### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED

In re E.T.-1 and E.T.-2 

### June 15, 2018

EDYTHE NASH GAISER, CLERK

No. 18-0237 (Taylor County 17-JA-15 and 16) SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Mother R.T., by couns el Gregory Michael, appeals th e Circuit Court of Taylor County’s February 5, 2018, order terminating he r parental rights to E.T.-1 and E.T.-2. 1 The West Virginia Department of Health and Human Res ources (“DHHR”), by counsel S.L. Evans, filed a response in support of the circui t court’s order and a supplemental appendix. The guardian ad litem (“guardian”), Ashley V. Williams Hunt, file d a response on behalf of the children also in support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating her parental rights when less-restrictive alternatives were available and when she substantially complied with her post- adjudicatory 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.

In February of 2017, the DHHR filed a child abuse and neglect petition against petitioner and the father. The DHHR alleged that the pare nts had a history of do mestic violence in the home. In 2015, petitioner obtaine d a Domestic Violence Protec tive Order (“DVPO”) against the father after he reportedly used fo rce against her, causing her a head injury that required staples to

close. Petitioner later dismissed the DVPO. Most recently, petitioner sought a DVPO against the father in January of 2017 after he loaded a rifle, put it to petitioner’s he ad, and told her he was going to kill her if she did not give him money. When peti tioner did not have the money requested, the father told her to gather her belongings and leave the residence. Petitioner was prohibited from taking the children with her. The DHHR also allege d that, at some point during this incident, the father verbally abused pe titioner, grabbed her ha ir, threw her on the ground, pushed her head against the floor, hit her, pull ed her up from the ground by her hair, shoved her

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). Additionally, because the children share the same initials, we will refer to them as E.T.-1 and E.T.-2, re spectively, throughout this memorandum decision.

1against the wall, and pushed his hand on her face. Despite the father’s being a convicted felon and being prohibited from possessing firearms, la w enforcement officers found firearms in the

home and observed the television to be shattered from what app eared to be a bullet hole. The DHHR further alleged that when it attempted to take custody of the children, petitioner

concealed them for several hours and did not c ooperate until she was thre atened with arrest. Finally, the DHHR alleged that petitioner continued to maintain contact with the father in direct violation of the DVPO. Based upon these alle gations, the DHHR concluded that petitioner abused the children by exposing them to domestic violence, failing to separate the children from the father, allowing firearms in the home w ith a convicted felon, preventing the DHHR from obtaining custody of the children, and failing to protect the children.

In March of 2017, the circuit court held an adjudicatory heari ng wherein petitioner stipulated to the allegations cont ained in the petition. The court a ccepted petitioner’s stipulation, adjudicated her as an abusing parent, and granted her a three-month post-adjudicatory improvement period. Subsequently, the guardian re quested that petitione r be granted a threemonth extension to her post-adjudicatory impr ovement period based on her compliance. The guardian noted that the children had recently been placed back in the home with petitioner. The circuit court granted the guardian’s request for the extension of petitioner’s post-adjudicatory improvement period.

In December of 2017, the maternal grandmother se nt a letter to the circuit court relaying her belief that petitioner had begun to associate with the father in viol ation of court order. Following receipt of the grandmother’s letter, the circuit court ordered the immediate removal of the children from petitioner’s care. After inve stigating the matter, the DHHR filed a summary with the circuit court in which it alleged that petitioner resumed her relationship with the father and that they had been seen together in public. The DHHR also indicated that, after the entry of the order granting immediate rem oval, petitioner’s brother reporte d that petitioner had a black eye and had requested that he transport her to the father’s home. A Child Protective Services (“CPS”) worker and law enforcement officers pro ceeded to petitioner’s residence at that time.

Petitioner’s brother arrived at the residence shor tly thereafter and petitioner, the father, and the children were present in the vehicle. Petitioner ex plained to the CPS worker and officers that she received the black eye during a car accident in which she was the passenger, but denied that the father was with her. She reported that this was he r first contact with the father since the petition was filed. However, the father reported that he was with petitioner during the alleged car

accident. The father was arrested at that time. The DHHR’s summar y also stated that petitioner

later told a CPS worker that she was with th e father because he was going to help her buy a trailer and told a service provider that the fath er had not been abusive towards her since they resumed their relationship. Based on these events, the DHHR recommended termination of petitioner’s parental rights.

