STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: L.L.
June 9, 2017
No. 16-1227 (Jackson County 15-JA-142) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Grandmother B.L., by counsel Seth Harper, appeals the Circuit Court of
Jackson County’s November 30, 2016, order terminating her custodial rights to L.L.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Erica
Brannon Gunn, filed a response on behalf of the child in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in finding that she did not successfully
complete 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 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 November of 2015, the DHHR filed an abuse and neglect petition against the child’s
mother based upon allegations of abandonment due to her ongoing criminal activity.2 The
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
The petition contained additional allegations against other adult respondents. Namely,
the petition alleged abuse and neglect as to D.L. and L.W. in regard to their three children, who
also lived in the grandmother’s home. Because petitioner raises no argument in regard to these
additional children, they are not the subject of this appeal. However, because the conditions of
abuse and neglect in the home were predicated, in part, upon these adult respondents’ actions, it
is important to address their relationships and living arrangements herein. According to the
DHHR, petitioner’s adult daughter, D.L., and her boyfriend, L.W., lived in petitioner’s home
with their three children. The petition further alleged that three other adults lived in the home:
M.L. (mother of L.L.), C.L., and A.L. According to the DHHR, these additional adults abused
(continued . . . )
1
DHHR subsequently filed two amended petitions, one of which added petitioner, grandmother of
L.L., as a respondent. According to this amended petition, L.L. resided with petitioner. The
DHHR alleged that petitioner abused and/or neglected the child by virtue of exposure to chronic
domestic violence. The DHHR also alleged that petitioner allowed her adult children to live in
the home despite their drug use. The DHHR also included additional allegations as to the
conditions in the home in an amended petition after further disclosures by L.L. Petitioner
thereafter waived her right to a preliminary hearing.
In February of 2016, petitioner stipulated to the DHHR’s allegations that she exposed the
child to domestic violence. In April of 2016, the circuit court granted petitioner a post
adjudicatory improvement period.
In October of 2016, the circuit court held a series of hearings regarding petitioner’s
improvement period. According to the record, the psychologist who performed petitioner’s
psychological evaluation concluded that petitioner refused to accept responsibility for the actions
that led to the petition’s filing. According to the evaluator, petitioner’s answers to test questions
indicated that she was “faking,” especially given the fact that petitioner indicated she saw no
need to change her behavior. This assessment was supported by petitioner’s comment that “she
could write the book on parenting.” Overall, the evaluator found petitioner had a history of
volatile and unstable relationships with her children, including engaging in physical altercations
and inappropriate expressions of anger. According to the evaluator, petitioner’s behavior during
supervised visitations suggested that she viewed her own priorities as being so important that
others should defer to them. The evaluator also noted that petitioner showed little empathy to the
child in regard to the environment she provided.
The report also discussed petitioner’s own history of DHHR involvement, which resulted
in her own children’s removal for a period of three months in 1998 following domestic violence
in the home. According to the evaluator, petitioner contacted the DHHR and expressed a desire
to abandon her daughter. When the DHHR declined to pick the child up, petitioner threatened to
kill the child. As to the potential return of L.L. to the home, the evaluator stated that such a
placement was not in the child’s best interests given petitioner’s boundary issues with the child,
which included discussing inappropriate topics and treating the child like a peer. According to
the evaluator, such a relationship could impede the child’s development. As evidenced by
petitioner allowing drug use and domestic violence in the home, the evaluator indicated an
extremely poor prognosis for her improved parenting.
In regard to her improvement period, DHHR employees testified to petitioner’s failure to
complete parenting and adult life skills services. Although it was noted that petitioner complied
with services, the providers indicated that petitioner failed to make any meaningful changes. In
fact, one provider testified that the conditions of abuse and neglect were ongoing, as she
personally witnessed individuals who were under the influence of drugs in the home. A service
drugs and were previously convicted of offenses related to the manufacturing of
methamphetamine. As of the filing of the DHHR’s initial petition, L.L.’s father was deceased.
2
provider also testified to petitioner threatening to accuse the provider of sexual abuse so that it
would be reported in the local newspaper and ruin the provider’s reputation. This provider
testified that she eventually ceased petitioner’s services and that the DHHR had to go through
several different workers before it found someone comfortable working with petitioner. Another
provider expressed concern about returning the child to petitioner’s care, especially given
petitioner’s continued associations with inappropriate individuals. Ultimately, the circuit court
found there was conflicting evidence regarding petitioner’s completion of certain services and
treatment for her psychological diagnosis. The circuit court found that, although she participated
in services, petitioner failed to make any lasting changes. Accordingly, the circuit court found
that it did “not believe that the improvement period . . . successfully remedied the circumstances
that led to the filing” of the petition. The circuit court further found that it was not in the child’s
best interests to be returned to petitioner. As such, the circuit court terminated petitioner’s
custodial rights to the child.3 It is from this order that petitioner appeals.4
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
3
The child’s father is deceased. As of the filing of their briefs, both the DHHR and the
guardian indicate that the child’s mother was recently released from incarceration and granted a
post-adjudicatory improvement period. Respondents further state that the permanency plan for
the child is reunification with the mother. According to respondents, the child is currently placed
at the Golden Girls Group Home in order to receive treatment related to behavioral issues she
exhibited in her various foster placements. According to the family case plan, the concurrent
permanency plan for the child is placement in a therapeutic foster home.
