stating that “[a]n elementary principle of statutory construction is that the word ‘may’ is inherently permissive in nature and connotes discretion.” (citations omitted)
How later courts described this case
- stating that “[a]n elementary principle of statutory construction is that the word ‘may’ is inherently permissive in nature and connotes discretion.” (citations omitted)
- stating that “[a] reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely situated to make such determinations and this Court is not in a position to, and will not, second guess such determinations.”
Written by the judges who cited it.
The opinion
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re: S.M. & K.M.,
FILED
November 23, 2015
RORY L. PERRY II, CLERK
No. 15-0687 (Mercer County 14-JA-120-WS & 14-JA-121-WS) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother T.B., by counsel David B. Kelley, appeals the Circuit Court of Mercer
County’s June 18, 2015, order terminating her parental, custodial, and guardianship rights to
eight-year-old S.M. and five-year-old K.M. 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 (“guardian”), Malorie N. Estep-Morgan, 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 terminating her parental, custodial, and guardian rights to the children.1
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 August of 2014, the DHHR filed an abuse and neglect petition alleging that petitioner
failed to provide for and protect the children and that she abused controlled substances. The
DHHR stated in the petition that S.M. attended school on May 8, 2014, with a bloody lip because
her grandmother hit her with a backscratcher and generally appeared “filthy” at school with
noticeable body odor. Due to those concerns, the DHHR arranged a protection plan with
petitioner to aid her parenting and to allow the DHHR to monitor the children. Under that
protection plan, petitioner agreed (1) to attend the requisite classes necessary for her to qualify
for certain governmental assistance, (2) to attend substance abuse treatment, and (3) not to permit
1
We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
Further, in her brief to this Court, petitioner initially asserts two assignments of error: (1)
that the circuit court erred in terminating her rights with allowing her to extend and complete her
post-adjudicatory improvement period and (2) in terminating her parental rights. However, in the
body of her brief, she argues these issues as one error by the circuit court. As these issues are
substantially related, we address them together in this memorandum decision.
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the grandmother to care for the children. Thereafter, according to the petition, petitioner was
evicted from her apartment and tested positive for cocaine. She also failed to complete the
process for admission into a substance abuse treatment program. The DHHR claimed that, during
her protection plan, in August of 2014, petitioner entered into an inpatient facility for evaluation
related to Social Security and left her children with her brother. In mid-August of 2014, S.M. got
in trouble at school, and the children disclosed their fear to return to the their uncle’s home
because they would get a “whoopin[’],” so the children went to stay with their grandmother. In
the petition, the DHHR also noted that petitioner was a respondent in two prior abuse and neglect
proceedings in 2007 and 2008 with respect to S.M. when petitioner herself was still a juvenile,
but both petitions were ultimately dismissed and S.M. returned to petitioner.
In September of 2014, the circuit court held an adjudicatory hearing. Petitioner stipulated
to abuse and neglect of the children as charged in the petition. Based on her stipulation, the
circuit court adjudicated petitioner as an abusing parent, but it further granted her motion for a
post-adjudicatory improvement period. At a review hearing in December of 2014, the circuit
court found that petitioner was homeless and failed to maintain consistent visits with the
children. However, the circuit court nevertheless granted petitioner an extension of her
improvement period.
In March of 2015, the circuit court held another review hearing. At the time of that
hearing, petitioner was incarcerated in the Commonwealth of Virginia. Due to petitioner’s failure
to comply with the family case plan, the circuit court terminated her improvement period and set
the matter for disposition. On May 22, 2015, the circuit court held a dispositional hearing. The
circuit court found that petitioner failed to comply with services and failed to seek treatment for
her addiction to controlled substances. By order entered on June 18, 2015, the circuit court
terminated petitioner’s “parental, custodial, and guardianship rights” to the children. 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).
2
On appeal, petitioner assigns error to the circuit court’s order terminating her parental
rights without extending her post-adjudicatory improvement period. With regard to the extension
of an improvement period, West Virginia Code § 49-4-610(6)2 provides as follows:
Extension of improvement period. – A court may extend any improvement period
granted pursuant to subdivision (2) or (3) of this section for a period not to exceed
three months when the court finds that the respondent has substantially complied
with the terms of the improvement period; that the continuation of the
improvement period will not substantially impair the ability of the department to
permanently place the child; and that the extension is otherwise consistent with
the best interest of the child.
At the outset, we note that the decision to extend or terminate an improvement period is left to
the sound discretion of the circuit court. West Virginia Code § 49-4-610(6) employs the term
“may,” which we have explained to be permissive language. See Gebr. Eickhoff Maschinenfabrik
Und Eisengieberei mbH v. Starcher, 174 W.Va. 618, 626 n.12, 328 S.E.2d 492, 500 n.12 (1985)
(stating that “[a]n elementary principle of statutory construction is that the word ‘may’ is
inherently permissive in nature and connotes discretion.” (citations omitted)). With regard to
termination of an improvement period, we have held that “[i]t is within the court’s discretion to
grant an improvement period within the applicable statutory requirements; it is also within the
court’s discretion to terminate the improvement period . . . if the court is not satisfied that the
[subject parent] is making the necessary progress.” Syl. Pt. 2, in part, In re Lacey P., 189 W.Va.
580, 433 S.E.2d 518 (1993). Further, to the extent this issue requires the weighing of evidence
and rendering of findings of fact, our case law is clear that “in the context of abuse and neglect
proceedings, the circuit court is the entity charged with weighing the credibility of witnesses and
rendering findings of fact.” In re Emily, 208 W.Va. 325, 339, 540 S.E.2d 542, 556 (2000) (citing
Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478, 525 S.E.2d 669 (1999)); see also Michael
D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997) (stating that “[a]
reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely
situated to make such determinations and this Court is not in a position to, and will not, second
guess such determinations.”).
In this case, the record is clear that petitioner failed to comply with services throughout
the underlying proceedings, failed to take steps to correct her controlled substance addiction, and
was incarcerated during the pendency of the proceedings. Petitioner admits in her argument to
this Court that she “did not make much progress during her improvement period” and was
incarcerated for a portion of the proceedings below. Despite petitioner’s argument that she could
substantially correct the conditions that led to the abuse and neglect if granted more time, we
find no abuse of discretion in the circuit court’s denial of an extension of her improvement
period based on the evidence presented.
2
Because the dispositional hearing in this matter occurred on May 22, 2015, which was
two days after the new version of West Virginia Code §§ 49-1-101 through 49-7-304 became
effective, the Court will apply the revised versions of those statutes in its discussion of this issue.
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Further, had petitioner complied with her improvement period more substantially, her
compliance would be just one factor for the circuit court to consider in making the ultimate
disposition. We have held 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. and S.S., 233 W.Va. 57,
754 S.E.2d 743 (2014).
The law in this State provides, pursuant to West Virginia Code § 49-4-604(b)(6), that
circuit courts are directed to terminate parental rights when they find that there was no
reasonable likelihood that a parent could substantially correct the conditions of abuse and neglect
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 . . . [has] not responded
to or followed through with a reasonable family case plan or other rehabilitative efforts[.]” In the
case at bar, as explained above, petitioner made little to no progress during her improvement
period, and the circuit court found that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future and that termination is
necessary for the children’s welfare. Given the circumstances presented in this case, we find no
error in the circuit court’s order terminating petitioner’s parental, custodial, and guardianship
rights to the children based on those findings.
For the foregoing reasons, we find no error in the circuit court’s June 18, 2015, order, and
we hereby affirm the same.
Affirmed.
ISSUED: November 23, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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