1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re D.M.

- D.

No. 19

- 0716 ( Kanawha County 15

- JA

- 366 )



### MEMORANDUM DECISION

Petitioner Mother H.M. , by counsel Matthew A. Victor , appeals the Circuit Court of Kanawha County’s July 24 , 2019 , order terminating her parental rights t o D.M.

- D. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Steven R. Compton

, fil ed a response in support of the circuit court’s order. The guardian ad litem, W. Jesse Forbes

, filed a re sponse on behalf of the child also in support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating he r parental rights by (1) denying her request for an improvement period, (2) stopping her contact with the child and denying her request of post

- termination visitation, and (3) finding that her mental illness contributed to the abuse and/or neglect of the c hild.

This Court has considered the parties’ briefs and the record on appeal. 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 rev iew, the briefs, and the record presented, the Court finds no substantial question 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 Procedur e.

I n February of 2016 , the DHHR filed an abuse and neglect petition alleging that petitioner’s ongoing mental health issues exacerbated the child’s “behavi oral and psychological problems ”

after she exercised visits and contact with him. 2 At the status hearing in May of 2016 , the circuit court denied petitioner’s requ est for contact with the child

, finding that such contact could be

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); Me linda 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 Petitioner and the child were the subject s of an earlier child abuse and neglect proceeding during which petitioner was ultimately permitted to reta in her parental rights and the child was placed into a legal guardianship with foster parents

. 

### FILED May 26, 2020

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

detr imental to the child’s welfare, especially considering that she continued to inappropriately parent the child during he r visits.

Many months passed during which the circuit court h eld status hearings on the child’s

various placement s and progress in treatment

. Petitioner completed her psychological evaluation in May of 2017, after which she was diagnosed with paranoid sc hizophrenia. After the DHHR was unsuccessful in securing specialized out

- of

- state treatment for the child , the DHHR placed him in a psychological ward at a hospital a fter he attempt ed to commit suicide in August of 2017. The next month, the child was place d in a specialized facil ity in Virginia, where he made numerous
attempts to commit suicide or harm others

.

In September of 2018 , t he DHHR filed an amended petition alleging that petitioner failed to comply with mental health treatment resulting in her ina bility to parent the child. Specifically, the DHHR alleged that petitioner denie d having mental health problems despite her prior diagnosis

of a “ psychotic disorder” in the previous child abuse and neglect proceeding ; bizarre ideation about
Jehovah’s witnesses and the Ku Klux Klan killing her other son who committed suicide in 2008;

and erratic behaviors such as tearing out the electrical wiring in her home because she believed it

was a surveillance system. The DHHR further alleged that during the previous child abuse and neglect proceeding, petitioner posted threatening remarks on social media about the DHHR and

was found by authorities with a loaded gun in her vehicle outside o f DHHR offices

. 3 Also, i n 2011, petitioner was convicted of a misdemeanor resulting from her threats to kidnap a circuit court judge ’s daughter. Moreover, the DHHR alleged that petitioner was expelled from the April 18,

2018

, hearing for yelling and cursing at the presiding judge and later posted nonsensical threa ts on socia l media against the assigned assistant prosecuting attorney, which r esulted in her criminal charge of intimidation of a public o fficial.

After the filing of the amen ded petition, t he circuit court held adjudicatory hearing s in October of 2018 and April of 2019, wherein the DHHR presented evidence that petitioner’s ongoing severe mental health issues affected her ability to parent the child. The psychologist who performed petitioner’s parental fitness evaluation testified that petitioner ’s contact with the child

would be detrimental to him due to her “paranoid reactions, fearful reactions, engaging in erratic behavior based on [her] delusions

, ” and an increased risk of physical harm to the child due to her “misperceptions or er ratic behavior.” The psychologist opined that petitioner’s mental health conditions inhibited her ability to parent the child and that petitioner refused to comply with appropriate mental health treatment

. Moreover, the DHHR worker testified that the then fifteen

year

- old child told the worker that he did not want to see petitioner if her mental illness was

untreated. The foster father J.W. also testified that the child did not want to see petitioner. Petitioner testified that she suffered from anxiety but had no problems with mental psychosis despite her admissions to hearing voices in her electrical outlets. Based upon the evidence presented, the circuit court adjudicated petitioner as an abusing parent. Petitioner moved for a post

adjudicatory improvement period, but the circuit court denied the motion finding that petitioner had “years of historical non

- compliance with treatment” for her “ long active psychosis ” and petitioner’s lack of insight into her mental health problems meant that timely improvement was

3 Petitione r was not criminally charged as a result of these actions.3

impossible. The circuit court also denied petitioner’s request for visitation finding that her contact

would be detrimental to the child

.

