### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

FILED In re J.H. 

### October 12, 2018
No. 18-0256 (Taylor County 17-JA-42) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Grandmother L.B., by counsel Keith Skeen, appeals the Circuit Court of Taylor County’s February 20, 2018, order terminating he r parental and/or cu stodial rights to J.H. 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”), Terri L. Tichenor, filed a response on beha lf of the child also in su pport of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in finding that this case involved aggravated circumstances and that th e prior issues of abuse had not been corrected, making findings of fact that were not supported by the evid ence, and denying her a postdispositional improvement period.

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.

Prior to the initiation of the underlying pro ceedings, petitioner’s pa rental rights to her
children were involuntar ily terminated in December of 2005. Petitioner’s Child Protective Services (“CPS”) history included referrals for re fusal to obtain medical treatment, educational neglect, and several referrals for general negl ect and lack of supervision. Despite having her parental rights to her two children terminated , petitioner obtained lega l guardianship of her grandchild, J.H., the only child at i ssue in this appeal, in May of 2014.

In March of 2017, the DHHR filed the instan t child abuse and neglect petition against petitioner alleging that she allowed the child ar ound her biological mother unsupervised, against

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).

1court order. Specifically, in Febr uary of 2017, petitioner allowed the child to stay overnight with the mother. Upon learning that the child was being exposed to drug use, petitioner retrieved the child and called the police. However, during thei r investigation, the DHHR discovered that this
was not the first incident wherei n petitioner exposed the child to the mother as only eight days after obtaining guardianship of the child in 201 4, petitioner allowed the mother to babysit the child. The DHHR also alleged that despite peti tioner removing the child from the mother’s home in February of 2017 due to drug use and insisting that she woul d not allow the mother around the child, she permitted the mother to move into her home. The petition also included numerous CPS referrals regarding petitioner’s care of the child, such as her refusal to obtain medical treatment
for the child in 2015 and educatio nal neglect. In sum, the DHHR concluded that aggravated circumstances existed due to petitioner’s prior term ination of parental rights and that she abused and/or neglected the child due to having no substantial change in circumstances since that time, her neglect of the child’s hygiene and educati on, her failure to prevent the mother from supervising and having inappropria te contact with the child, a nd failing to protect the child.

The circuit court held two adjudicatory hearings in June of 2017 and July of 2017. Petitioner stipulated to the alle gations contained in the petition and requested a post-adjudicatory improvement period. The circuit court accepted petiti oner’s stipulation and ad judicated her as an abusing parent/custodian.

The circuit court held two di spositional hearings in Sept ember of 2017 and February of
2018. Petitioner testified that her parental rights to her children were invol untarily terminated in 2005 due to her drug addiction. Since that time, petitioner addressed the issue and had been “clean” for nearly thirteen years. Petitioner also testified that sh e complied with drug screens as directed, all of which were negative. However, petitioner stated that she was unable to attend parenting classes as there had b een no referral from CPS. Petitioner testified that she would participate in any services and presented the testimony of three fr iends who stated that they had not observed any abuse or neglec t by petitioner. An interview of the child conducted by the Child Advocacy Center (“CAC”) was submitted into evidence wherein the child disclosed that she often woke up in the middle of the night to discover that petitioner was gone and she would
be alone for several hours. The ch ild also disclosed that she ha d bruises caused by her mother, and that petitioner knew about the bruises and ac tively tried to cover them. Finally, the child

stated that she did not feel safe in the home and did not want to return to petitioner’s care.

After hearing evidence, the ci rcuit court found that this was a case involving aggravated circumstances due to petitioner’s prior involuntary termination of parental rights because of her drug addiction and failure to supervise her children. The circuit court noted that petitioner
continued to allow the mother to have contact with the child after being removed from her custody, despite knowing of the mother’s drug pr oblem, and failed to cooperate fully with the DHHR by disclosing confidential information a bout the case. As suc h, the circuit court determined that petitioner was not amenable to services and found that there was no less-drastic
alternative to termination of her parental and/or custodial rights and that such termination was in
the child’s best interest. It is from the Fe bruary 20, 2018, dispositional order denying her motion

2for an improvement period and terminating her pa rental and/or custodia l rights that petitioner appeals. 2

The Court has previously established the follo wing standard of review in cases such as
this:

“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).

