### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED

In re A.S. 

### October 12, 2018

EDYTHE NASH GAISER, CLERK No. 18-0372 (Kanawha County 17-JA-148) SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Mother S.S., by counsel Sandra Bullman, appeals the Circuit Court of Kanawha County’s March 30, 2018, order termin ating her parental rights to A.S. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy Parsley, filed a response in sup port of the circuit court’s order. The guardian ad li tem (“guardian”), Sharon Childers, filed a response on behalf of the child in support of the circuit court’s order and a supplemental appendix. On appeal, petitioner ar gues that the circuit co urt erred in denying her motion for a post-adjudicatory improvement peri od and in 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 March of 2017, the DHHR filed a petition alleging that pet itioner engaged in domestic violence in the presence of A.S. and also physic ally and mentally abus ed the child. The DHHR further alleged that the father was arrested and charged with third-offense domestic battery after choking petitioner and throwing he r into an entertainment cen ter. According to the DHHR, petitioner entered into a safety plan in Febr uary of 2017 following that incident wherein she agreed not to permit the father to have contac t with the child. However, the DHHR alleged that petitioner and the child spent the night with the fa ther immediately after hi s release in March of 2017. In addition, the DHHR alleged that petitione r had a history of substance abuse and a prior involuntary termination of parental rights to four other children which occurred in 2011. Petitioner waived her preliminary hearing in Ap ril of 2017. The circuit court ordered petitioner

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).

1to participate in supervised visitations, random drug screening, and domestic violence counseling.

The circuit court held an adjudicatory hear ing in May of 2017 and petitioner stipulated that she exposed her child to domestic violence. Based on her stipulation, the circuit court adjudicated petitioner as an abusing parent . Petitioner made an oral motion for a post

adjudicatory improvement period and the circuit c ourt held that motion in abeyance. In addition to the services already ordered, the circuit court ordered petitioner to participate in a psychological evaluation. Following a subsequent hearing in Ju ly of 2017, the circuit court ordered petitioner to “comply with all r ecommendations contained in her psychological

evaluation.” Those recommendations included individual therapy, random drug screening, parenting and life skills classes, and drug counseling meetings.

In November of 2017, the circuit court held a dispositional heari ng; petitioner did not appear, but was represented by counsel. The DHHR presented the testimony of petitioner’s case worker who testified that she had been noncompliant in services. The worker testified that petitioner failed to complete domestic violence cl asses, had not started lif e skills or parenting classes, and inconsistently drug screened. Additionally, the worker was concerned with petitioner’s past decisions to a llow the father around herself and the child. The worker testified that, despite DHHR safety and pr otection plans, petitioner consis tently allowed the father around herself and the child. Further, the worker testifie d that the father was consistently violent with petitioner and that issue persiste d for months before this petiti on was filed. Petitioner presented no evidence in response. Ultimately, the circ uit court found that there was no reasonable likelihood that the conditions of abuse and negl ect could be substantially corrected because petitioner failed to follow through with a reasonable family case plan. Accordingly, the circuit court terminated petitioner’s pa rental rights in its March 30, 2018, order. Petitioner now appeals

that order. 2

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

2 The father’s parental rights were also termin ated below. According to the parties, A.S.’s permanency plan is adoption by his maternal grandmother with post-termination visitation by petitioner if she completes substance abuse treatment and domestic violence classes.

2the 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 proceedings below.

Petitioner argues that the circuit court erre d in denying her motion for a post-adjudicatory improvement period. Petitioner asserts that she en rolled and participated in several services which showed that she could substantially comply with the terms of an improvement period. We disagree. West Virginia Code § 49-4-610(2) provides that a circuit court may grant a post

adjudicatory improvement period when the parent “files a written motion requesting the improvement period” and the parent “demonstrat es, by clear and convincing evidence, that the [parent] is likely to fully participate in the im provement period[.]” The decision to grant or deny an improvement period rests in the sound discretion of the circuit court. See In re M.M. , 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Vi rginia law allows the circuit court discretion in deciding wh ether to grant a parent an improvement period.”); Syl. Pt. 6, in part, In

re Katie S. , 198 W.Va. 79, 479 S.E.2d 589 (1996) (“It is within the court’s discretion to grant an improvement period within the applicable statutor y requirements.”). We have also held that a parent’s “entitlement to an improvement period is conditioned upon the ability of the [parent] to demonstrate ‘by clear and convincing evidence, that the [parent] is likely to fully participate in the improvement period . . . .’” In re Charity H. , 215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004).

