STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re B.W.-1, B.W.-2, M.M-1, M.M.-2, L.L.-1, and L.L.-2
October 12, 2018
EDYTHE NASH GAISER, CLERK
No. 18-0199 (Roane County 17-JA-30, 31, 32, 33, 34, and 35) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother R.L., by counsel SaraBeth Jett Griesacker, appeals the Circuit Court of
Roane County’s February 2, 2018, order terminating her parental rights to B.W.-1, B.W.-2,
M.M-1, M.M.-2, L.L.-1, and L.L.-2.1 The West Virginia Department of Health and Human
Resources (“DHHR”), by counsel S.L. Evans, filed a response in support of the circuit court’s
order and a supplemental appendix. The guardian ad litem (“guardian”), Michael W. Asbury Jr,
filed a response on behalf of the children in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in denying her an improvement period and
terminating her parental rights.
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 2017, the DHHR filed a petition alleging that petitioner left the children alone
without any adult supervision and without a way to contact her in case of an emergency. The
DHHR further alleged that the home was in a deplorable condition with rotting food, garbage,
and clothing strewn throughout and that the amount of clutter rendered the home uninhabitable.
According to the DHHR, the oldest child, B.W.-1, indicated that he was responsible for walking
to the store to purchase food and for caring for the youngest children. The DHHR alleged that, as
punishment, petitioner required B.W.-1 and B.W.-2 to sit outside past midnight and told the
children that, if the DHHR became involved in their lives, that they would “separate them and it
would be hell.” Despite this, the DHHR alleged that the children indicated they wanted to be
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 some of the children share the same
initials, we refer to those children as B.W.-1, B.W.-2, M.M.-1, M.M.-2, L.L.-1 and L.L.-2.
1
taken from petitioner’s custody. The circuit court held a preliminary hearing and ultimately
found that imminent danger existed to the children while in petitioner’s care.
The circuit court held an adjudicatory hearing in July of 2017 and noted the previous in
camera testimony of B.W.-1 and B.W.-2. Those children’s testimony included that most days
when they returned home from school, petitioner would leave and they would be responsible for
the younger children. The children would have no way to reach petitioner and would not return
until after midnight. Additionally, both B.W.-1 and B.W.-2 testified that their mother would
become angry and violent at times. According to the children, petitioner would strike them hard
enough to leave bruises and then keep them home from school so the bruises would not be
noticed. B.W.-1 testified that petitioner threatened to put a gun to his head on one occasion.
B.W.-2 testified as to a scene where petitioner shoved him to the ground, put his head to the
floor, and told him “you’re lucky if I don’t kill you.” Neither child desired to visit with
petitioner.
A DHHR worker presented photographs of the condition of the home and testified that
the children were filthy and very hungry when removed. In the worker’s opinion, the home’s
condition rendered it unsafe for children. Petitioner also testified and identified the photographs
of her home. Petitioner agreed that the photographs accurately depicted her home on the day of
the removal, but explained that the condition of her home that day was unusual. Petitioner denied
that she left the children for significant periods of time without adult supervision or that the
children had to walk to the store to buy food. According to petitioner, the case was a “set up” and
the children had been brainwashed by their grandmother. Petitioner’s adult son, B.W.-3, testified
that he typically provided care and supervision for the younger children while petitioner was
gone. However, B.W.-3 admitted that he was staying at a friend’s house for a few days before
the removal. Ultimately, the circuit court adjudicated petitioner as an abusing parent and the
children as abused and neglected children.
In January of 2018, the DHHR moved to terminate petitioner’s parental rights on the
basis that she tested positive for controlled substances, missed multiple drug screens, and had not
visited the children since November of 2017. That same month, the circuit court held a
dispositional hearing and heard testimony from a DHHR worker, petitioner, and the foster
mother of one of the children. Ultimately, the circuit court found that petitioner was ordered to
drug screen in October of 2017 and her initial screen was positive for methamphetamine and
amphetamine. Since that time, petitioner tested positive five times, tested negative five times,
and failed to appear for her drug screen five times. As a result of her non-compliance, petitioner
was no longer permitted to drug screen at the facility. Additionally, the circuit court found that
petitioner initially participated in parenting and adult life skills classes, but lost contact with the
provider which led to a suspension of these classes due to non-compliance.2 The circuit court
found that, due to petitioner’s non-compliance with these services, the DHHR would be unable
2
On appeal, petitioner asserts that she received parenting classes from this provider until
the DHHR filed the notice to terminate her parental rights. However, petitioner cites to nothing
in the record to support this assertion.
