### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

FILED

In re C.J. and J.K. 

### June 11, 2018

EDYTHE NASH GAISER, CLERK No. 18-0154 (Ohio County 16-CJA-146 and 147) SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Mother M.K., by counsel Gerasimo s Sklavounakis, appeals the Circuit Court of Ohio County’s January 18, 201 8, order terminating her pare ntal rights to C.J and J.K. 1 The West Virginia Department of Health a nd Human Resources (“DHHR ”), by counsel Lee Niezgoda, filed a response in su pport of the circuit court’s order. The guardian ad litem (“guardian”), Joseph J. Moses, filed a response on be half of the children in support of the circuit court’s order. On appeal, petiti oner argues that the ci rcuit court abused its discretion by denying her motion to extend her post-adjudicatory impr ovement period, denying her motion for a postdispositional 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.

In October of 2016, the DHHR filed a petition al leging that petitioner consistently abused controlled substances, used family resources to purchase drugs, left the children in the care of her boyfriend who was previously adjudi cated as an abusing parent, an d failed to provide adequate food and shelter for the children. Further, the DHHR alleged that petitioner told her boyfriend she was going to a substance abuse treatment facil ity, but never actually reported to that facility. The DHHR alleged that petitioner was missing fo r some time. Later, it was discovered that petitioner had an allergic reac tion to a medication and was indu ced into a medical coma. The circuit court held a preliminary hearing and f ound sufficient evidence of imminent danger to the
children.

Petitioner stipulated to th e allegations of drug abuse in December of 2016 and was adjudicated as an abusing parent. Petitioner mo ved for a post-adjudicatory improvement period and the circuit court granted her motion. The terms of petitioner’s post-adjudicatory

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).

1improvement period included random drug screens, a long-term drug treatment program, individualized therapy, parenti ng and adult life skills classes, mental health treatment, and weekly contact with her case worker.

The circuit court held a review hearing in April of 2017, where the DHHR alleged that petitioner was noncompliant with the terms of he r improvement period. Petitioner tested positive for marijuana on multiple drug screens and, as a re sult, her visitations with the children were suspended. Further, a provider can celled petitioner’s services due to petitioner’s nonparticipation in those services. Petitioner reported recent hea lth issues that require d hospitalization. A second review hearing in May of 2017 re vealed the same issues, including positive drug screens and failure to treat her mental health issues. Petitioner ultimately moved to extend her post

adjudicatory improvement period. However, the hearing for that motion was continued because petitioner was involuntarily co mmitted to a mental hospital. 2

The circuit court held two dispositional hear ings in October and November of 2017. Petitioner moved for a post-dispositional im provement period and the DHHR moved for termination of her parental right s. In support of her motion, peti tioner presented the testimony of a clinical psychologist from Northwood Health Systems. The psychologist testified that petitioner suffered from long-standi ng bipolar disorders. Given t hose disorders, the psychologist
testified that it was difficult to reach a prognosis and he coul d not predict when petitioner’s recovery would progress.

Ultimately, the circuit court found that petitione r did not successfully complete her post

adjudicatory improvement period. Petitioner did not attend all drug screens as required and tested positive when she did attend; her supervised visi tations were suspended as a result. Petitioner also did not fully participate in the services provided to her. Finally, the circuit court found that petitioner did not successf ully treat her substance abuse issues or her mental heal th conditions to the point of reaching stability. As a result, the circuit court found that there was no reasonable likelihood that petitioner would substantially correct the conditions that led to the abuse and neglect of her children and that it was in the best interest of the children to terminate her parental rights. Accordingly, the circuit court terminated petitioner’s parental rights by its January 18, 2018, order. Petitioner now appeals that order. 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 The dispositional order notes that petitione r was incarcerated on a llegations that she
“threatened a woman.” Petitioner was committed to William R. Sharpe Jr. Hospital while she
was incarcerated.

3 The respective fathers of C.J. and J.K. both participated in pre-adjudicatory improvement periods and were ultimately dismisse d from the case. According to the parties, the permanency plan of the children is continuation in their fathers’ custody with ongoing sibling
visitation.

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).