The circuit court held a final dispositional hearing on July 1, 2019. Petitioner failed to

appear
, but counsel represented her. Petitioner moved for a post

- dispo sitional improvement period,

but the circu it court denied it finding that petitioner did not have the ability to benefit from the
DHHR’s services due to her severe mental health conditions

. Fur ther, the circuit court found that petitioner’s contact with the child would be detrimental to his wellbeing and denied petitioner’s motion for post

- termination visitation. The circuit court concluded that because petitioner failed

to admit that sh e had me ntal health problems or rectif y the circumstance s that led to the filing of the previous child abuse and neglect matter nearly ten years prior , there was no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near future. Ultimately, the circuit court terminated petitioner’s parental rights in its July 24, 2019, order.

Petitioner now appeal s that order. 4

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 abus ed 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 the finding, the reviewing court on the entire evidence is left

with the defini te 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 plausi ble 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 review, this Court finds no error in the procee dings below.

On appeal, petitioner argues that the circuit court erred when it denied her request for an improvement period

. We disagree.

West Virginia Code § 49

- 4

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

- adjudicatory improvem ent period when the parent “demonstrates, by clear and convincing 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 i s viewed as an opportunity for the miscreant 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.

4 The father is deceased. The child’s foster parents retain guardianship, but the DHHR has placed the child in a spec ialized long

- term inpatient treatment facility. The permanency plan is guardianship by the foster parents.4

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. In re Tonjia M. , 212 W. Va. 443, 4 48, 573 S.E.2d 354, 359 (2002). Further, we 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 said abuse and neglect, results in making the p roblem 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 ). Here, the

evidence below established t hat petitioner ref used to acknowledge that she had an ongoing severe mental health probl em that prevented her fr om properly parenting the child. Indeed, as of the dispositional hearing, petitioner claimed that she suffered only from anxiety and no other mental

health conditions des pite testifying that she heard voices in her electrical outlets. Without the acknowledgement of a problem to address, granting petitioner an improvement period would have

been futile. Accordingly, we find no error in th e circuit court’s denial of petitione r’s request for an improvement period.

Next, petition er argu es that the circuit court improperly stopped her contact with the child and denied her request of post

- termination visitation. In support, petitioner argues that the circuit court improperly rel ied solely upon her psychological evaluation without considering the results of the child’s psychological evaluation and improperly considered allegations “having nothing to do with the exposure of the [c]hild to immediate danger.” Further, petitioner argu es that the child’s behavioral and psychological problems have only worsened while in the DHHR’s custody, despite

the cessation of petitioner’s visitations with the child. We find that petitioner is entitled to no relief.

We have previously held that

“ [ w] hen parental rights are terminated due to neglect or abuse, the circuit court may nevertheless in appropriate cases consider whether continued visitation or other contact with the abusing parent is in the best interest of the child. Among other things, t he circuit court should consider whether a close emotional bond has

been established between parent and child and the child’ s wishes, if he or she is of appropriate maturity to make such request. The evidence must indicate that such

visitation or continued contact would not be detrimental to the child’ s well being
and would be in the child’ s best interest.” Syl. Pt. 5, In re Christina L. , 194 W.Va. 446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D

., 211 W. Va. 79, 562 S.E.2d 147 (2002). Here , the rec ord revea ls that
the child’s behavior worsened throughout the proceedings, resulting in his unfortunate removal from numerous placements due to his severe psycho logical and behavioral problems

. However, petitioner ignores the fact that the circuit court ceased her vi sitations with the child after it was reported that she encouraged him to be disruptive in his placements and that his behaviors

worsened after visitations

. Further, although petitioner insists t hat her threats to a circuit court judge, the as sistant prosecutor, and the DHHR did not place the child in imminent physical danger5

or impact his psyche, she fails to acknowledge that the circuit court shielded the child from such

emotional abuse by restricting contact with petitioner. Due to her untre ated mental illness, petitioner lacks the ability to appreciate the circuit court’s intervention to protect the child from

her unstable

, violent outbursts and erratic behaviors. Moreover, the record contains numerous reports about the child’s diagnosis and progress in treatment, and, therefore, the circuit court was privy to information regarding the chi ld’s mental health when making its decision regarding

continued contact with petitioner. Additionally, the DHHR worker and the foster father testified

that the child did not want contact with petitioner. Ultimately, t he circuit court weighed petitioner’s request for contact with the child against the child ’s best interests, and we find no error in the circuit court’s decision to deny petitioner contact during the course of the proceedings

, as well as any future contact with the child

, as it is clearly not in his best interest.

Next

, petitioner argues that the circuit court improperly found that her “perceived mental health shortcomings prevented her from bei ng a parent” and failed to demonstrate how such “perceived mental illness” constituted abuse and neglect of the child. However, w e find no merit to this argument.

