In Re: B.B., J.B., H.B. and L.M. ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
October 1, 2013
In Re: B.B., J.B., H.B., and L.M. RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 13-0456 (Calhoun County 12-JA-72 through 12-JA-75)
MEMORANDUM DECISION
Petitioner Mother filed this appeal, by counsel Justin White, from the Circuit Court of
Calhoun County, which terminated her parental rights to the subject children by order entered on
April 4, 2013. The guardian ad litem for the children, Tony Morgan, has filed a response
supporting the circuit court’s order. The Department of Health and Human Resources
(“DHHR”), by its attorney Lee A. Niezgoda, has also filed a response in support of the circuit
court’s order. Petitioner contends that the circuit court erroneously denied her motion for a 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.
In December of 2012, the DHHR filed its petition initiating this abuse and neglect case.
The petition alleged that the children’s parents abused and neglected them through excessive
punishment, exposure to domestic violence, and exposure to the use of illicit substances. In
January of 2013, the DHHR filed an amended petition, adding allegations that the oldest child,
B.B., had been sexually abused multiple times by petitioner’s boyfriend, C.M., and that
petitioner knew of at least one of these incidents, but failed to protect B.B. During the course of
these proceedings, the circuit court held an in-camera hearing with B.B. and subsequently
adjudicated both parents as abusive and neglectful to the children. No improvement periods were
granted in this case. Following a dispositional hearing, the circuit court entered an order
terminating both parents’ parental rights, from which Petitioner Mother now appeals.
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
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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’s sole argument is that the circuit court erred in denying her motion
for an improvement period. Petitioner asserts that the circuit court improperly relied on her
failure to admit to the abusive and neglectful conditions at home. Petitioner argues that she was
unable to fully admit and acknowledge these conditions due to her antisocial personality
disorder. Petitioner argues that the circuit court denied her the opportunity to improve her
parenting skills in spite of her disorder when it denied her an improvement period. Petitioner
further asserts that there was no evidence to support the finding that her disorder would indicate
any unwillingness to cooperate in the development of a family case plan.
Upon our review of the record, we find no error or abuse of discretion in the circuit
court’s decision to deny petitioner’s motion for an improvement period. Pursuant to West
Virginia Code § 49-6-12, a parent moving for an improvement period bears the burden of
proving by clear and convincing evidence that he or she will substantially comply with an
improvement period; consequently, the circuit court has the discretion to deny an improvement
period if it finds that this burden has not been met. Petitioner fails to meet this burden of proof
and instead merely argues that there was no evidence showing that she would not substantially
comply with the terms of an improvement period.
Further, West Virginia Code § 49-6-5(a)(7)(A) provides that the DHHR is not required to
make reasonable efforts to preserve the family if any of the children in the home have been
subjected to torture or sexual abuse. We also bear in mind the following: “‘Although parents
have substantial rights that must be protected, the primary goal in cases involving abuse and
neglect, as in all family law matters, must be the health and welfare of the children.’ Syl. Pt. 3, In
re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., -- W.Va. --, 743
S.E.2d 352 (2013). The record reflects that the circuit court adjudicated both parents as abusive
and neglectful after finding that the children were exposed to emotional abuse and sexual abuse,
both of which are circumstances contemplated by West Virginia Code § 49-6-5(a)(7)(A). The
circuit court denied petitioner an improvement period not only because she failed to admit to the
abusive conditions at home, but also because she failed to show how she could improve those
circumstances. In light of the circumstances, we find that the circuit court’s decision promotes
the children’s best interests and is absent of error.
For the foregoing reasons, we affirm.
Affirmed.
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ISSUED: October 1, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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