1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re W.B.

No. 21

- 0 720 ( Fayette County 20

- JA

- 178 )



### MEMORANDUM DECISION

Petitioner Mother E .B ., by counsel Na n cy S. Fraley , app eals the Circuit Court of Fayette County’s A ugu st 31 , 2021, order terminating her parental , custodial, and guardianship rights to

W.B

. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and Mindy M. Parsley , filed a response in support of the circuit co urt ’s order. The guardian ad litem, Christopher S. Moorehead, filed a response on behalf of the child ren in support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying her motion for a post

- adjudicatory improv eme nt period and in terminating her parental

, custodial, and guardianship rights.

This Court has considered the pa rties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be sign ifi can tly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented , the Court finds no substantial question of law and no prejudicial error. For these

reasons, a memoran dum decision affirming the circuit co urt ’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

Prior to the initiation of the pro ceedings giving rise to this appea l, petitioner was inv olved

in a n abuse and neglect proceeding in regard to several older children. Th is e arli er pro ceeding began in February of 2 019 , when the DHHR fil ed a p etition alleging inappropriate physical discipli ne ; failure to care for the children ’ s basic hygiene ; failure to provide the children with appropriate clothing, including winter coats; failure t o pr ovide the ch ildren with sufficient foo d ; and domestic vio lence . When Child Protective Services ( “ CPS ” ) workers investi gat ed the home,

1 Consistent with our long

- standing practice in cases with sensitive facts, we u se i nitial s wh er e necessary to pro tect the identities of those involved in this case. See In re K.H. , 235 W. Va. 254, 773 S.E.2 d 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.2 d 761 (2005) ; St at e v. Edward Charle s L.

, 183 W. Va. 641, 398 S.E.2d 123 (1990). 

### FILED April 14, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WES T VIRGINIA2 they had to be accomp an ied by law enforcement because of the ol der children ’ s father ’ s aggressive behavior. The C PS in v est igation revealed a filthy home with little food and unsafe conditions. When the DHHR took emergency custody of the children , petitioner stated that she

had no clothing to send for the children. Following the children ’ s removal, one of them disclosed

tha t t hat father s howed him pornographic images. The petition in the prior matter also alleged a n

ext ensive history of CPS involvement that began in 201 0 , including an ongoing CPS investigation into alle gations that the father sexually abused one of the ch ild ren

. There were also several referrals for drug use in t he home, although these were unsubstantiated. Final ly, t he DHHR alleged that petitioner failed to protect the children from domestic violence and excessive corporal punishment and neglec ted the chi ldr en by failing to provide them with food, clean and appropriate clothin g, and suitable housing.

Petitioner later stipulated to domestic violence in the home and was granted an improvement period. Because of additional information uncovered r egarding th e f ath er ’ s s exual

abuse of the chil dren, petitioner wa s prohibited from having any contact with the father during

her improvement per iod. However, it was later discovered that petitioner was vi olating this order, in addition to talking about the confidenti al cas e over social media. Ev en more troubling, petitioner ’ s comments indicated that petitioner believed n either she nor the father had done

an ything wrong and that she “ struggle[d] to grasp why the children were removed from her

care. ” U ltimate ly

, petitio ner vo lu n tarily relinquished her parental rights to the children at a hearing in Aug ust of 2020

. At that time, petitioner was pregnant with W.B.

Four months later , the DHHR fil ed the petition giving rise to the matter currently on appeal. Accor ding to a p eti tio n filed in De cember of 2020 , the DHHR alleged that petitioner gave birth to W.B. that same month. The DHHR further alleged that law enforcement was continuing its investigation into the older children ’ s father and his sexual abuse of those children.

The pe ti tion alleged that law e nforcement informed th e DHHR that petitioner was “ allegedly complicit in the sexual assaults of [the father] due to be ing aware on multiple occasions what was occurring with her children and fail ing to report [the f ather] and en sur e the safety of her

children. ” The DH HR also alleged that the maternal grandmother disclo sed that , prior to W.B. ’ s b irth, petitioner was “ arranging plans to leave the state . . . to deliver [W.B .] in hopes of avoiding

CPS intervention. ” Th e maternal gra ndm ot her also indicated that petitioner was residing with the

fath er of her older children in a camper. Accordingly, the DHHR all eged that petitioner abused and neglected W.B . because of her history of domestic v iolence, which had not been co rrected

,

an d h er pa st history of failing to p rotect her children from sexual abuse.