Because the parties herein indicate that the proceedings, as they relate to L.L., are
ongoing, the Court reminds the circuit court and the parties of their roles in establishing
permanency for children in abuse and neglect proceedings. See W.Va. R. P. for Child Abuse and
Neglect Proc. 39(b) (establishing a duty to hold a permanent placement review hearings until
permanent placement is achieved); W.Va. R. P. for Child Abuse and Neglect Proc. 43 (requiring
circuit courts to achieve permanent placement of an abused and neglected child within twelve
months of disposition). Additionally, the Court reminds the guardian that her “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).
4
On appeal, petitioner does not raise a specific assignment of error regarding the circuit
court’s termination of custodial rights.
3
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). Upon our review, the Court finds
no error in the proceedings below.
On appeal, petitioner argues that the circuit court erred in finding that she failed to
successfully complete her post-adjudicatory improvement period. In support of this argument,
petitioner relies almost entirely on the testimony of her most recent service provider. According
to this provider, petitioner completed parenting services. This provider was also of the opinion
that petitioner could provide the child with a safe, suitable home. As such, petitioner argues that
it was disingenuous for the DHHR to argue against the opinion of its service provider.
Specifically, petitioner argues that the circuit court should not have disregarded this provider’s
testimony in reaching its determination of whether petitioner successfully completed her
improvement period. We note, however, that petitioner’s reliance on testimony from this
provider entirely ignores other conflicting evidence related to her lack of progress in the
improvement period.
Specifically, the circuit court was presented with evidence from petitioner’s
psychological evaluation that indicated petitioner provided deceptive answers and that, as a
result of her deception, some tests could not be properly interpreted. The psychological
evaluation further determined that services for petitioner would not be beneficial because she
failed to accept responsibility for her actions that necessitated the petition’s filing. In fact, the
evaluation noted that petitioner portrayed herself as a victim in the case, despite her control over
the home in which the abuse occurred. These findings ultimately led the evaluator to conclude
that petitioner’s prognosis for improved parenting was extremely poor. Moreover, another of
petitioner’s service providers testified that she failed to make progress in parenting services over
a span of four months. This same provider also testified to threats petitioner made against her
and that petitioner “believes she is pretty near-perfect,” which corroborated the psychological
evaluator’s opinion as to petitioner’s failure to accept responsibility for her actions. Additionally,
the provider testified to the continued presence of individuals in and around the home while
under the influence.
Essentially, petitioner’s argument on appeal is that the circuit court should have
disregarded the evidence that supported a finding that she failed to successfully complete her
improvement period and, instead, accepted the testimony from her most recent service provider.
We do not agree. 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). In this case, it is clear that
the evidence was conflicting on the issue of whether petitioner successfully completed her
improvement period. However, the circuit court, as the trier of fact, was uniquely situated to
4
make credibility determinations. Moreover, the circuit court was presented with ample evidence
upon which to make its findings.
We have previously held as follows:
“At the conclusion of the improvement period, the court shall review the
performance of the parents in attempting to attain the goals of the improvement
period and shall, in the court’s discretion, determine whether the conditions of the
improvement period have been satisfied and whether sufficient improvement has
been made in the context of all the circumstances of the case to justify the return
of the child[ren].” Syllabus Point 6, In the Interest of Carlita B., 185 W.Va. 613,
408 S.E.2d 365 (1991).
Syl. Pt. 4, In re Faith C., 226 W.Va. 188, 699 S.E.2d 730 (2010). Here, the circuit court did not
abuse it discretion in finding that petitioner failed to successfully remedy the conditions of abuse
and neglect in the home due to the fact that, although she participated in services, she failed to
make any lasting changes. This finding was based on substantial evidence, including evidence
from multiple individuals regarding petitioner’s failure to accept responsibility for her actions.
We have previously held that
[i]n order to remedy the abuse and/or neglect problem, the problem must first be
acknowledged. 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 . .
..
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)). Simply put, petitioner’s failure to accept
responsibility for her actions prevented her from making meaningful changes and remedying the
conditions of abuse and neglect at issue.
Moreover, we have previously held that “[i]n making the final disposition in a child
abuse and neglect proceeding, the level of a parent’s compliance with the terms and conditions of
an improvement period is just one factor to be considered. The controlling standard that governs
any dispositional decision remains the best interests of the child.” Syl. Pt. 4, In re B.H., 233
W.Va. 57, 754 S.E.2d 743 (2014). Here, even assuming that petitioner established full
compliance with the terms and conditions of her improvement period, the fact remains that her
failure to make meaningful change regarding the underlying issues of abuse and neglect
prevented the child’s return to her home. As the circuit court found, returning the child to
petitioner’s home while the conditions of abuse and neglect persisted was not in the child’s best
5
interests. As such, we find no error in the circuit court’s determination that petitioner’s
improvement period was unsuccessful.5
For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 30, 2016, order is hereby affirmed.
Affirmed.
ISSUED: June 9, 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
5
Petitioner further argues that the DHHR erroneously alleged that her failure to address
her personality disorder diagnosis in therapy during her improvement period could serve as a
basis for a finding that she did not successfully complete the same. According to petitioner, this
condition of her improvement period was a suggestion, not a requirement. However, we find
that, to the extent the circuit court relied on this evidence in reaching its determination, the same
does not constitute error. Based on the evidence set forth above, the circuit court had ample
evidence upon which to base its findings, even in the absence of petitioner’s compliance with the
recommendation in her psychological evaluation to submit to therapy for her diagnosis. As such,
we decline to grant petitioner relief in this regard.
6