STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re E.E., C.E., A.E.-1, A.E.-2, N.E., and D.E. April 9, 2018
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 17-0973 (Hardy County 16-JA-29, 30, 31, 32, 33 and 34) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother A.E.-3, by counsel Lauren M. Wilson, appeals the Circuit Court of
Hardy County’s September 28, 2017, order terminating her parental rights to E.E., C.E., A.E.-1,
A.E.-2, N.E., and D.E.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”), Marla Zelene Harmon, filed a response on behalf of the children
in support of the circuit court’s order. On appeal, petitioner argues that the circuit court abused
its discretion in terminating her improvement period and in terminating her parental rights
without imposing a less-restrictive alternative.
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 2016, law enforcement came to petitioner’s home to take fifteen-year-old D.E.
into custody pursuant to a juvenile petition and found the home in deplorable condition. In
August of 2016, the DHHR offered adult life skills and parenting classes to petitioner and her
husband. However, the DHHR found that petitioner required further intervention to remedy the
conditions in the home. In December of 2016, the DHHR filed a petition alleging that petitioner
and her husband failed to provide their children with adequate and sanitary housing, appropriate
medical care, and ensure their children went to school. The petition further alleged that petitioner
and her husband had participated in a previous abuse and neglect case in December of 2013,
during which they received an improvement period and extensive services that dealt with the
same issues. The circuit court did not order removal of the children from petitioner’s custody.
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 petitioner and two of the children
share the same initials, we refer to the petitioner as A.E.-3 and the children as A.E.-1 and A.E.-2
throughout this memorandum decision.
1
At the adjudicatory hearing, petitioner stipulated to neglect and moved for a post-
adjudicatory improvement period. Petitioner’s stipulation included: failure to maintain a suitable
residence, including lice and roach infestations; educational neglect, for excessive absences from
school; and medical neglect, including failure to address dental issues and ensure prompt dental
care. The circuit court then granted petitioner’s motion for a post-adjudicatory improvement
period. The children remained with petitioner until March of 2017, when a motion for removal of
the children and resulting order were filed. The motion alleged that the children’s conditions
continued to worsen, including further absences and a severe lice infestation.
In April of 2017, the circuit court held an evidentiary hearing on the DHHR’s motion to
revoke petitioner’s improvement period. The children’s nurse practitioner testified regarding the
recurring lice infestation, which spanned from 2014 until as recently as March of 2017. The
nurse testified that the only time all the children were free of lice was in April of 2017, after they
were removed from petitioner’s custody. Also, the nurse testified that an appointment was
scheduled to have A.E.-1’s migraines assessed, but petitioner did not take her to that
appointment. A DHHR worker testified that the lice issue was ongoing and petitioner’s home
was roach infested and unsanitary. The DHHR worker testified that the lice issue contributed to
the truancy issue because the children needed to be clear of lice to attend school. The DHHR
worked also testified that petitioner had yet to complete specific conditions of the case plan, such
as weekly doctor visits for the children or acquisition of her driver’s license. Petitioner was also
resistant to accepting recommendations from the multidisciplinary team (“MDT”) and refused to
open a bank account to deposit petitioner and her husband’s $9,500 tax return or track family
spending. The children’s foster parent testified she cleared the children of lice, and about a video
she took of the lice on E.E.’s scalp before treatment. Finally, petitioner testified that she
attempted to keep the house clean and made repairs to structural issues of the home. At the
conclusion of the hearing, the circuit court found that petitioner demonstrated a pattern of failing
to improve and did not illustrate “a likelihood to fully participate in the improvement period.”
However, the circuit court deferred ruling on the motion to terminate the improvement period
and urged petitioner to make a vast improvement in her participation.
In May of 2017, the DHHR renewed its motion to revoke petitioner’s improvement
period and the circuit court held two evidentiary hearings. In support, the visitation supervisor
testified that the children displayed little affection towards petitioner during visits. A DHHR
worker testified that petitioner cooperated with classes and changed residences as required by the
case plan; however, the worker saw cockroaches during the last two classes in the new home.
This DHHR worker also testified about petitioner’s tax return funds, which were already nearly
exhausted. Petitioner prepared a “guesstimate” accounting of those funds, which included loans
to multiple friends and little spent on her housing issues. A second DHHR worker testified that
the new home had some trash accumulated on the two porches, smelled strongly of cat urine, and
cat litter was thrown out next to the front porch. Ultimately, the circuit court found that petitioner
was unable to rectify the conditions that led to the filing of this petition and the previous petition,
and that, even with assistance, petitioner continued to experience issues with maintaining a
hygienic environment. The circuit court concluded that there was no reasonable likelihood that
the conditions of neglect could be remedied. Thereafter, petitioner’s improvement period was
revoked. The circuit court granted petitioner continued visitation with the children.
2
The circuit court held a dispositional hearing and the DHHR moved for the termination of
petitioner’s parental rights in July of 2017. A DHHR worker testified that the issues of this
petition were essentially the same as petitioner’s previous case in December of 2013, and,
despite intervention, petitioner made little overall improvement. Petitioner testified that she was
now employed and her situation was improved after the change of residence. Ultimately, the
circuit court terminated petitioner’s parental rights and incorporated its previous findings as a
basis for the termination in its September 28, 2017 order.2 Petitioner now appeals that order.