Following the petition ’ s filing, petitione r failed to appear for the prelim inary hearing, although she was represe nted by counsel. P etitioner ’ s whereabouts at the tim e of the hearin g

w ere u nknown. Thereafter, petitioner filed a written stipulation in which she admitted to abusing and/or neglecting W.B. At an adjudicatory hearing in March of 2021, the court accepted the stipulation and adjudicated peti tioner of abusing and neglecting the ch il d.

Later in March of 202 1, the parties convened a multidisciplinary team ( “ MDT ” ) meeting, which petitioner did not atten d. According to th e MDT report, petitioner a dmitted that after

W.B. ’ s removal “ she went off the rails and used [h]e roin. ” Peti tio ner ’ s counsel informed the

MD T that petitioner was in a short

- term substance abuse treatment program and wo uld then3 transition into long

- term treatment. The following month, petitioner file d a motion for a post

adjudicatory improvement period in which s he set f orth her efforts in substance abuse treatment and indicated that she would comply with a broad range of remedial services. During a hearing in Apr il of 2021, petitione r ’ s counse l indicated that petitioner admitted to abusing heroin after

she rel inq uis hed h er parental rights to her older children in the pri or proceeding

. The record

shows that petitioner a b used heroin while pregnant with W.B ., although she claimed that she

ceased her substance abuse when she lea rned she was pregnant, and records from her ad missi on to give birth to the child did not ref lect drugs in her system. According to counsel, petitioner

a dmitted that she “ went on a binge and started using drugs and got addicted to heroin. ” After the

DHHR took cu stody of W.B., petitioner r elapsed bef ore recog nizing that she needed substance

abuse treatment. During that hea ring, the court stated that petitioner “ has somewhat of a heavy load to pull to show the [c]ourt that she is likely to successfully complete an [i]mprovement [p]eriod. ” Th e follow ing mo nth, a n MDT report indicate d that petitioner continued in her

substance abuse treatment.

In M ay of 202 1, th e court held a he aring on petitioner ’ s motion for an improvement period

. At the hearing, petitioner stressed her ongoing efforts in substance abu se treatm ent and further indicated that she finally believed that her older children ’ s father sexually abused those

children. Petitioner in dicated that she would be wil ling to cooperate with law e nforcement in its investigat ion i n to the father ’ s sexual abu se of the older children. Both the DHHR and the guardian objected to the mo tion. The guardian specifical ly pointed to petitioner ’ s failure during an improvem ent period in the prior proceeding s, arguing that she was ordered to have no contact

wit h the ol der ch ildren ’ s father but “ she deceived everybody and did it anyway in violation ” of

the court ’ s order by choosing to have con tinue d contact with the in dividual alleged to have

sexuall y abused her older childr en . The guardian elaborated that the pa rties “ t hou gh t [petiti oner] was stayin g away until we started catching her and could have proved it at a [d ]isposition [h]earing that she was actually having contact with [the father ]. And that ’ s when she decided to relinquish. ” The guardian further argued that pe tit ion er was i n a considerably worse position than

in t he prior proceedings, as she not only failed to remedy the conditions of abuse and neglect at issue from the prior matter but had also developed a substance abuse problem in the interim. During the hea rin g, the cour t questioned peti tioner ’ s ability to be successful in the improvement period, given that she was unable to resolve the issues from the prior proc eedings despite having been granted an impr ovement period

. The court found that petition e r previo us l y “ had an

o pportunity to keep her children with her by getting away from [the father], having lifestyle changes, following an [i]mprovement [p ]eriod with those fou r children. And yet when it came right down to it, she gave them up. ” The court no ted peti tio ner ’ s testi mony about having

ac cepted that her o ld er children ’ s father abused them, but went on to find that petitioner “ has not convinced the [c]ourt that she has turned over a new l ea f in life and wants to be a good mother. ”

