STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re E.D. and M.D. FILED
December 10, 2020
No. 20-0511 (Cabell County 19-JA-132 and 19-JA-133) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother J.B., by counsel Eric B. Anderson, appeals the Circuit Court of Cabell
County’s May 28, 2020, order terminating her parental rights to E.D. and M.D. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N. Felton-Ernest,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”),
Raymond A. Nolan, filed 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 denying her a post-adjudicatory
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.
Prior to the initiation of the instant proceedings, petitioner was the subject of child abuse
and neglect proceedings with regard to seven older children based upon her involvement with men
who physically and sexually abused her children. Petitioner was granted a post-adjudicatory
improvement period but eventually voluntarily relinquished her parental rights to those children at
disposition in January of 2016.
Given the extreme circumstances surrounding petitioner’s prior abuse and neglect
proceeding, the DHHR filed the instant child abuse and neglect petition against petitioner in June
of 2019, following the birth of child M.D. According to the DHHR, in light of petitioner’s past
history with violent men, it conducted a background check of the father which revealed his
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).
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conviction of death of a child by a guardian in 2002. There was evidence that that child had been
beaten in the head or shaken. The father was sentenced to forty years in prison and was later
released on parole in 2016. Neither petitioner nor the father disclosed his conviction to the
caseworker. Child Protective Services (“CPS”) workers also spoke with a service provider in the
home who stated she did not have specific concerns about abuse or neglect but noted that E.D. was
developmentally delayed, still drinking from a bottle, failing to walk properly, and behind on
verbal skills for a child of her age. Later that month, the DHHR filed an amended petition based
upon the facts underlying petitioner’s prior abuse and neglect proceeding and the father’s past
conviction. Petitioner waived her preliminary hearing and moved the circuit court for supervised
visits, which it granted.
In July of 2019, the circuit court held an adjudicatory hearing wherein petitioner and the
father stipulated to the allegations contained in the petition and the court adjudicated them as
neglectful parents. The DHHR opposed granting either parent an improvement period due to the
extreme circumstances and requested that the matter be set for disposition. The guardian requested
additional time to review the father’s conviction and petitioner’s prior abuse and neglect
proceedings before making a recommendation. The circuit court deferred decisions on granting
any improvement periods and required that each parent submit to a parental fitness evaluation.
Petitioner participated in a parental fitness evaluation in September of 2019. The report
indicated that petitioner was “reluctant to admit to minor fault,” was overly defensive, and had
poor motivation for treatment. The report further indicated that even if petitioner had no prior
knowledge of the father’s past criminal history, she “demonstrate[d] impaired judgment by
remaining involved . . . with him [after she learned of the conviction].” The report noted that
petitioner “appeared to minimize her history of domestic violence” when interacting with CPS
caseworkers and that she did not comply with an improvement period granted in prior abuse and
neglect proceedings. The psychologist concluded that petitioner’s prognosis for minimally
adequate parenting was poor due to her history of minimizing domestic violence, persistent
involvement in relationships that create risk of injury to the children, continued involvement in her
current relationship, impaired judgment, and defensiveness.
After multiple continuances, the circuit court held a final dispositional hearing in February
of 2020. At the hearing, the DHHR presented its court summary, which recommended the
termination of the parents’ parental rights based on the circumstances underlying the prior
proceeding, the father’s conviction, and petitioner’s parental fitness evaluation. First, petitioner
testified and confirmed that she knew the father had a criminal history but said she did not know
the details. Petitioner also testified that they had broken up four months prior and that she filed a
domestic violence petition against him one month before the hearing due to threats of physical
violence. She testified the domestic violence was recent and that the father had slapped her three
months ago. Petitioner further testified she was no longer financially supporting him and that she
was employed as a full-time manager at a local fast food restaurant. Petitioner acknowledged her
prior relinquishment of parental rights to seven other children and stated at that time she was not
in the right state of mind to care for those children due to abuse from a past husband. She testified
that she was in a better mental state now and had raised E.D. for fifteen months without issue.
Finally, petitioner reaffirmed that she did not know of petitioner’s violent history until CPS
workers brought it to her attention; she also admitted that she had never had therapy or treatment
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for her issues with domestic violence. Next, a CPS worker testified that petitioner had a history of
cohabitating with physically abusive partners who threatened the children. The caseworker
acknowledged that the parents’ visits with the children were going well until petitioner filed a
domestic violence petition against the father. However, as a result of petitioner’s failure to correct
the circumstances since the prior proceedings, the DHHR was seeking termination of her parental
rights. Finally, the guardian spoke in support of petitioner receiving an improvement period.
After hearing the evidence, the circuit court found that petitioner had prior opportunities to
correct her circumstances and that her prior history was a “strong indicator” to consider. The circuit
court also found that petitioner continued to associate with inappropriate partners, failed to seek
domestic violence treatment, and, by her own admission, did not meaningfully participate in her
improvement period from her prior abuse and neglect proceeding. Accordingly, the circuit court
denied petitioner’s motion for an improvement period and terminated her parental rights upon
finding that there was no reasonable likelihood that petitioner could correct the conditions of abuse
or neglect in the near future and that termination was necessary for the children’s welfare.
Petitioner appeals the May 28, 2020, dispositional order terminating her parental rights. 2
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 a post-adjudicatory
improvement period. Petitioner contends that she met her burden of proof in demonstrating that
she was likely to fully participate in an improvement period. According to petitioner, she divorced
one of the children’s fathers from the prior abuse and neglect proceeding, was in her relationship
with the father of M.D. and E.D. for two years without incident of domestic violence, later filed a
domestic violence petition, moved out of their joint home, and found employment in an
undisclosed location in order to protect herself. Petitioner also argues that prior to the child’s
removal, she had successfully cared for E.D. for fifteen months and continued to have successful
2
The father’s parental rights were also terminated below, and he has not filed an appeal.