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). Upon our review, this Court
finds no error in the proceedings below.
Petitioner first argues that the circuit court abused its discretion by terminating her
improvement period. We disagree. West Virginia Code § 49-4-610(7) provides that “[u]pon the
motion by any party, the court shall terminate any improvement period granted pursuant to this
section when the court finds that respondent has failed to fully participate in the terms of the
improvement period[.]” This Court has held that “[i]t is within the court’s discretion to terminate
the improvement period before the twelve-month time frame has expired if the court is not
satisfied that the defendant is making the necessary progress.” Syl. Pt. 6, In re Katie S., 198
W.Va. 79, 479 S.E.2d 589 (1996).
2
The parental rights of the father of A.E.-1, A.E.-2, C.E., and E.E were terminated below.
The father of D.E. and N.E. cannot care for the children due to his incarceration, however, his
parental rights remain intact. According to respondents, the children are currently placed in a
kinship home with a permanency plan of adoption or guardianship in that home. Additionally,
respondents assert that an MDT will be held to address the parental rights of D.E. and N.E.’s
father.
3
The circuit court correctly found that petitioner was not making the necessary progress in
her improvement period. Petitioner admitted that she failed to maintain a sanitary residence,
permitted the children to be excessively absent from school, and neglected to provide prompt and
consistent medical care. The entire family was infested with lice; the children continued to miss
school without excuse; and petitioner was not taking the children regularly for medical checkups
or recommended specialists as the case plan required. Moreover, almost immediately after the
children were removed from petitioner’s care, the children were rid of their lice infestation.
Petitioner changed housing as required by her case plan; however, that new housing acquired an
odor and roaches after petitioner lived there for only a few weeks. Petitioner was afforded
additional time to improve and received adult life skills and parenting classes, two major
components of her case plan, before the petition was filed. Yet, those classes did not improve
petitioner’s parenting. The circuit court is granted discretion in terminating an improvement
period, and we find that the circuit court did not abuse that discretion in terminating petitioner’s
improvement period.
Second, petitioner argues that the circuit court abused its discretion by terminating her
parental rights without imposing a less-restrictive alternative. Petitioner asserts that she was a
victim of poverty and her previously successful improvement period proves that she can be a
non-abusing parent. We disagree.
West Virginia Code § 49-4-604(b)(6) provides that the circuit court may terminate
parental rights when “there is no reasonable likelihood that the conditions of neglect or abuse can
be substantially corrected in the near future and, when necessary for the welfare of the child.”
Further, West Virginia Code § 49-4-604(c)(3) provides that there is no reasonable likelihood that
the conditions of neglect or abuse can be substantially corrected when the parent has “not
responded to or followed through with a reasonable family case plan or other rehabilitative
efforts . . . designed to reduce or prevent the abuse or neglect of the child, as evidence by the
continuation or insubstantial diminution of conditions which threatened the health welfare or life
of the child.” Upon these findings, the circuit court may terminate a parent’s parental rights
without the use of less-restrictive alternatives. Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712
S.E.2d 55 (2011).
The circuit court correctly found that there was no reasonable likelihood that the
conditions of neglect could be substantially corrected in the near future and did not abuse its
discretion in terminating petitioner’s parental rights. Petitioner’s consistent need for DHHR
intervention and support is evidence that petitioner could not adequately care for her children.
Since her first improvement period, petitioner continually faced the same issues of lice,
unsanitary housing, and excessive absences from school. Again, once the children were removed
from petitioner’s care, all of these issues resolved for the children. After years of education and
opportunity, petitioner could not provide the basic needs for the children. Further, petitioner’s
assertion that she was a victim of poverty is not compelling. Petitioner received a substantial tax
refund and, by her own account, applied very little of it to remedy the circumstances that caused
the neglect.
The circuit court correctly found that termination was necessary for the welfare of the
children and was in the children’s best interests. The controlling standard that governs any
4
dispositional decision is the best interests of the children. Syl. Pt. 4, In re B.H., 233 W.Va. 57,
754 S.E.2d 743 (2014). Petitioner consistently failed to meet the children’s needs in terms of
medical treatment, education, and appropriate housing. On appeal, petitioner argues that
returning the children under the supervision of the DHHR or with other community support
would have been preferable to termination of her parental rights. However, both of those
situations are the exact same circumstances as the first three months of petitioner’s improvement
period. During that time, petitioner failed to provide for the children’s needs and removal was
necessary for the children’s welfare. Accordingly, we find that the circuit court did not abuse its
discretion in terminating petitioner’s parental rights without imposing a less-restrictive
alternative.
Lastly, because the proceedings in circuit court regarding the father of D.E. and N.E. are
still ongoing, this Court reminds the circuit court of its duty to establish permanency for the
children. 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.
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 children
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. 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).
5
For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 28, 2017, order is hereby affirmed.
Affirmed.
ISSUED: April 9, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
6