On appeal, petitioner first argues that the circuit court erred in making findings of fact not supported by the evidence. Specifi cally, petitioner alleges that th e circuit court erred in finding
that she was not amenable to services and that she refused services. Acco rding to petitioner, she
never refused services and demonstrated that sh e was interested in participating in the case. However, in support of her argument, petitioner cites to documents not included in the appendix on appeal. Moreover, the circuit court had suffi cient evidence upon which to make these findings
of fact. The circuit court vi ewed the interview of the child, heard testimony from several witnesses, and reviewed the family case plan and court summaries. The circuit court was also able to observe petitioner’s continued divulgence of confidential information via social media, despite having been told several times not to do so. Based upon this evidence, the circuit court concluded that petitioner was not amenable to serv ices, largely due to her failure to correct the
conditions of abuse which first arose regarding her own childre n in 2005 and continued unabated in the instant proceedings. We have previously held that “[a] reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely situated to make such
determinations and this Court is not in a position to, and will not, second guess such
determinations.” Michael D.C. v. Wanda L.C. , 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997). Because the circuit court was presented with am ple evidence and was uniquely situated to weigh

2 The mother voluntarily relinquished her parental rights to the child below. According to the DHHR, the father’s identity was unknown and, as such, the circuit court terminated the unknown father’s parental rights. The child was pl aced in a foster home with a permanency plan of adoption therein.

3the same, we agree with its findings and further fi nd that petitioner is entitled to no relief in this regard.

Petitioner next argues that the circuit cour t erred in finding that the case involved aggravated circumstances and that the prior ci rcumstances of abuse and neglect had not been remediated. According to petitione r, her parental rights to her children were terminated based upon her drug abuse problem, which she alleges has been remediated. As such, petitioner argues
that the circuit court should not have found that aggravated circumstances existed in this case. We disagree. We have prev iously held as follows:

[w]here there has been a prior involuntar y termination of pa rental rights to a sibling, the issue of whether the parent has remedi ed the problems which led to the prior involuntary termination sufficien t to parent a subsequently-born child must, at minimum, be reviewed by a court, and such review s hould be initiated on a petition pursuant to the provisions gove rning the procedure in cases of child neglect or abuse set forth in West Virg inia Code §§ 49-6-1 to -12 (1998) [now West Virginia Code §§ 49-4-601 thr ough 49-4-610]. Although the requirement that such a petition be filed does not manda te termination in all circumstances, the legislature has reduced the minimum threshold of evidence necessary for
termination where one of the factors outline d in West Virginia Code § 49-6-5b(a) (1998) [now West Virginia Code § 49-4-605(a)] is present.

In re Kyiah P. , 213 W.Va. 424, 427, 582 S.E.2d 871, 874 (2003) (quoting Syl. Pt. 2, In the Matter of George Glen B. , 205 W.Va. 435, 518 S.E.2d 863 (1999)).

Contrary to petitioner’s asserti ons that her parental rights to her children were terminated based solely upon her prior drug abuse problem, the circuit court found that petitioner’s parental rights to her children were terminated “due to drug addiction and failure to supervise her children, over a long period of time[.]” While it does appear that petitioner addressed her drug abuse problem, she did not demonstrate that sh e addressed her issues with supervising the
children in her care. The record indicates that petitioner allowed J.H. to be supervised by her biological mother several times, against court or der and despite her knowledge of the mother’s drug abuse. The child also disclosed that petitioner was aware that her bruises were caused by the mother but actively tried to cover them. Moreover, the child disclosed th at she often woke in the middle of the night to find herself alone for several hours and expressed fear of experiencing
the same were she to be return ed to petitioner’s car e. As such, we find that the DHHR properly filed a petition based upon aggrav ated circumstances as petitio ner’s parental rights to her children were previously terminated. Further, we find that the circui t court did not err in determining that petitioner failed to remedy the conditions of abuse and neglect as she clearly has not addressed her issues with properly supervising the children under her care since the prior
termination.