The court ultimate ly denie d t he motion, finding that petitioner was “ unlikely to successfully participate in an improvement period. ”

In a report from a June of 2021 MDT he aring, the DHHR noted that petitioner ’ s counsel

did not know her whereabouts

, and that one of petition er ’ s fam ily me mbers in dicated that petitioner had relapsed on drugs and again submitted to a short

- term substance abuse treatment

p rogram. Bo th the DHHR and the guardian recommended termi nation of petitioner ’ s parental4 rights, arg uing that, since the prior pr oceed ing s, “ [t]h ing s have gotten worse because now [petitioner] also has a substance abuse problem. ”

The cour t originally convened the dispositional hearing on July 6 , 202 1, but petitioner failed to appear. On July 30, 2021, the court held the final d ispositi ona l h earing

. According to the appendix, the court mad e several document s, including MDT reports and the report of the guardian, part of the record. Th e court also took judicial notice of the entire casefile f rom petitioner ’ s prior abuse and negl ect pr ocee din g s. T he cour t then heard testimony from a CPS

worker and petitioner. Based on the evi dence, the court found that petitioner w as adjudicate d for

dom estic violenc e in the prior case and then proceeded to begin a busing substances prior to the

ini tiation of th e c urrent pr oceedings. The court also noted that pet itioner completed only “ two
short

- term stays at differen t rehabilitation centers ” and had “ very li mited contact ” with the

DHHR. Accordingly, the court found that petitioner “ has demo nstrated by her con duc t t hat she

h a s done n othing to remedy the conditions of abuse and neglect. ” The court found that petitioner

“ h as a continued blind spot ” for the father of her older children and that petitioner ’ s older children expressed fears to the DHHR that W.B. woul d b e s ubjected to the same abuse they endured if returned to petitioner ’ s custody. Accordingly, th e court found that there was no reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near fu ture and t hat th e child ’ s welfare required termination of petit ioner ’ s parental, custodial, and guardianship rights. As such, the court termin ated those rights

. 2 It is from the dispositional order that petitioner ap peals.

The Court h as previou sly es tablished the following standard of review:

“Although conclusions of law reached by a circuit court are subject to de

nov o review, when an action, such as an abuse and neglect case, is tried upon th e facts without a jury, the circuit court shall mak e a de terminati on based upon the evidence and shall make findings of fact and conclusions of law as to whether

such child is abu sed or neglected. These findings shall not be set aside by a reviewing court unless clearly e rroneous. A finding is cl early erro neo us when,

alt hough there is evidence to support the finding, the reviewing court on the entire

evidence is left with the defin ite and firm conv iction that a mistake has been committed. However, a reviewi ng court may not overturn a finding simpl y because it wou ld have d ecided the case differently, and it must affirm a finding if the circuit court’s account of the evidence is plaus ible 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 (19 96)

.

Syl. Pt. 1, In re Cecil T

., 228 W. Va. 89, 717 S.E.2d 873 (2011).

2 The child ’ s unknown father’s parental ri ghts were also terminated. The permanency plan

for the child is adoption in the current foster home

.5 On appe al, petitioner first argues t hat it was err or to deny her motion for a post

adjudicatory improvement period “ given t hat no services were offered to the [p]etiti oner follo win g h er stipul ated adjudication such that she was denied a me aning ful o pportu nity to

establish clear and convincing evidence she would participate ” in such an improvement period. This argument, however, misstates t he law go verning the granting o f improvem ent pe riods and

confl ates th e DHHR ’ s statutory respo nsibility to make reasonable efforts to prese rve a family with the granting of an im provement period.

Petitioner is correc t that improvement periods are gove rn ed by West Virginia Code § 49

- 4

- 6 10, which set s f orth that , in order to obtain one, a parent must “ demonstrate [] , by cle ar and convincing evidence, that the [parent] is likely to fully participate in the improvement period

. ” What this statute does not require , however, is that the DHHR pr ovide any ser vic es prior to the filing of a motion for an improvement period so that a parent may demonstrate compliance with

services in order to bolster the evidence in support of their motion. O n appeal, petitioner cit es to
no law or other authority tha t would re qui re the DHHR to provide services so that she could satisfy her burden for obtaining an improvement period. As such, she is entitled to no relief in this regard

.

