1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re C.H.

No. 18-0590 (Cabell County 17-JA-155)



### MEMORANDUM DECISION

Petitioner Mother M.M., by counsel Kerry A. Ne ssel, appeals the Circ uit Court of Cabell County’s June 14, 2018, order termina ting her parental rights to C.H. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a response in support of the circui t court’s order. The guardian ad litem (“guardian”), Cathy L. Greiner, filed a response on behalf of the child in support of the circuit court’s order and a supplemental appendix. On appeal, petitione r argues that the ci rcuit court erred in denying her motion for an extension of her post-adjudicat ory improvement period and 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 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.

On June 30, 2017, the DHHR filed an abuse and neglect petition against petitioner and the father alleging that petitione r abused illegal substances a nd engaged in domestic violence with the father in the child’s presence. Petitione r waived her preliminary hearing. On August 31, 2017, the circuit court held an adjudicatory hear ing during which petitioner stipulated to the allegations of substance abuse and domestic viol ence. Accordingly, petiti oner was adjudicated as an abusing parent and grante d a post-adjudicatory improveme nt period. A case plan was developed requiring petitioner to have independen t, stable housing and a reliable source of income; complete parenting and adult life skills classes; and consistently visit with the child. In November of 2017, petitioner participated in a psychological evalua tion during which she reported that she began using illegal substances at age thirteen or fourteen. She admittedly began using Oxycontin at age nineteen. According to the psychological evaluation, petitioner’s prognosis for parental improvement was poor.

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

November 19, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 In February of 2018, the circuit court held a review hearing. The ci rcuit court found that petitioner failed to obtain employme nt or stable housing and that he r visits with the child were inconsistent and did not go well. On May 10, 2018, th e circuit court held a dispositional hearing during which petitioner requested an extension of her post-adjudicatory improvement period, which the circuit court denied. The DHHR recommended the termination of petitioner’s parental rights. The DHHR presented evidence that petitio ner was “unable to control her emotions,” failed to adequately address her anger issues, and remained unemployed. The DHHR also presented evidence that petitioner threatened to kill the father. A DHHR service provider

testified that the child did not wish to visit with petitioner and that petitio ner missed several visits with the child. According to the DHHR, petitioner of ten failed to interact with the child and did not demonstrate proper parenting skills. After taking evidence, the circuit court found that petitioner missed visits with the child and that the visits in wh ich she participated were not productive. The circuit court also found that petitioner and the fath er were hostile toward each other and refused to co-parent the child. Furthe r, the circuit court f ound no reasonable likelihood

that the conditions of abuse and neglect could be substantially co rrected in the near future and that the termination of petitioner’ s parental rights was in the child’s best interests. Ultimately, the circuit court terminated petitioner’s pa rental rights in its June 14, 2018, order. 2 It is from this order that petit ioner 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

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 pr oceedings below.

On appeal, petitioner argues th at the circuit court erred in denying her motion for an extension of her post-adjudicato ry improvement period. In suppor t of her argument, petitioner asserts that she complied with most of the terms and conditions of her post-adjudicatory improvement period and family case plan. Sh e further argues that she acknowledged and

2 The father’s parental right s were also terminated. Ac cording to respondents, the permanency plan for the child is a doption by her patern al grandmother.3 admitted to the neglect of the child and, therefor e, the issues of neglect were treatable and “mostly cured by and through her improvement period and the family case plan.” We do not find petitioner’s argument compelling.

Pursuant to West Virgin ia Code § 49-4-610(6),

[a] court may extend any improvement pe riod granted pursuant to subdivision (2) or (3) of this section for a period not to exceed three months when the court finds that the [parent] has substantially complied with the terms of the improvement period; that the continuation of the im provement period will not substantially impair the ability of the department to permanently place the child; and that the

extension is otherwise consistent w ith the best interest of the child.

Here, petitioner complied with most of the te rms and conditions of her post-adjudicatory improvement period. However, the record shows th at petitioner missed several visits and during visits she did attend, she was unable to implem ent appropriate paren ting skills. “We have previously pointed out that the level of interest demonstrated by a parent in visiting his or her children while they are out of the parent’s cu stody is a significant factor in determining the parent’s potential to improve sufficiently and ach ieve minimum standards to parent the child.” In

re Katie S. , 198 W.Va. 79, 90 n.14, 479 S.E .2d 589, 600, n.14 (1996) (citing Tiffany Marie S.

, 196 W.Va. at 228 and 237, 470 S.E.2d at 182 and 191 (1996)); State ex rel. Amy M. v. Kaufman

, 196 W.Va. 251, 259, 470 S.E.2d 205, 213 (1996)). We have also held that “[i]n making the final disposition in a child abuse and neglect proceeding, the level of a parent’s compliance with the terms and conditions of an improvement period is just one factor to be considered. The controlling standard that governs any dispositional decision rema ins the best interests of the child.” Syl. Pt. 4, In re B.H. , 233 W.Va. 57, 754 S.E.2d 743 (2014). While petitioner participated

in some of the terms of her post-adjudicatory improvement period, she admittedly failed to obtain employment during the proceedings. Additionally, despite classes and services, she was

unable to control her emotions at times and failed to adequately address he r anger issues. Due to her failure to make any meaningful improvement s during the proceedings, the circuit court did not err in denying petitioner’s motion for an ex tension of her post-adjudicatory improvement period.

Further, we find no error in the circuit court’ s termination of petiti oner’s parental rights. Petitioner argues that th e circuit court denied her the opportunity to “c ontinue to correct her shortcomings as a parent.” We disagree. WestVirginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate pa rental rights upon findings that there is “no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future” and that termination is necessary for the children’s we lfare. West Virginia Code § 49-4-604(c)(3) provides that a situation in which there is no re asonable likelihood the conditions of abuse and neglect can be substantially corrected includes one in whic h the abusing parent “ha[s] not responded to or followed through with a reasonable family case plan or other rehabilitative efforts of social, medical, mental health or ot her rehabilitative agencies designed to reduce or prevent the abuse or neglect of the child[.]”

The evidence discussed above also supports the termination of petitioner’s parental rights. Petitioner complied with some services, but did not benefit from them. She also failed to4 secure employment during the proceedings as re quired by her family case plan. She was unable to properly address emotional and anger issues. Based on this evidence, it is clear that there was no reasonable likelihood that peti tioner could substant ially correct the issues of abuse and neglect. Further, because visits did not go well due to petitioner’s failure to interact with the child and implement proper parent ing skills, the termination of pe titioner’s parental rights was in the child’s best interests. The termination of pe titioner’s parental rights was also necessary in order to establish permanency for the child. Theref ore, the circuit court did not err in terminating petitioner’s parental rights.

For the foregoing reasons, we find no error in the decision of the circuit court, and its June 14, 2018, dispositional order is hereby affirmed.

Affirmed.

ISSUED : November 19, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Paul T. Farrell sit ting by temporary assignment