth to T.W.-1, the only ch ild at issue in this appeal. Shortly thereafter, the DHHR filed the instant abuse and neglect petition against petitioner, alleging that she tested positive for amphetami nes, methamphetamine, and marijuana at the child’s birth. The DHHR alleged that petitioner de nied abusing the drugs and blamed the positive
test results on over-the-counter medications. The DHHR further al leged that petitioner had a history of child abuse a nd neglect, that aggravated circum stances existed be cause petitioner’s parental rights to four older children were involuntarily termin ated, and that no change in
circumstances occurred si nce the prior proceeding.

The circuit court held an adjudicatory hearin g in August of 2017. Peti tioner stipulated to the allegations contained in the petition and requested a post-adjudicatory improvement period. The circuit court accepted petitione r’s stipulation, adjudicated her as an abusing parent, and held her motion in abeyance until the dispositional hearing.

In December of 2017, the circui t court held a dispositiona l hearing wherein it took judicial notice of the prior abuse and neglec t proceedings and the testimony and evidence presented at the prior hearings in the instant ma tter. The DHHR also requested that the circuit court take judicial notice that it had ordered petitioner to submit to a drug screen following the adjudicatory hearing and that sh e failed to do so. Petitioner tes tified as to her willingness to participate in an improvement period and stated that she would comply with any services ordered. However, petitioner continued to blame her positive drug screen at the child’s birth on
over-the-counter medications. Af ter hearing evidence, the circ uit court found that petitioner
failed to demonstrate that she wa s likely to participate in an improvement period, made no efforts
to address her substance abuse issues or other conditions of abuse since th e prior termination of parental rights, and was unable to provide for the child’s need s. Finding that there was no reasonable likelihood that petitioner could correct the conditions of abuse in the near future and that termination was necessary for the child’s welfare, the circuit court denied petitioner’s motion for a post-adjudicatory improvement period and terminated her parental rights. It is from the December 15, 2017, dispositional order that petitioner appeals. 3

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

2 Petitioner appealed the termina tion of her parental rights to the four older children and
this Court affirmed the circuit court’s order by memorandum decision. See In re: CW., R.W., N.W., and F.B. , No. 17-0718, 2017 WL 5953092 (W.Va. Dec. 1, 2017)(memorandum decision).

3 The father’s parental rights were also te rminated during the proceedings below. The child was placed with a relativ e and the permanency plan is adoption by the relative.

2facts 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).

In her brief on appeal, petitioner states that the circuit court erred in terminating her parental rights without first granting her an improvement peri od. However, sh e cites to no authority requiring circuit courts to grant parent s improvement periods before terminating their parental rights. In fact, petitioner concedes that this Court has held that “courts are not required to exhaust every speculative possi bility of parental im provement . . . where it appears that the welfare of the child will be seriously th reatened . . . .” Syl. Pt. 4, in part, In re Kristin Y. , 227 W.Va. 558, 712 S.E.2d 55 (2011)(quoting Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980)). Accordingly, we find no error in this regard.

Moreover, petitioner has failed to present evid ence that the circuit court erred in denying her an improvement period. The decision to gran t or deny an improvement period rests in the
sound discretion of th e circuit court. See In re M.M. , 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia law allows the circuit court discretion in deciding whether to grant a parent an improvement peri od”); Syl. Pt. 6, in part, In re Katie S. , 198 W.Va. 79, 479 S.E.2d 589 (1996) (“It is within the court’s discretion to gr ant an improvement period within the applicable statutory requirements”). We have also held th at a parent’s “entitlement to an improvement period is conditioned upon the ability of the [par ent] to demonstrate ‘ by clear and convincing evidence, that the [parent] is likely to fully participate in the improvement period . . . .’” In re Charity H. , 215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004).

While it is true that petitioner testified to her willingness to participate in the terms and conditions of a post-adjudicatory improvement period, the overwhelming evidence supported the circuit court’s denial of an improvement period. This is especially true in light of the fact that petitioner tested positive for se veral drugs at the chil d’s birth, only six da ys after having her parental rights to her older chil dren involuntarily terminated due, in part, to her substance abuse. In addition to these aggravated circumstances , petitioner continued to deny that she had a substance abuse issue, testifying at the dispositional hearing that her positive drug screen was a result of taking over-the-counter medication. We have 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

3perpetrator 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 Charity H. , 215 W.Va. at 217, 599 S.E.2d at 640). Moreover, petitioner wa s ordered to provide a drug screen following her adjudicatory hearing, but refuse d to do so. In light of the a ggravated circumstances of this case and petitioner’s continued failure to acknowl edge or address the c onditions of abuse, we find no abuse of discretion in the circuit court’s denial of petitioner’s motion for a post

adjudicatory improvement period.

For the foregoing reasons, we find no error in the decision of the circuit court, and its December 15, 2017, order is hereby affirmed.

Affirmed.

ISSUED : May 14, 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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