Petitioner f urther argues that the circuit court applied an inappr opriate standard in ruling

on he r motion. Although she acknowledges that the circuit court ’ s order “ did apply the proper burden, ” she argues that the transcript of the hearing de monstrates t hat the circuit court erroneously held her to a standard of showing that she would “ successf ull y c omplete a n impr ovement period. ” Petition er ’ s argument fails for two reasons. First, we have previously explain ed that “ where a circuit court ’ s written order conflicts wit h its oral statement, the written

order controls. ” Legg v. Felinton , 2 19 W. Va. 478 , 4 84, 637 S .E.2d 576, 582 (2006). Given t hat petitioner concedes that the circuit court ’ s order applied the appr opriate standard, she cannot be

entitled to relief. S econd, peti tioner ignores the fact that we have explained that circuit court s have th e dis c re tion to deny an improvement period when no improvement is likely. In re Tonjia

M. , 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002). As such, the circuit court did not err in considering whether petition er could successfully complete an imp rovem ent pe rio d

.

Even more i mportantly, the record overwhelmingly supports the circuit court ’ s denial of petitioner ’ s motion. As set fo rth above, petitioner voluntarily relinquished her parental ri ghts to four older children just four months prior to the init iation of th e current pro ceedings while pregnant with W.B

. The record further shows t hat petitioner not only failed to remedy the conditions from the pr ior procee dings, but that she also became addicted to heroin in the inter im.

A s several witnesses and pa rties po i n te d out below, petitioner was in a much worse position than

she was when she volu ntarily rel inquished her parent al rights to those older children. While it is

commenda ble that petitioner participat ed in substance abuse treatment , the record nonet heless

sh o ws that she relapsed after her first short

- term treatment program during these proceedings and

had to re

- enter a similar program. Simply put, p etitioner ’ s participation in sub stance abuse

treatment and other services was insufficient to establi sh tha t sh e wa s likely to fully par ticipate in an improve men t period, given that she had just unsuccessfully participated in an improvement period a matter of months before in her pr ior proceedin g

. Accordingly, we find no error in the

circuit court ’ s denia l of p etit i o ne r ’ s motion.6 F inally , petitioner argues that the circuit court erred in ter minating her parenta l , custodial, and guardianship ri ghts to the child because the DHHR was not required to seek termination of her parental rights under West Virgini a Code § 4 9

- 4

- 605(a) . Petitioner is correct tha t non e of the

circumstances set forth in that statute 3 are present in the current matter. What petition er fails to recognize, however, is that this st atute simply imposes an affirmative duty on the DHHR to see k

term inat i o n in these specific cir cumstances. I mportantl y, the statute does not preclude the DHHR from seeking termination of parental rights absent one or more of these conditions. Accordingly, her reliance on this statute is misplaced. Petitioner also a rgu es that t he circuit court erred in finding that the DHHR made reasonable efforts to preserve the family , but this argument is similarly misplaced and totally ignores petitioner ’ s refusal to participate in the proceedings.

Under West Code § § 49

- 4

- 604(c) (6)(C) (iii ) a nd (iv), the court ’ s d ispositional order must

includ e findings as to whether the DHHR made reason able efforts to preserve and reunify the family. Petitioner argues that the court ’ s find ing that the DHHR made such reasonable efforts is

not supp orted by t he record, but we do not agree. While it is true that, other than one drug screen,

3 West Virginia Code § 49

- 4

- 605 (a) pr ovides t ha t

[e] xcept as provided i n § 49

- 4

- 605(b) of this co de, the department shall file or join in a petition or otherwise seek a ruling in any pending proceeding to terminate parental rights: (1) If a child has been in foster care for 15 of the m ost re cent 2 2 mo n t hs as determined by the earlier of the date of th e first judicial finding that the child is subjected to abuse or neglect or the date which is 60 days after the child is removed from the home; (2) If a court has determined the child is ab andone d, tor ture d

