STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: N.C.
April 10, 2017
No. 16-1140 (Kanawha County 16-JA-235) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother J.C., by counsel Matthew A. Victor, appeals the Circuit Court of
Kanawha County’s November 15, 2016, order terminating her parental rights to fifteen-year-old
N.C.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.
L. Evans, filed its response in support of the circuit court’s order. The guardian ad litem, Sharon
K. Childers, filed a response on behalf of the child also in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in terminating her parental rights without an
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 May of 2016, the DHHR received a referral that petitioner hit N.C. in the face with her
purse while intoxicated. N.C. told investigators that he found needles and loose pills in a drawer
inside petitioner’s residence. Investigators also discovered that petitioner’s residence did not
have electricity or running water. During the investigation, petitioner admitted that she had a
history of substance abuse. Based upon this investigation, the DHHR filed a petition for abuse
and neglect based on the above and the allegation that petitioner failed to supply N.C. with
appropriate food or obtain proper medical care.
Thereafter, the DHHR provided petitioner with services aimed at remedying the
conditions of abuse and neglect. These services included, random drug screens, supervised
visitation, and parenting and adult life skills classes. Petitioner also participated in a
psychological evaluation during which she admitted to intravenous drug use.
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).
1
In June of 2016, the circuit court held an adjudicatory hearing during which the circuit
court heard testimony from petitioner and a Child Protective Services (“CPS”) worker.
According to the CPS worker, petitioner’s residence did not have electricity. Furthermore, the
worker testified that petitioner admitted that she used methamphetamine and hit N.C. in the face
with her purse. Petitioner provided corroborating testimony that she used intravenous
methamphetamine while N.C. was in the home, that she hit N.C. in the face, and that her home
did not have electricity or running water. After considering the testimony, the circuit court
adjudicated petitioner as an abusing parent by order entered on August 23, 2016.
Two months later, the circuit court held a dispositional hearing during which it heard
testimony from several witnesses. Petitioner’s parental education specialist testified that
petitioner missed multiple appointments. Furthermore, the specialist testified that petitioner
unequivocally refused parenting and adult life skills classes as part of her treatment plan. Aliana
Swain, a supervised psychologist, testified that petitioner blamed others for her situation and saw
little need to change her behavior. Finally, the circuit court was presented with evidence that
petitioner failed approximately nine drug tests during the underlying proceedings. After
considering the parties arguments, the circuit court terminated petitioner’s parental rights by
order entered on November 15, 2016.2 This appeal followed.
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 an
improvement period. We disagree. Pursuant to West Virginia Code § 49-4-610(3)(A), a circuit
court may grant a parent a post-adjudicatory improvement period when “[t]he [parent] moves in
writing for the improvement period [and] demonstrates, by clear and convincing evidence, that
the [parent] is likely to fully participate in the improvement period.” (Emphasis added). On
appeal, petitioner cites to no written motion for an improvement period, and the record on appeal
2
The child’s father is deceased. According to the guardian, as of the filing of her response
brief, the permanency plan for the child is adoption by a family member.
2
is devoid of any such written motion. 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) (stating that “West Virginia law allows the circuit court discretion in deciding
whether to grant a parent an improvement period”); Syl. Pt. 6, in part, In re Katie S., 198 W.Va.
79, 479 S.E.2d 589 (1996) (holding that “[i]t 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 respondent 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).
Here, it is clear from the record that petitioner failed to demonstrate her ability to fully
participate in an improvement period. The circuit court was presented with evidence that
petitioner failed approximately nine drug tests during the underlying proceedings and
unequivocally refused to participate in parenting and adult life skills classes. Petitioner also
blamed others for her situation and did not see a need to change her behavior. “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)). As such, it is clear that petitioner
failed to establish that she was likely to fully participate in a post-adjudicatory improvement
period.
Similarly, West Virginia Code § 49-4-604(a)(6) provides that circuit courts are directed
to terminate parental rights upon finding that there is “no reasonable likelihood that the
conditions of neglect or abuse can be substantially corrected in the near future” and that
termination is necessary for the children’s welfare. West Virginia Code § 49-4-604(c)(3)
provides that no reasonable likelihood that the conditions of abuse or neglect can be substantially
corrected exists when “[t]he abusing parent . . . ha[s] not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts[.]” As previously mentioned, petitioner
failed nine drug screens and unequivocally refused to participate in parenting and adult life skills
classes to help remedy the conditions of abuse and neglect. Given these facts, we find no error in
the circuit court’s ruling that there was “no reasonable likelihood that the conditions of neglect or
abuse can be substantially corrected in the near future.” As such, we find no error in the circuit
court’s termination of petitioner’s parental rights.
This Court reminds the circuit court of its duty to establish permanency for the child.
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.
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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 the child
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 (2011). 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).
For the foregoing reasons, we hereby affirm the circuit court’s November 15, 2016,
order.
Affirmed.
ISSUED: April 10, 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
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