1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re C.A., Z.A., S.A., L.A.-1, and L.A.-2

No. 18-0580 (Cabell County 15-JA-100, 15-JA-101, 15-JA-102, 15-JA-103, and 15-JA-104)



### MEMORANDUM DECISION

Petitioner Mother A.A., by counsel Kerry A. Nessel, appeals the Circuit Court of Cabell County’s May 29, 2018, order terminating her parental rights to C.A., Z.A., S.A., L.A.-1, and

L.A.-2. 1 The West Virginia Department of Hea lth and Human Resources (“DHHR”), by counsel Brandolyn N. Felton-Ernest, filed a response in support of the circ uit court’s order. The guardian ad litem (“guardian”), Allison K. Huson, filed a re sponse on behalf of the children in support of the circuit court’s order. On appeal, peti tioner argues that the circuit court erred in terminating her post-adjudicatory 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 April 9, 2015, the DHHR filed an abuse and neglect petition against petitioner alleging that she abused controlled substances. Th e DHHR specifically alleged that in March of 2015, the parents were found unresponsive in the home after one of the children called 9-1-1. All of the children were home at that time. Upon in vestigation, the home was found to be deplorable with trash and dirty dishes piled throughout. Ther e was also drug paraphernalia in the home. The DHHR also alleged that petitioner was unable to provide appropriate housing for the children. The parents were criminally charged with child neglect creating risk of injury. On June 15, the circuit court held an adjudicatory hearing during wh ich petitioner stipulated to the allegations of abuse and neglect. She admitted that her children were in the home when she overdosed on heroin in March of 2015. Accordingly, petitioner wa s adjudicated as an abusing parent and was granted a six-month post-adju dicatory improvement period.

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, becau se two of the children share the same initials, they will be referred to as L.A.-1 a nd L.A.-2, respectively, throughout this memorandum

decision. 

### FILED

November 19, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 In November of 2015, the circuit court held a review hearing. The ci rcuit court found that petitioner was in compliance with her post-adju dicatory improvement peri od and her case plan. In February of 2016, the circuit court held a review hearing a nd found that petitioner was in compliance with visits and parenting services. Th e circuit court granted petitioner an extension of her improvement period. In August of 2016, the circuit court held a re view hearing and found that petitioner was doing well in her improvement period. The circuit cour t extended petitioner’s post-adjudicatory improvement period and granted her overnight visits with the children. The circuit court held a hearing in March of 2017, during which it was informed that the children’s father had passed away. Following the hearing, petitioner began a trial reunification with the

children. Petitioner continued to comply with the te rms and conditions of her post-adjudicatory improvement period and was granted multiple extensions of the same. However, following attempted reunification with petitioner, the ch ildren were again removed from her care in November of 2017. According to the DHHR, petiti oner hit S.A. and withheld food from her because she was “acting out.”

On January 18, 2018, the circuit court held a re view hearing. The ci rcuit court found that visitations between petitioner and the children were not go ing well. The DHHR and guardian

moved for the circuit court to terminate petitioner’s post-adjudicatory improvement period and terminate her parental rights. The circuit c ourt terminated petitioner’s post-adjudicatory improvement period and set the matter for dispos ition. On April 16, 2018, the circuit court held a dispositional hearing during which the DHHR pres ented evidence that the children disclosed severe emotional abuse by petitioner to a Child Protective Services (“CPS”) worker. The CPS worker testified that there were issues between pe titioner and the two oldest children that led to a complete breakdown of their rela tionship with petitioner. The C PS worker also informed the

circuit court that the two oldest children do not wi sh to see or speak to th eir mother and fourteenyear-old Z.A. specifically expressed wishes that petitioner’s parental rights be terminated. She testified that petitioner complied with services and other requirements of her post-adjudicatory improvement period. However, she further explaine d that services were exhausted over the threeyear period that the proceedings were ongoing and that petitioner was unable to implement the parenting skills taught in the classes. Additiona lly, according to the CPS worker, petitioner did not cooperate with requests for records to confirm that she was receiving th erapy and that said therapy was addressing the appropriate issues, including a diagnosis of borderline personality disorder. According to the guardian, petitioner “made choices that do not demonstrate [the] ability to properly parent the . . . children.” In its May 29, 2018, dispositional order, the circuit court found that petitioner failed to fully comply with her family case pla n. Further, the circuit court found no reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near future and that th e termination of her pare ntal rights was in the children’s best interests. Ultimately, the circuit c ourt terminated petitioner’s parental rights in its May 29, 2018, order. 2 It is from this order that petitioner appeals.

The Court has previously establishe d the following standard of review:

2 The children’s father is deceased. According to respondents, the permanency plan for the children is adoption by thei r paternal grandmother.3 “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 that the circ uit court erred in terminating her postadjudicatory improvement period. In support of her argument, petitioner asserts that she complied with the terms and conditions of her po st-adjudicatory improvement period and family case plan. She further argues that she participated in classes and therapy and obtained stable housing and employment, but that sh e was “painted in an unfair light by the parties involved.” Petitioner alleges that, by terminating her pos t-adjudicatory improveme nt period, the circuit court denied her the “opportunity to continue to correct her shortc omings as a parent.” We do not find this argument persuasive.

Pursuant to West Virginia Code § 49-4- 610(7), “[u]pon the motion by any party, the court shall terminate any improvement period gran ted pursuant to this section when the court finds that [the parent] has faile d to fully participate in the te rms of the improvement period[.]” Here, petitioner complied with most of the te rms and conditions of her post-adjudicatory improvement period and received numerous extens ions of the same. It is uncontested that petitioner attended parenting clas ses and obtained housing and empl oyment. However, the record shows that after three ye ars of services, petitioner was unable to implement the parenting skills that she was taught and unable to demonstrate that she could properly parent the children. Petitioner also failed to cooperate with the DHHR and refused to provide documentation that she was participating in therapy to address specific issues. Further, the record shows that she emotionally abused the children to the point th at it caused a breakdown in the relationship between petitioner and her two oldest children . In its May 29, 2018, dispositional order, the circuit court found that petiti oner failed to fully comply with her family case plan. Moreover, due to her failure to make any meaningful improveme nts during the proceedings, the circuit court did not err in terminating petitioner’s post-adjudicatory improvement period.

Further, we find no error in the circuit court’ s termination of petiti oner’s parental rights. Petitioner reiterates her argument that the circuit court erred in not allowing her to “continue to address her shortcomings as a parent.” We disagree. West Virginia Code § 49-4-604(b)(6) provides that circuit cour ts are to terminate parental righ ts upon findings that there is “no4 reasonable likelihood that the condi tions of neglect or abuse can be substantially co rrected in the near future” and that termination is necessary for the children’s welfare. West Virginia Code § 49-4-604(c)(3) provides that no r easonable likelihood that the conditi ons of abuse or neglect can be substantially corrected exists when “[t]he abusing parent . . . ha[s] not responded to or followed through with a reasonable family case pl an or other rehabilitative efforts[.]”

The evidence discussed above also supports the termination of petitioner’s parental rights. Petitioner failed to benef it from her parenting classes a nd was unable to implement proper parenting skills. The record also shows that the children disclosed severe emotional abuse by petitioner. Based on this evidence, there wa s no reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near future. Additionally, due to petitioner’s emotional abus e of the children, it is clear that th e termination of her parental rights

was in the children’s best interest. The termin ation of petitioner’s pa rental rights was also necessary in order to establish permanency for th e children. Therefore, th e circuit court did not err in terminating petitio ner’s parental rights.

For the foregoing reasons, we find no error in the decision of the circuit court, and its May 29, 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