STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
June 6, 2016
In re: B.F. RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 16-0076 (Mercer County 15-JA-36)
MEMORANDUM DECISION
Petitioner Mother R.T., by counsel Elizabeth A. French, appeals the Circuit Court of
Mercer County’s December 17, 2015, order terminating her parental rights to two-year-old B.F.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Christopher S. Dodrill, filed its response in support of the circuit court’s order. The guardian ad
litem (“guardian”), Catherine Bond Wallace, filed a response on behalf of the child supporting
the circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating
her parental rights and denying her request for a post-adjudicatory improvement period.2
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 April of 2015, the DHHR filed an abuse and neglect petition alleging that petitioner
abused the child by fabricating a sexual abuse allegation against the child’s father. The DHHR
further alleged that petitioner posed an imminent danger to the child because she was mentally
and emotionally unstable and her mental illness prevented her from caring for the child. In April
of 2015, the circuit court held a status hearing and ordered petitioner to undergo a psychological
evaluation.
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).
2
We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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In May of 2015, the circuit court held an adjudicatory hearing wherein petitioner failed to
appear but was represented by counsel. Counsel advised the circuit court that petitioner “appears
to present some mental health issues” and that she declined to communicate with her counsel.
Based on the representations of counsel, the circuit court continued the adjudicatory hearing until
June of 2015.
In June of 2015, the circuit court held an adjudicatory hearing and heard testimony from
the DHHR worker that investigated the sexual abuse allegations against B.F.’s father. The
worker testified that he received three referrals from petitioner, all alleging that the father anally
raped the child. He also testified that petitioner later recanted the allegations and told the worker
that she “needed somebody to listen to her.” No physical evidence substantiated the allegations.
Petitioner testified that she had been previously treated for mental health issues but she rejected
her diagnosis based on her own research and diagnosis of symptoms. She also denied falsely
accusing the father of sexual abuse. At the conclusion of the hearing, the circuit court recognized
petitioner’s poor mental health and found that petitioner abused and neglected the child due to
her untreated mental health issues. Following the adjudicatory hearing, petitioner filed a motion
for a post-adjudicatory improvement period. Thereafter, the DHHR filed a motion to terminate
petitioner’s parental rights. The circuit court ordered the parties to gather more information
regarding petitioner’s psychological history, directed that she undergo a psychological
evaluation, and delayed ruling on petitioner’s motion.
In October of 2015, the circuit court held a hearing on petitioner’s motion for an
improvement period wherein her psychological evaluation was presented. The report indicated
that petitioner was diagnosed with multiple mental health disorders and her prognosis to
effectively parent the child was extremely poor. The circuit court found that the accusations of
sexual abuse against the father were never substantiated and petitioner “needs a serious mental
health intervention.” The circuit court again found that petitioner abused and neglected the child
due to her mental health issues and denied her motion for an improvement period.
In December of 2015, the circuit court held a dispositional hearing wherein a
psychologist testified regarding petitioner’s forensic examination. The psychologist testified that
she diagnosed petitioner with “child physical, sexual, and psychological abuse;” borderline
personality disorder; and an unspecified anxiety disorder. The psychologist testified that
petitioner was observed by a witness touching the child’s penis and telling him that it was his
father touching his penis. During the evaluation, petitioner described her relationship with the
child as “intimate.” The psychologist testified that petitioner denied any problems with her
parenting or with mental health disorders, lacked insight into the seriousness of her mental health
diagnosis, and refused treatment. She also testified that petitioner’s prognosis for improvement in
the care of the child was poor and she “would have significant reservations about putting any
child in [petitioner’s] care.” Other witnesses, including a West Virginia State Trooper and a
DHHR worker, testified that petitioner displayed erratic and unstable behavior, admitted to drug
use, and physically and verbally abused the child. Following the presentation of the evidence, the
circuit court again denied petitioner’s request for a post-adjudicatory improvement period and
terminated her parental rights to the child by order dated December 17, 2015. The circuit court
found that there was no reasonable likelihood that the conditions of abuse and neglect could be
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substantially corrected in the near future and that termination was in B.F.’s best interests. It is
from this order that petitioner now appeals.
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 a post
adjudicatory improvement period. We have previously held that “[i]t is within the court’s
discretion to grant an improvement period within the applicable statutory requirements[.]” Syl.
Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996). We find that the circuit court
did not abuse its discretion in denying petitioner’s motion for a post-adjudicatory improvement
period. Petitioner argues that she admitted to some of the allegations in the petition and presented
evidence of her ability to participate in an improvement period by independently seeking
counseling. Regarding the grant of a post-adjudicatory improvement period, and pursuant to
West Virginia Code § 49-4-610(2)(B), petitioner must demonstrate, “by clear and convincing
evidence, that [she] is likely to fully participate in the improvement period.” Here, it is clear
from the record that petitioner failed to carry her burden under the statute. Throughout the
proceedings, petitioner exhibited erratic behavior, was unwilling to participate in treatment,
failed to appear for over half of her supervised visits with B.F., verbally abused B.F., and
admitted to drug and alcohol abuse. Petitioner continued to reject her mental health illnesses
based on her own research and diagnosis of symptoms. Further, the circuit court found that
petitioner’s ability to parent the child would not improve until she acknowledged the “need for
change and treatment.” However, petitioner ignored the nature of her mental health illnesses and
offered no evidence to refute the psychologist’s testimony that treating her particular mental
illnesses would be very difficult. Thus, we find that the circuit court correctly denied petitioner’s
request for a post-adjudicatory improvement period.
Next, petitioner argues that the circuit court erred in terminating her parental rights
because she independently sought mental health treatment. Pursuant 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
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[t]he abusing parent . . . [has] not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts of social, medical,
mental health or other rehabilitative agencies designed to reduce or prevent the
abuse or neglect of the child, as evidenced by the continuation or insubstantial
diminution of conditions which threatened the health, welfare or life of the
child[.]
In addition to her refusal to acknowledge or treat her mental illnesses, the record is
devoid of any evidence that petitioner independently sought mental health treatment. There are,
however, numerous examples in the record that demonstrates petitioner’s inability to participate
in a family case plan or obtain mental health treatment. The circuit court specifically found that
petitioner had “gotten worse over time” despite the DHHR’s rehabilitative efforts. As such, the
circuit court was presented with sufficient evidence to find that there was no reasonable
likelihood that petitioner could substantially correct the conditions of abuse and neglect in the
near future. West Virginia Code § 49-4-604(a)(6) expressly provides that the circuit courts are
directed to terminate parental rights upon this finding when necessary for the child’s welfare.
Moreover, we have previously held that “‘courts are not required to exhaust every speculative
possibility of parental improvement . . . where it appears that the welfare of the child will be
seriously threatened . . . .” Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114
(1980).” Syl. Pt. 4, in part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). As noted above,
the circuit court had serious concerns about petitioner’s ability to care for the child as supported
by the evidence. Given the circumstances presented in this case, we find no error in the circuit
court’s order terminating petitioner’s parental rights to the child.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 17, 2015, order is hereby affirmed.
Affirmed.
ISSUED: June 6, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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