STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED In re: N.C. 

April 10, 2017 

No. 16-1140 RORY L. PERRY II, CLERK (Kanawha County 16-JA-235) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother J.C., by counsel Matthew A. Victor, appeals the Circuit Court of 

Kanawha County’s November 15, 2016, order terminating her parental rights to fifteen-year-old 

N.C.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel S. 

L. Evans, filed its response in support of the circuit court’s order. The guardian ad litem, Sharon 

K. Childers, filed a response 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 her parental rights without an 

improvement period. 

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 review, 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 Procedure. 

In May of 2016, the DHHR received a referral that petitioner hit N.C. in the face with her 

purse while intoxicated. N.C. told investigators that he found needles and loose pills in a drawer 

inside petitioner’s residence. Investigators also discovered that petitioner’s residence did not 

have electricity or running water. During the investigation, petitioner admitted that she had a 

history of substance abuse. Based upon this investigation, the DHHR filed a petition for abuse 

and neglect based on the above and the allegation that petitioner failed to supply N.C. with 

appropriate food or obtain proper medical care. 

Thereafter, the DHHR provided petitioner with services aimed at remedying the 

conditions of abuse and neglect. These services included, random drug screens, supervised 

visitation, and parenting and adult life skills classes. Petitioner also participated in a 

psychological evaluation during which she admitted to intravenous drug use. 

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). 

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In June of 2016, the circuit court held an adjudicatory hearing during which the circuit 

court heard testimony from petitioner and a Child Protective Services (“CPS”) worker. 

According to the CPS worker, petitioner’s residence did not have electricity. Furthermore, the 

worker testified that petitioner admitted that she used methamphetamine and hit N.C. in the face 

with her purse. Petitioner provided corroborating testimony that she used intravenous 

methamphetamine while N.C. was in the home, that she hit N.C. in the face, and that her home 

did not have electricity or running water. After considering the testimony, the circuit court 

adjudicated petitioner as an abusing parent by order entered on August 23, 2016. 

Two months later, the circuit court held a dispositional hearing during which it heard 

testimony from several witnesses. Petitioner’s parental education specialist testified that 

petitioner missed multiple appointments. Furthermore, the specialist testified that petitioner 

unequivocally refused parenting and adult life skills classes as part of her treatment plan. Aliana 

Swain, a supervised psychologist, testified that petitioner blamed others for her situation and saw 

little need to change her behavior. Finally, the circuit court was presented with evidence that 

petitioner failed approximately nine drug tests during the underlying proceedings. After 

considering the parties arguments, the circuit court terminated petitioner’s parental rights by 

order entered on November 15, 2016.2 This appeal followed. 

The Court has previously established 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 shall 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. 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 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 differently, 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). 

On appeal, petitioner argues that the circuit court erred in denying her motion for an 

improvement period. We disagree. Pursuant to West Virginia Code § 49-4-610(3)(A), a circuit 

court may grant a parent a post-adjudicatory improvement period when “[t]he [parent] moves in 

writing for the improvement period [and] demonstrates, by clear and convincing evidence, that 

the [parent] is likely to fully participate in the improvement period.” (Emphasis added). On 

appeal, petitioner cites to no written motion for an improvement period, and the record on appeal 

2

The child’s father is deceased. According to the guardian, as of the filing of her response 

brief, the permanency plan for the child is adoption by a family member. 

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is devoid of any such written motion. 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) (stating that “West Virginia law allows the circuit court discretion in deciding 

whether 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) (holding that “[i]t is within the court’s discretion to grant an 

improvement period within the applicable statutory 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 respondent 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). 

Here, it is clear from the record that petitioner failed to demonstrate her ability to fully 

participate in an improvement period. The circuit court was presented with evidence that 

petitioner failed approximately nine drug tests during the underlying proceedings and 

unequivocally refused to participate in parenting and adult life skills classes. Petitioner also 

blamed others for her situation and did not see a need to change her behavior. “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 

problem 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) (quoting In re: 

Charity H., 215 W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). As such, it is clear that petitioner 

failed to establish that she was likely to fully participate in a post-adjudicatory improvement 

period. 

Similarly, West Virginia Code § 49-4-604(a)(6) provides that circuit courts are directed 

to terminate parental rights upon finding 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 children’s welfare. West Virginia Code § 49-4-604(c)(3) 

provides that no reasonable likelihood that the conditions 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 plan or other rehabilitative efforts[.]” As previously mentioned, petitioner 

failed nine drug screens and unequivocally refused to participate in parenting and adult life skills 

classes to help remedy the conditions of abuse and neglect. Given these facts, we find no error in 

the circuit court’s ruling that there was “no reasonable likelihood that the conditions of neglect or 

abuse can be substantially corrected in the near future.” As such, we find no error in the circuit 

court’s termination of petitioner’s parental rights. 

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. 

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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 the 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 Procedures for Child 

Abuse and Neglect Proceedings for permanent placement of an abused and neglected child 

following the final dispositional order must be 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 (2011). Moreover, this Court has stated that 

“[i]n determining the appropriate permanent out-of-home placement of a 

child under W.Va.Code § 49-6-5(a)(6) [1996] [now 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 suitable 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 permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408 

S.E.2d 400 (1991). 

For the foregoing reasons, we hereby affirm the circuit court’s November 15, 2016, 

order. 

Affirmed. 

ISSUED: April 10, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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