The permanency plan for the children is adoption by a foster family.
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visits during the abuse and neglect proceedings. Based upon her initiative to take care of E.D. on
her own accord, petitioner contends that she demonstrated a substantial change in circumstances
since her prior abuse and neglect case and that she should have been granted an improvement
period. We disagree.
This Court has held that “a parent charged with abuse and/or neglect is not unconditionally
entitled to an improvement period.” In re Emily, 208 W. Va. 325, 336, 540 S.E.2d 542, 553 (2000).
West Virginia Code § 49-4-610(2)(B) provides that the circuit court may grant a parent a post-
adjudicatory improvement period when the parent “demonstrates, by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period.” 3 “This Court
has explained that ‘an improvement period in the context of abuse and neglect proceedings is
viewed as an opportunity for the . . . parent to modify his/her behavior so as to correct the
conditions of abuse and/or neglect with which he/she has been charged.’” In re Kaitlyn P., 225 W.
Va. 123, 126, 690 S.E.2d 131, 134 (2010) (citation omitted). However, the circuit court has
discretion to deny an improvement period when no improvement is likely. See In re Tonjia M.,
212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002).
Contrary to petitioner’s argument, we find that she did not demonstrate that she was likely
to fully participate in an improvement period. While petitioner points out that she eventually filed
a domestic violence petition against the father, she continued to associate with the father even after
CPS informed her of his prior conviction for death of a child by a guardian. Further, the circuit
court found that the circumstances underlying petitioner’s prior abuse and neglect proceeding were
still present in the current proceedings. Indeed, the instant case was initiated just three years after
the prior abuse and neglect proceedings ended, during which time petitioner failed to make any
substantial changes in her behavior despite the provision of numerous services through her
improvement period in the prior case. Indeed, by petitioner’s own admission, she failed to comply
with the terms and conditions of the prior improvement period, ultimately prompting her decision
to relinquish her parental rights. Finally, petitioner’s prognosis for minimally adequate parenting
was rated as “poor” in her parental fitness evaluation. Given this evidence, we find no error in the
circuit court’s decision to deny petitioner a post-adjudicatory improvement period.
Petitioner next argues that the circuit court erred in terminating her parental rights.
Petitioner claims that the circuit court’s finding that there was no reasonable likelihood that she
could correct the conditions of abuse or neglect in the near future was erroneous because she had
properly parented E.D. for fifteen continuous months without evidence of abuse and neglect.
Petitioner contends that, given this evidence, there was a reasonable likelihood that she could
substantially correct the conditions of abuse and neglect. Petitioner also argues that the circuit
court erred in refusing to impose a less-restrictive alternative to the termination of her parental
rights. We disagree.
West Virginia Code § 49-4-604(c)(6) provides that circuit courts are to terminate parental
rights upon finding that there is “no reasonable likelihood that the conditions of neglect or abuse
3
Notably, West Virginia Code § 49-4-610(2)(A) requires a parent to file “a written motion
requesting the improvement period.” According to the record, petitioner failed to file such a
motion.
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can be substantially corrected in the near future” and that termination is necessary for the children’s
welfare. West Virginia Code § 49-4-604(d) provides that a circuit court may find that there is no
reasonable likelihood that the conditions of abuse and neglect can be substantially corrected when
the abusing parent has “demonstrated an inadequate capacity to solve the problems of abuse or
neglect on their own or with help.”
The record establishes that petitioner demonstrated an inadequate capacity to solve the
problems of abuse or neglect either on her own or with help. As noted above, petitioner was granted
a post-adjudicatory improvement period in her prior case and was provided with services aimed at
correcting her issues with allowing inappropriate partners around the children. Petitioner was
permitted to relinquish her parental rights at disposition in that case and thereafter continued
entering into inappropriate relationships such that it endangered the children at issue in these
proceedings. While petitioner eventually filed for a domestic violence protection order and ceased
her relationship with the father, she continued to remain with him for several months even after
learning of his prior conviction for death of a child. Moreover, petitioner’s parental fitness
evaluation noted that her prognosis for obtaining minimally adequate parenting was poor and she
was overly defensive and reluctant to admit to even minor fault. While petitioner points out that
she appropriately cared for E.D. for over a year prior to the proceedings, the record demonstrates
that the child was developmentally delayed, and petitioner allowed the father to care for the
children unsupervised while she worked to financially support him and the children. Further, by
continuing to engage with inappropriate partners, petitioner has demonstrated that the conditions
from the prior abuse and neglect proceeding continue unabated. Based on this evidence, we cannot
find that the circuit court erred in finding that there was no reasonable likelihood that petitioner
could correct the conditions of abuse or neglect in the near future, as petitioner demonstrated an
inadequate capacity to solve her issues of impaired judgment on her own or with help.
While petitioner claims that she should have been granted a less-restrictive disposition to
the termination of her parental rights, we have previously held that
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [West Virginia
Code § 49-4-604] may be employed without the use of intervening less restrictive
alternatives when it is found that there is no reasonable likelihood under [West
Virginia Code § 49-4-604(d)] that conditions of neglect or abuse can be
substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d
114 (1980).
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Based on the foregoing, we find
no error in the circuit court’s termination of petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its May
28, 2020, order is hereby affirmed.
Affirmed.
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ISSUED: December 10, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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