In re Z.B.-1 and Z.B.-2 ( 2023 )

FILED
February 7, 2023
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re Z.B.-1 and Z.B.-2
No. 22-0485 (Kanawha County 21-JA-270 and 21-JA-571)
MEMORANDUM DECISION
Petitioner Mother J.J. 1 appeals the Circuit Court of Kanawha County’s June 1, 2022,
order terminating her parental rights to Z.B.-1 and Z.B.-2. 2 Upon our review, we determine that
oral argument is unnecessary and that a memorandum decision affirming the circuit court’s order
is appropriate. See W. Va. R. App. P. 21.
In May of 2021, the DHHR filed a petition alleging that petitioner abandoned Z.B.-1 by
moving to Georgia without setting up a guardianship or solidifying arrangements for the child’s
care. During the adjudicatory hearing in August of 2021, the DHHR introduced testimony
concerning petitioner’s abandonment. The court also considered in-camera testimony from Z.B.-
1. Ultimately, the court found that petitioner abandoned Z.B.-1 by relocating and leaving the
child without a legal guardian, any means of support, stable housing, or a plan for meeting his
medical and educational needs. Resultantly, the court adjudicated petitioner as an abusing and
neglecting parent as to Z.B.-1 and ordered the DHHR to investigate his infant sibling, Z.B.-2.
Petitioner submitted to a psychological evaluation, which indicated that her parenting
deficiencies could not be cured given her continued failure to acknowledge abandoning Z.B.-1,
among other issues. Specifically, petitioner adamantly denied abandoning Z.B.-1 despite
admitting that she left the child without any care and made no attempt to locate Z.B.-1 until her
return to West Virginia four months later, when her only attempt to find the child was a single
1
Petitioner appears by counsel Jason S. Lord. The West Virginia Department of Health
and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey and
Assistant Attorney General Andrew T. Waight. Sharon K. Childers appears as the child’s
guardian ad litem.
2
We use initials where necessary to protect the identities of those involved in this case.
See W. Va. R. App. P. 40(e). Additionally, because the children share the same initials, we will
refer to them as Z.B.-1 and Z.B.-2, respectively.
1
social media post describing the child as missing. Further, the evaluator diagnosed petitioner
with cannabis use disorder after petitioner admitted to using cannabis throughout her pregnancy
with Z.B.-2 and while caring for the children.
Thereafter, the DHHR filed two amended petitions that included allegations regarding
Z.B.-2 and additional disclosures from Z.B.-1. Specifically, the DHHR alleged that petitioner
physically abused the children, exposed them to domestic violence within the home, and abused
drugs. In light of these new allegations, the court conducted a second in-camera interview of
Z.B.-1.
The court conducted an adjudicatory hearing on the second amended petition in February
of 2022 at which the DHHR introduced testimony supportive of the new allegations. The court
also considered Z.B.-1’s recent in-camera interview and petitioner’s testimony. Ultimately, the
court found by clear and convincing evidence that petitioner engaged in domestic violence in
front of the children and noted its prior adjudication of petitioner for abandoning Z.B.-1.
Accordingly, the court adjudicated petitioner as an abusing and neglectful parent as to Z.B.-2.
At the dispositional hearing in May of 2022, petitioner moved for an improvement
period. The court denied the motion, finding that petitioner did not qualify for an improvement
period as she failed to provide any evidence indicative of her likelihood to fully participate. In
support of the denial, the court noted that petitioner chose not to participate in these proceedings
for five months—and, even then, only participated after the DHHR took custody of Z.B.-2.
Further, petitioner had not accepted responsibility for her delayed participation or for the
circumstances giving rise to the abuse and neglect. The court found that there was no reasonable
likelihood that petitioner could correct the conditions of abuse and neglect and that termination
was in the children’s best interests. Accordingly, the circuit court terminated petitioner’s parental
rights to Z.B.-1 and Z.B.-2. 3
On appeal from a final order in an abuse and neglect proceeding, this Court reviews the
circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re
Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Petitioner first argues that the circuit court erred
in denying her motion for an improvement period. We find no error. As we have previously
explained,
[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.
3
All parents’ parental rights have been terminated. The permanency plan for the children
is adoption in the current placement.
2
In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted). Even before
this Court, petitioner adamantly denies abandoning Z.B.-1. Also, the record similarly reflects that
she repeatedly denied exposing the children to domestic violence. 4 Consequently, the circuit
court did not err in finding that her lack of meaningful acknowledgement would have rendered
any improvement period ineffective as petitioner was not in a position to identify deficiencies in
her parenting and correct them. Moreover, to obtain an improvement period under West Virginia
Code § 49-4-610, a parent must demonstrate that he or she is likely to fully participate in the
improvement period. Here, the court specifically found that petitioner offered no evidence
indicating that she was likely to fully participate. As such, we find no error in the circuit court’s
decision to deny petitioner’s motion for an improvement period. In re Tonjia M., 212 W. Va.
443, 448, 573 S.E.2d 354, 359 (2002) (confirming that the circuit court has discretion to deny an
improvement period when no improvement is likely).
Petitioner next argues that the circuit court erred in terminating her parental rights. Again,
petitioner stresses that she should have been granted an opportunity to improve and offered
services, yet she fails to address the fact that she squandered her opportunity to participate in
services by willfully refusing to participate in the proceedings entirely for the first five months
they were pending. Critically, the DHHR was under no obligation to provide remedial services
because of petitioner’s abandonment. W. Va. Code § 49-4-604(c)(7)(A) (“[T]he department is
not required to make reasonable efforts to preserve the family if the court determines: . . . The
parent has subjected the child, another child of the parent or any other child residing in the same
household . . . to aggravated circumstances which include, but are not limited to,
abandonment.”). Further, petitioner ignores the fact that her refusal to acknowledge the
circumstances of abuse and neglect is conclusive evidence of her inability to correct the
conditions of abuse and neglect in the near future. Because the circuit court made the findings
required for termination of petitioner’s parental rights upon ample evidence, we find no error.
See W. Va. Code § 49-4-604(c)(6) (permitting a circuit court to terminate parental rights upon
finding that there is no reasonable likelihood that the conditions of abuse and neglect can be
substantially corrected in the near future and when necessary for the child’s welfare).
For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 1, 2022, order is hereby affirmed.
Affirmed.
4
Importantly, petitioner’s assignment of error does not challenge her adjudication as an
abusing and neglecting parent but, instead, focuses solely on denial of an improvement period
and termination. However, petitioner does mention, in passing, that she believes her adjudication
was erroneous, which serves as the basis for her continued denials of any abusive or neglectful
conduct. Under Rule 10(c)(3) of the West Virginia Rules of Appellate Procedure, a brief must
contain “a list of the assignments of error that are presented for review . . . .” Having failed to
include any specific argument regarding her adjudication, any arguments regarding such will not
be addressed on appeal.
3
ISSUED: February 7, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
4