STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
March 24, 2017
RORY L. PERRY II, CLERK
In re: G.K., S.C., and M.C. SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 16-0859 (Mercer County 15-JA-142-DS, 15-JA-143-DS, & 15-JA-144-DS)
MEMORANDUM DECISION
Petitioner Mother A.K., by counsel David B. Kelley, appeals the Circuit Court of Mercer
County’s August 15, 2016, order terminating her parental, custodial, and guardianship rights to
seven-year-old G.K, one-year-old S.C., and nine-year-old M.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 (“guardian”), Monica Oglesby Holliday, 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
guardianship rights and in denying her 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 2012, the DHHR filed a petition for abuse and neglect against petitioner because M.C.
had multiple unexplained injuries. According to petitioner, M.C.’s injuries were self-inflicted
and caused by another child in the home. Thereafter, the circuit court dismissed the proceedings.
In April of 2015, the DHHR received another referral that M.C. presented with multiple bruises
on his body. During the investigation M.C. told Child Protective Services (“CPS’) workers that
petitioner hit him. However, the investigation was closed after M.C. admitted that he lied about
the sources of his bruises.
In September of 2015, the DHHR received another referral that M.C. had unexplained
bruises on his face, neck, back, and arms. During the investigation, M.C. told CPS workers that
the bruises were self-inflicted. However, G.K. told investigators that petitioner “spanks” and
“whoops” M.C. with a pink belt. G.K. also disclosed that petitioner “choked [M.C.] a few days
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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ago” and “put a rag in [M.C.’s] mouth.” As part of the investigation, medical professionals
concluded that the bruises were “suspicious of abuse” and that petitioner’s explanations were
inconsistent with the bruises. As a result, the DHHR filed a petition for abuse and neglect.
In March of 2016, the circuit court conducted an in camera interview with M.C. during
which he disclosed that petitioner was trying to kill him. M.C. also disclosed that petitioner hit
him with a wooden bat and held a knife to his throat. According to M.C., petitioner hit him
multiple times, choked him, bit his fingers, pulled his ears, and was responsible for the bruises on
his neck and chest. Thereafter, the circuit court held an adjudicatory hearing during which it
heard corroborating testimony that M.C.’s bruises were not self-inflicted. Importantly, the circuit
court heard testimony that M.C. has not suffered any injuries since he was removed from
petitioner’s care. Accordingly, the circuit court found that petitioner abused the children.2
Several months later, the circuit court held a dispositional hearing. A DHHR worker
testified that they were unable to formulate an improvement plan because petitioner denied that
she abused M.C. Multiple interested parties testified that petitioner was a good parent and that
she was willing to participate in an improvement period. The circuit court also heard testimony
that several witnesses have observed M.C. participate in self-injurious behavior. Lastly,
petitioner denied abusing M.C. After considering all of the evidence, the circuit court denied
petitioner an improvement period and terminated her parental, custodial, and guardianship rights
by order entered August 15, 2016.3 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).
2
Petitioner admitted that she was drunk during the adjudicatory hearing. Shortly
thereafter, petitioner was indicted on three counts of child abuse resulting in injury and one count
of domestic battery.
3
The circuit court also terminated the parental rights of S.C.’s father and M.C.’s father.
According to the guardian’s brief, as of the filing of her response brief, the permanency plan for
S.C. is adoption by the maternal grandmother. Similarly, the permanency plan for M.C. is to be
reunited with his biological mother. G.K. was reunited with his non-offending father.
2
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, the Court finds
no error in the proceedings below.
On appeal, petitioner argues that the circuit court erred in terminating her parental,
custodial, and guardianship rights because the evidence was insufficient to warrant termination.
Petitioner contends that there was no direct evidence that she physically abused M.C.
Furthermore, petitioner argues that the circuit court was presented with substantial evidence that
M.C. has a history of self-injury. We have previously held that
[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.
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)). This Court has also held as follows:
“[p]arental rights may be terminated where there is clear and convincing
evidence that the infant child has suffered extensive physical abuse while in the
custody of his or her parents, and there is no reasonable likelihood that the
conditions of abuse can be substantially corrected because the perpetrator of the
abuse has not been identified and the parents, even in the face of knowledge of the
abuse, have taken no action to identify the abuser.”
Syl. Pt. 3 In re: Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993). While petitioner testified that
she did not physically harm M.C., the circuit court also heard testimony she hit M.C. multiple
times, choked him, bit his fingers, pulled his ears, and was responsible for the bruises on his neck
and chest. Furthermore, petitioner maintained that M.C. self-inflicted some of his injuries despite
evidence that the bruises were inconsistent with self-injurious behavior. 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.”). Importantly, the circuit court
also heard testimony that M.C. had been injury free since he was removed from petitioner’s care.
Based upon petitioner’s willful refusal to acknowledge the conditions of abuse and neglect in the
home, coupled with M.C.’s testimony, the circuit court had sufficient evidence upon which to
find there was no reasonable likelihood petitioner could substantially correct the conditions of
abuse and neglect. For these reasons, termination of petitioner’s parental, custodial, and
guardianship rights to the children was not error.
3
Petitioner also argues that the circuit court erred in denying her motion for an
improvement period. Pursuant to West Virginia Code § 49-4-610, “[a] court may grant a
respondent an improvement period . . . when the respondent files a written motion . . . and
demonstrates, by clear and convincing evidence, that the respondent is likely to fully participate
in the improvement period[.]” See also 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)). The
decision to grant or deny a parent’s motion for an improvement period in an abuse and neglect
proceeding is a discretionary decision left to the sound judgment of the circuit court. See Syl. Pt.
2, in part, In re Lacey P., 189 W.Va. 580, 433 S.E.2d 518 (1993) (stating that “[i]t is within the
court’s discretion to grant an improvement period within the applicable statutory requirements”).
In support of her argument, petitioner states that she testified that she was willing to
participate in any services necessary to regain the custody of her children. Similarly, petitioner
contends that multiple witnesses testified that she was an appropriate parent and would fully
comply with the terms of an improvement period. However, petitioner fails to discuss her
unwillingness to acknowledge the abuse and neglect problems that required improvement.
Indeed, petitioner’s argument wholly ignores that she continued to deny that she abused M.C.
and blamed M.C.’s injuries on himself. Based upon the evidence presented to the circuit court,
particularly petitioner’s failure to acknowledge the abuse and neglect problems at issue, we find
no error in the circuit court’s denial of petitioner’s motion for an improvement period in this
case.
For the foregoing reasons, we hereby affirm the circuit court’s August 15, 2016, order.
Affirmed.
ISSUED: March 24, 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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