The circuit court correctly denied petit ioner’s motion for a post-adjudicatory improvement period for two reasons. First, peti tioner never filed a written request for a post

adjudicatory improvement period as require d by West Virginia Code §49-4-610. Although petitioner asserts this motion was filed in October of 2017, it is clear from the record that the motion was not filed until after petitioner’s parent al rights were terminated. Second, petitioner could not demonstrate that she would fully part icipate in the terms of an improvement period. Petitioner was given a substant ial period of time between the adjudicatory hearing and the dispositional hearing and ordered to participat e in services during that time. Despite this, petitioner did not begin the parenting and adult life skills classes. Further, petitioner participated in drug screening, but her participation was inc onsistent. Most importantly, petitioner attended only “a few” domestic violence classes. Accordingl y, we find that the circu it court did not err in denying petitioner’s motion for a post- adjudicatory improvement period.

Petitioner also argues that the circuit cour t erred in terminating her parental rights because she was attending an inpatient treatment program. According to petitioner, the child was placed with a relative and “[n] o harm would come to the child to allow the mother the opportunity to complete her inpatient treatment pr ogram prior to final disposition in this matter.” We disagree with petitioner. We have previously held that

“[c]ourts are not required to exha ust every speculative possibility of parental improvement . . . where it appears that the welfare of the child will be seriously threatened, and this is particul arly applicable to children under the age

3of three years who are more susceptible to illness, need consistent close interaction with fully committed adults, and are likely to have their emotional and physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re
R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Cecil T. , 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt . 4. A.S. is a young child who needs consistency in her life. Although petitioner alle ges that she entered in to a substance abuse program, she presented no evidence regarding her actual admittance to that program or its terms. Further, petitioner ignores that she stipulated to exposing the child to domestic violence and made little to no effort in remedying that issue. As such, it is clear petitioner failed to address the issues of abuse and neglect that necessitated the child’s removal.

Further, the evidence of petitioner’s failure to comply with services also supports the termination of her parental righ ts. West Virginia Code § 49-4-604( b)(6) provides that the circuit court may terminate parental righ ts when “there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future” and when termination is necessary for the welfare of the children. Furthe r, West Virginia Code § 49-4-604(c)(3) provides

that there is no reasonable likelihood that the co nditions of neglect or abuse can be substantially corrected when the parent has “not responded to or followed through with a reasonable family case plan or other rehabilitative efforts[.]” The circuit court co rrectly terminated petitioner’s parental rights because there was no reasonable li kelihood that the conditions of abuse or neglect could be substantially correcte d. The DHHR demonstrated that petitioner was not complying with a reasonable case plan desi gned to rectify the condi tions of abuse and ne glect. Further, the evidence showed that petitioner co nsistently exposed A.S. to the father and domestic violence against DHHR directives and the best interests of herself and A.S.

“Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, W. Va.Code [§] 49-6-5 [now West Virginia Code § 49-4- 604] . . . may be employed without the use of intervening less rest rictive alternatives when it is found that there is no

reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code § 49-4-604(c)] . . . that conditions of ne glect or abuse can be substantially corrected.” Syllabus 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). The record supports the circuit court’s finding that there was no reasonable likeli hood that the conditions of abuse or neglect could be substantially corrected within a reasonab le time and that termination was necessary for the child’s welfare. Therefore, 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 March 30, 2018, order is hereby affirmed.

Affirmed.

ISSUED : October 12, 2018

4CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Paul T. Farrell sit ting by temporary assignment

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating.

5