“‘ A busing parent’ means a parent, guardian, or other custodian, regardless of his or her

age , whose conduct has been adjudicated by the court to constitute child abuse or neglect as alleged in the petition charging child abuse or neglect

. ” W. Va. Code § 49

- 1

- 201. A “neglected child” is a child “whose physical or mental health is harmed or threatened by a . . . failure or inability of the child’s parent . . . to supply the child with necessary . . . supervision.” W. Va. Code § 49

- 1

- 201

, in part (emphasis added). Further,

“W.Va. 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 the petition . . . by clear and convincing [evidence].’ The statute, however, does not specify any particular man ner 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 ). At the outset, we note that

, contrary to petitioner’s belief that the circuit court merely “perceived” that she suffered from a mental illness that impacted her ability to parent, the overwhelming evidence below shows that petitioner suffered from sever e psychosis, including paranoid schizophrenia, which resulted in her paranoid delusions and threatening

, unstable behavio r . Numerous records and testimony established th at petitioner, in fact, suffers from diagnosed mental illnesses that impact her ability to perceive reality . Therefore, the circuit court’s finding that petitioner was severely mentally ill is wholly supported by the record . Likewise, we find that t he circuit court properly adjudicated petitioner as an abusing parent based on the evidence th at he r mental illness resulted in her neglect of the child

, as she could not provide adequate supervision or a stable home

environment for him. At the adjudicatory hearing, the psychologist testified that petitioner’s delusions previously caused her to tear out electrical wiring in her home while the child was with her, exposing him to the danger of fire. He further testified that she divulged wo rrying that the child had implants in his ears when she picked him up from school. The psychologist opined that petitioner’s contact with the child caused him emotional harm due to her “paranoid reactions,6

fearful reactions, [and] engaging in erratic behav ior based on [her] delusions

. ” Thus, we find no error in the circuit court’s findings.

W e likewise find no err or in the circuit court’s termination of petitioner’s parental rights.

West Virginia Code § 49

- 4

- 604(b)(6) provides that a circuit court may t erminate a parent’s parental 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 welfare of the child. A court may find that there is “no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected” when “[t]he abusing parent . . . [has] not responded to or followed through with a reasonable family case plan or other rehabilitative eff orts of social, medical, mental health, or other rehabilitative agencies designed to reduce or prevent the abuse or neglect of the child.” W. Va. Code § 49

- 4

- 604(c)(3). Here, t he cumulative evidence in the record shows that petitioner’s mental health condi tions have continued unabated; she remains unwilling to accept responsibility for addressing her severe mental illness or the consequences of her actions ; and she refuses to a dmit to the conditions which le d to the filing of both petitions

— her inability to parent her child due to untreated severe mental illness. Critically, petitioner was offered an array of services in her pri or abuse and neglect proceeding but failed to ful ly comply with those services

and addre ss her severe mental illness

. It appears fro m the record that any services petitioner was offered or participated in had no remedial effect and that the conditions of the prior child abuse and neglect proceeding continued unabated

. It is clear that p etitioner does not have the ability to

understand how her mental illness negatively impacts her ability to parent the child and that she failed to follow through with rehabilitative services designed to reduce or prevent the child’s abuse and/or neglect. The circuit court found that there was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected and that termination was necessary for the

welfare of the child

, and those findings are supported by the above

- referen ced evidence. Accordingly, we find no error in the circuit court’s termination of petitioner’s parental rights.

Lastly, we recognize that the child has been placed in numerous facilities due to his severe psychological and behavior problems and that proce edings regarding his placement in ci rcuit court

are still ongoing. As such, this Court reminds the circuit court of its duty to establish permanency for the child. Rule 39(b) of the Rules of Procedure 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 placement 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 Proceedings to find permanent placement for a child within twelve months of the date of the disposition order. As this Court has stated,

[t]he [twelve]

- month period provided in Rule 43 of the West Virginia Rules of Procedure[] for Child Abuse and Neglect Proceedings for per manent placement of an abused and neglected child following the final dispositional order must be7

strictly followed except in the 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 [West Virginia Code § 49

- 4

- 604(b)(6)], the circuit court shall give priority to securing a suitable adoptive home for the child and shall consider other placement alternatives, including permanent foster care, only where the court finds that adoption would not provide custody, care, commitment, nurturing and discipline consistent with the child’s best interests or where a sui table 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 neglect proceedings does not actually cease until such time as the child is placed in a pe rmanent home.” Syl. Pt. 5, James M. v. Maynard , 185 W. Va. 648, 408 S.E.2d 400 (1991).

For the foregoing reasons, we find no error in the decision of the circuit court, and its July 24, 2019 , order is hereby affirmed.

Affirmed.

ISSUED : May 26, 2020

CONCURRED IN BY :

Chief Justice Tim Armstead

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

NOT PARTICIPATING:

Justice Margaret L. Workman