Finally, petitioner argues that the circuit court erred in de nying her a post-dispositional improvement period. According to petitioner, sh e complied with drug screens and obtained her own psychological evaluation, demonstrating that she would comply with an improvement period. Petitioner also claims that the circuit court erred in te rminating her parental rights

4without first employing a less-rest rictive alternative, such as an improvement period. However, we find each of petitioner’s arguments to be without merit.

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 Virginia
law allows the circuit court discretion in deci ding 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) (“It is within the court’s discretion to gran t an improvement period with in the applicable statutory requirements.”). We have also held that a pare nt’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 part icipate in the improvement period . . . .’” In re Charity H.

, 215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004).

On appeal, petitioner failed to establish that the circuit court e rred in denying her an improvement period. While it is true that petitione r testified to her willi ngness to participate in the terms and conditions of an improvement period, the evidence supported the circuit court’s denial of the same. This is especially true in li ght of the fact that petit ioner continually divulged
confidential information via social media in direct violation of court orde r. Moreover, petitioner

continues to maintain th at her parental rights were previously terminated based solely upon her prior drug abuse problem when the record clearl y demonstrates that she also received CPS referrals due to her neglect and failure to prope rly supervise her children. We have held that

[i]n order to remedy the abuse and/or ne glect problem, the problem must first be acknowledged. Failure to acknowledge the ex istence 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 Charity H. , 215 W.Va. at 217, 599 S.E.2d at 640). Despite having had her parental rights to her children terminated under similar circumstances regarding improper supe rvision, the underlying petition was filed, in part, due to petitioner’s failure to properly supervise J.H., as she al lowed her to have contact with the biological mother. As set forth above, petit ioner failed to acknowledge or address the conditions of abuse since her prio r termination of parental right s. Therefore, an improvement period would have been an exercise in futility and we find no error in the circuit court’s decision to deny petitioner the same when she failed to de monstrate that she was likely to participate in
services.

We likewise find no merit to petitioner’s claim th at a less-restrictive al ternative, such as an improvement period, should have been employed prior to termination of her parental rights. Not only does petitioner cite to no authority requir ing circuit courts to grant parents improvement periods before terminating their pa rental rights, but this Court, in fact, has held that “courts are not required to exhaust every speculative possibi lity of parental improvement . . . where it appears that the welfare of the child will be se riously threatened . . . .” Syl. Pt. 4, in part, In re

Kristin Y. , 227 W.Va. 558, 712 S.E.2d 55 (2011) (quoting Syl. Pt. 1, in part, In re R.J.M., 164

5W.Va. 496, 266 S.E.2d 114 (1980)). Mo reover, “[t]ermination . . . may be employed without the use of intervening less restric tive alternatives when it is f ound that there is no reasonable likelihood . . . that conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 7, in
part, In re Katie S. , 198 W.Va. at 82, 479 S.E.2d at 592. Pursua nt to West Virginia Code § 49-4

- 604(c)(3), a situation in which there is no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected includes one in which “[t]he abusing parent . . . ha[s] not responded to or followed through with a reasonable family case plan or other rehabilitative efforts[.]” Here, petitioner’s parental rights to her own children were terminated based, in part, on her neglect and failure to properly supervis e her children. After becoming the guardian of J.H., petitioner continued to behave in the same abusive manner by leaving the child unattended with the biological mother, ag ainst court orders and despite knowledge of her drug use. Petitioner actively tried to hide physical evidence of the biological mother’s abuse and left the child alone, at night, for hours at a time. As suc h, despite having participated in services to address this condition of abuse in the prior proceedings, petitioner did not respond to these rehabilitative efforts. Accordingly, we find th at there was sufficient evidence upon which to find
that there was no reasonable like lihood that petitioner could correct the conditions of abuse in the near future and that termination was necessary for the child’s welfare. As mentioned above,

circuit courts are to terminate parental rights upon such findings.

For the foregoing reasons, we find no error in the decision of the circuit court, and its February 20, 2018, order is hereby affirmed.

Affirmed.

ISSUED : October 12, 2018

CONCURRED 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, suspende d and therefore not participating

6