, sexually abused, or

ch ronically abused; (3) If a court has determined the parent has committed murder or voluntary manslaughter of another of his or her children, another child in the household, or the other parent of his or her children ; has attemp ted o r conspired to commit

mu rder or voluntary manslaug hter or has been an accessory before or after the fact of either crime; has committed unlawful or malicious wounding resulting in serious bodily injury to the child or to another of his or her ch ildren , an o t her child

in the househ old or to the other parent of his or her children; has committed sexual assault or sexual abuse of the child, the child’s other parent, guardian or custodian, another child of the parent or any other child residing in the same hous e h old or under the tempor ary or permanent custody o f the parent; or the parental rights of the parent to another child have been terminated involuntarily;

or (4) If a parent whose child has been removed from the parent’s care, custody, and

contro l by a n or d e r of removal voluntaril y fails to have contact or attempt to have contact with the child for a period of 18 consecutive months: Provided, That failure to have, or attempt to have, contact due to being incarcerated, being in a

medical or d rug tr eatmen t or r ecovery facility, or be ing on active military dut y shall not be considered voluntary behavior.7 petitioner did not participate in serv ices in this matter, it was not due to a lack of rea sonable efforts on the pa rt of the DHHR. The recor d sh ows that the DHHR r efe rre d pe ti t ioner for services, in cluding parent ing and adult life s ki l ls education

. According to a DHHR employee

, the contact information petitioner gave the DHHR was passed along to a service provider , yet the

witness indicated that the provider told he r on n umer ou s occasions that the pr ovider was unable to contact petitioner. The witness also indicated that she “ had no contact with [petitioner] other than when she appears for court

. ” Comp ounding the issue i s the fact that even petitioner ’ s attendance in court was s p oradic, as the record shows that she failed to appear for multiple hearings and MDT meetings , with even her counsel being unaware of her whereabout s at times

. Further , the DHHR was u nable to communicate with any of petitioner ’ s rehabilitation facili t ies

b e cause petitioner faile d to execute the necessary releases. While i t is true th at petit ioner testified that no provider ever tried to contact her, t he circuit court heard this evidence and resolved it in

the DHHR ’ s favor. This is a credibility determ inat io n that we declin e to di sturb on appe a l.

Michael D.C. v. Wanda L.C. , 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997) (“A reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely situated to

make such dete rmi nat ions a n d this Court is not in a position to, and will not, second guess such determinations.”). Given the substantial evidence demonstrating petitioner ’ s refusal to remain in

contact with the DHHR or ev en attend all required hearings and meetings, it is cl ear th a t the

circuit court di d not err in finding that the DHHR made reasonable efforts to preserve the family.

Petitione r was simply no t receptive to them.

Ultimately, the court foun d that there was no reasonable likeli hoo d that petitioner coul d

s ubst an tial ly correct the conditions of abuse and neglect in the near fut ure and that termination of her par ental rights was necessary for the child ’ s welf are , the two findings necess ary for

termination of parental, custodial, and guardianship rights under West V irgi ni a Code § 49

- 4

- 604(c)(6) . Petitioner does not chall enge these fin dings on appeal. Further, we note that

“[t]ermination of p arental rights, the most drastic remedy under the statutory provision covering the dispositio n of neglected children , [W est Vi rgin ia Code § 49

- 4

- 604] . . . may be employed without the use of intervening l ess restrictive alternatives when it is found that t here is no reasonable likelihood under [West Virginia Code § 49

- 4

- 604(d)] . . . that conditio ns of neglect or abuse

can be sub stan ti a lly corrected.” Syllab us point 2, In re R.J.M. , 164 W.Va. 496,

266 S.E. 2d 114 (1980).

Syl. Pt. 5, In re Kristin Y. , 227 W. Va. 558, 712 S.E.2d 55 (2011). As set forth above, the court had ample evidence upon which to base this finding. Th eref ore , w e fi nd no error in the cir cui t court’s termination of peti tioner’s parental rights.

For the foregoing reasons, we fi nd no error in the decision of the circuit court, and its August 31 , 2021, order is hereby affirmed.

Affirmed.

ISSUED : 

### April 14, 20228 C O NCUR RED IN BY :

C hief Justice John A. H utchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justi ce Alan D. Moats sitting by temporary assignment