The circuit court held a dispositional h earing in January of 2018, wherein petitioner requested an extension of her post-adjudicatory improvement period. Petitioner testified that the maternal grandmother was “over-reacting” and that she had only been having contact with the father for a few weeks because he was going to buy her a car. According to petitioner, she and the father were on their way to look at cars on the day he was arrested. Fu rther, she denied that she and the children were staying with the father and stated that she understood that the children

2were prohibited from having contact with the fa ther. After hearing evidence, the circuit court noted that petitioner continued to commit child a buse and/or neglect against the children during the pendency of the proceedings by allowing them to have contact with the father and willfully placing the children in harm’s way, which evidenced a lack of progress and insight into her parenting deficiencies. Ultimately, the circui t court found that there were no less-drastic

alternatives than removal of the children from petitioner’s care and that the children’s best interests required removal. Accordingly, the ci rcuit court denied peti tioner’s request for an extension of her post-adjudicatory improvement pe riod and terminated her parental rights. It is from the February 5, 2018, dispositi onal order 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 argues that the circuit co urt erred in terminating her parental rights

when less-restrictive alternatives were availabl e and when she substantially complied with the terms of her post-adjudicatory im provement period. Petitioner argues that the circui t court should have granted her an alternative disposition purs uant to West Virginia Code § 49-4-604(b)(4), which states that a circuit court may “[o]rder term s of supervision calculated to assist the child and any abusing parent or batter ed parent or parents or custodi an which prescribe the manner of supervision and care of the child and which are within the ability of any parent or parents or custodian to perform[.]” According to petitione r, she became aware in December of 2017 that her “dependency on [the father] jeop ardized her parental rights [and the circuit court] erred in not [o]rdering terms of supervision, i.e., intensive co unseling to address these issues.” We disagree.

West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental rights upon findings that there is “no reasonable li kelihood that the conditions of neglect or abuse can be substantially corrected in the near future” and that termina tion is necessary for the child’s

2 The parents’ parental rights were terminated below. The permanency plan for the children is adoption by a relative.

3welfare. According to West Virg inia Code § 49-4-604(c)(3), a s ituation in whic h there is no

reasonable likelihood the conditions of abuse and neglect can be s ubstantially corr ected includes

one in which

[t]he abusing parent or pare nts have not responded to or followed through with a reasonable family case plan or other rehabilitative efforts of social, medical, mental health or other rehabilitative ag encies designed to reduce or prevent the abuse or neglect of the child, as eviden ced by the continuation or insubstantial

diminution of conditions which threatened the health, welfare or life of the child[.]

Here, the record demonstrates that there wa s no reasonable likelihood that petitioner could correct the conditions of abuse and neglect. Petitioner was granted a post-adjudicatory improvement period and satisfactorily complied w ith services such that she was granted an extension and the children were returned to her care. However, despite participating in services throughout her improvement period and its extensi on, petitioner returned to the same behavior which led to the filing of the petition. The DHHR presented evidence that after the children were returned to her care, petitioner resumed her rela tionship with the father and allowed the children to be in his presence, in viol ation of court order and despite his violent history. Petitioner testified at the dispositional hearing that even though she knew that the father was prohibited from having contact with the children, she believe d her mother, who reported her actions to the circuit court, “over-react[ed].”

We have previously held that “[I]t is possible for an indivi dual to show ‘compliance with specific aspects of the case plan’ while failing ‘to improve . . . [the] overall attitude and approach to parenting.’” In the Interest of Carlita B. , 185 W.Va. 613, 626, 408 S.E.2d 365, 378 (1991)(quoting W.Va. Dep’t of Human Serv. v. Peggy F. , 184 W.Va. 60, 64, 399 S.E.2d 460, 464 (1990)). Petitioner exercised poor judgment by continuing to allow the father around her children. Indeed, her testimony at the dispositional hearing sugge sted that peti tioner did not understand the gravity of her actions. Further, in her brief on appeal, peti tioner asserts that her continued relationship with the father and th e potential ramifications only “became obvious in December of 2017,” which was after the extension of her improvement period had been granted

and the children had returned to her care. Thus , it is clear that while petitioner may have complied with some of the services offered to her throughout her improvement period, she did not change her attitude or approach to paren ting and, as such, did not meaningfully follow through with the case plan aimed at addressing the conditions of abuse. Contrary to petitioner’s

assertions that the circuit court should have granted her a less-rest rictive dispositio n in light of her “considerable compliance,” we have previously held that

“[t]ermination 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).

4Syl. Pt. 5, In re Kristin Y. , 227 W.Va. 558, 712 S.E.2d 55 (2011). Based upon the evidence, we

find that there was no reasonabl e likelihood that petitioner could correct the conditions of abuse and that termination was necessary for the child ren’s welfare. Accordingly, we find no error.

For the foregoing reasons, we find no error in the decision of the circuit court, and its February 5, 2018, order is hereby affirmed.

Affirmed.

ISSUED : June 15, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum

Justice Elizabeth D. Walker

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

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