2
to prepare a reasonable family case plan and that petitioner’s failure to participate constituted a
refusal and unwillingness to improve her parenting. Most importantly, the circuit court found
that petitioner did not acknowledge the faults of her parenting that caused the children to be
placed in DHHR custody. Based on those findings, the circuit court concluded that there was no
reasonable likelihood that the conditions of abuse or neglect could be substantially corrected and
that terminating petitioner’s parental rights was in the best interest of the children. Accordingly,
the circuit court denied petitioner’s motion for an improvement period and terminated her
parental rights in its February 2, 2018, order. Petitioner now appeals that order.3
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.
On appeal, petitioner argues that the circuit court erred in denying her motion for an
improvement period. Petitioner asserts she made improvements to her home and remedied some
of the conditions prior to her dispositional hearing and that she progressed without the DHHR’s
assistance. Further, petitioner argues that the DHHR and circuit court erroneously relied on her
positive drug screens even though she was never adjudicated for substance abuse. We find no
merit to petitioner’s argument.
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 deciding whether to grant a parent an improvement
3
The biological fathers of M.M.-1, M.M.-2, and L.L-1 also had their respective parental
rights terminated as a result of these proceedings. The father of L.L.-2 relinquished his parental
rights. The biological father of B.W.-1 and B.W.-2 successfully completed an improvement
period and the petition against him was dismissed. According to the parties, B.W.-1 and B.W.-2
will remain in their father’s custody, while M.M-1, M.M.-2, L.L.-1, and L.L.-2 are all in separate
foster placements with permanency plans of adoption in their current placements.
3
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 grant an improvement period within the applicable statutory
requirements.”). We have also held that a parent’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 participate in the improvement period . . . .’” In re Charity H.,
215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004). Further, this Court has held
[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
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 In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)).
The circuit court did not err in denying petitioner’s motion for a post-adjudicatory
improvement period because she never acknowledged the issues that led to the removal of the
children. Petitioner minimized and denied the physical and mental abuse that she inflicted on
B.W.-1 and B.W.-2. Although petitioner indicated that she fixed issues with the home, she did
not mention any change in her parenting as a result of B.W.-1 and B.W.-2’s very troubling
disclosures. Additionally, the circuit court found that petitioner failed to acknowledge her poor
decision making in leaving the children alone and without any means to contact her in case of an
emergency. Further, petitioner tested positive for controlled substances, which the circuit court
found were related to the issues alleged in the petition. Petitioner argues that she admitted her
substance abuse problem and requested services from the DHHR. However, petitioner presented
no evidence that she took any action herself to remedy her substance abuse, even though she
knew it was an issue. Finally, to be granted an improvement period, petitioner must show that
she is likely to fully participate in that improvement period. The circuit court found that
petitioner’s services were terminated for non-compliance, which demonstrates petitioner would
be unlikely to comply with further services. Accordingly, we find that the circuit court did not err
in denying petitioner’s motion for an improvement period.
The same evidence supports the circuit court’s termination of petitioner’s parental rights.
West Virginia Code § 49-4-604(b)(6) provides that, upon findings that “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 [children],” the circuit court may terminate the
parental rights of an abusing parent. Additionally, West Virginia Code § 49-4-604(c)(3) provides
that no reasonable likelihood that the conditions of neglect or abuse can be substantially
corrected occurs when “[t]he abusing parent . . . [has] not responded to or followed through with
a reasonable family case plan or other rehabilitative efforts. . . .” The circuit court correctly
found that there was no reasonable likelihood that the conditions of neglect or abuse could be
corrected in the near future because petitioner made no progress in solving the problems or abuse
or neglect. The record shows that petitioner was non-compliant in services and continued to
abuse substances even though she knew it was a serious issue. Further, petitioner did not
4
acknowledge the serious consequences that her previous actions had on her children and
minimized those consequences. On appeal, petitioner acknowledges 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). Petitioner argues that it is in
the best interest of the children to have a meaningful relationship with their biological parent.
However, the circuit court found that it was necessary for the welfare of the children to terminate
petitioner’s parental rights based on her failure to acknowledge issues in her parenting and her
failure to remedy those issues. We find no error with the circuit court’s decision and,
accordingly, find petitioner is entitled to no relief.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 2, 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 sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Allen H. Loughry II suspended and therefore not participating.
5