First, petitioner argues that the circuit cour t abused its discretion in denying her motion to extend her post-adjudicatory im provement period where petitione r was unable to substantially comply with the terms of that improvement peri od due to unexpected delays. Petitioner asserts
that she informed the circuit court of her recen t health issues in Ap ril of 2017, that required hospitalization and which rendered her incapable of participating for some time. Further, petitioner asserts that sh e was incarcerated in June of 2017, wh ich again led to her inability to participate. Upon our review of the record, we disagree.

Pursuant to West Virginia Code §49-4- 610(6), “a court may extend any improvement period granted pursuant to subd ivision (2) . . . when the c ourt finds the respondent has substantially complied with th e terms of the improvement pe riod[.]” Although petitioner argues that unexpected delays caused her noncomplian ce, petitioner was noncompliant for three months prior to April of 2017. The record clearly indicates that certain services were cancelled due to petitioner’s noncompliance before her hospitaliza tion in April of 2017. Similarly, the record does not reflect that petitioner began participating between her hospitalization and her incarceration. Also, petitioner continued to test positive for controlled substances throughout that time. Finally, petitioner does not take issue with the circuit court finding that sh e did not substantially comply with the terms of her improvement period. Accordingly, we find petiti oner is entitled to no relief.

Second, petitioner argues that the circuit court abused its discretion by denying her motion for a post-dispositional improvement period because she experienced a substantial change in circumstances. Petitione r asserts that she was participa ting in inpatient therapy, which was a substantial change from earlier in her post-adjudicatory improvement period. We disagree.

The statute governing post-dispositional impr ovement periods, West Virginia Code § 49

- 4-610(3), provides that “the cour t may grant an improvement peri od . . . when: [a] respondent demonstrates, by clear and convincing evidence, that the respondent is likely to fully participate in the improvement period.” Additionally, West Virginia Code § 49-4-610(3)(D) states that when a respondent has previously be en granted an improvement period the respondent must demonstrate “that since the initial improvement period, the responde nt has experienced a substantial change in circumstances. Further, th e respondent shall demonstrate that due to that change in circumstances, the respondent is likely to fully pa rticipate in the improvement period[.]” Moreover, the decision to grant or deny an improvement period rests in the sound

3discretion of the 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 disc retion in deciding whether to grant a parent an improvement period”).

The circuit court did not a buse its discretion in denying pe titioner’s request for a second improvement period because petitioner did not dem onstrate that she would substantially comply with the terms of such an improvement peri od. The circuit court found that petitioner was noncompliant with the terms of her prior improvement period. Petitioner’s alleged substantial change of circumstances is simply compliance with one of the multiple terms that she previously ignored. Further, petitioner’s tr eating psychologist could not provi de an opinion as to when her mental health status could improve. Thus, we find that the circuit c ourt did not abuse its discretion by denying petitioner’s motion fo r a post-dispositional improvement period.

The evidence above also supports the circuit court’s termination of petitioner’s parental rights. Although petitio ner argues that the circuit court abus ed its discretion in terminating her parental rights, the circuit cour t properly found that there was no reasonable like lihood that the conditions of abuse or neglect coul d be substantially corrected. Purs uant to West Virginia Code § 49-4-604(b)(6), the circuit court may terminate a respondents parental rights “[u]pon a finding
that there is no reasonable likelihood that the co nditions of neglect or abuse can be substantially
corrected in the near future a nd, when necessary for the welfare of the child[.]” Further, West Virginia Code § 49-4-604(c)(3) pr ovides that there is no reasonable likeli hood that the conditions of neglect and abuse can be substantially correc ted when “the abusing parent . . . [has] not responded to or followed through with a reasonable family case plan or other rehabilitative efforts. . . .” The circuit court found that petitioner was offered an opportunity to improve her parenting and that she had not successfully trea ted her substance abuse issues or her mental health conditions to the point of reaching st ability. Petitioner’s instability, which was exemplified by leaving her childre n without notice in the custody of an inappropriate person, was
the condition that led to the fi ling of the petition. Furt her, petitioner’s substance abuse continued to put the children at risk. Accordingly, the circuit cour t did not abuse its discretion in terminating petitioner’s parental rights.

For the foregoing reasons, we find no error in the decision of the circuit court, and its January 18, 2018, order is hereby affirmed.
Affirmed.

ISSUED : June 11, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum

Justice Elizabeth D. Walker

Justice Loughry, Allen H., II suspende d and therefore not participating.

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