STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
February 15, 2019
EDYTHE NASH GAISER, CLERK
In re A.E., L.E., Z.E., and D.P. SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 18-0722 (Taylor County 18-JA-20, 18-JA-21, 18-JA-22, and 18-JA-23)
MEMORANDUM DECISION
Petitioner Mother K.A., by counsel Keith Skeen, appeals the Circuit Court of Taylor
County’s July 17, 2018, order terminating her parental rights to A.E., L.E., Z.E., and D.P.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Terri L. Tichenor, filed a response on behalf of the children in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying her
motion for an improvement period, disregarding the recommendation of the DHHR, relying on
D.P.’s testimony, finding that she was not likely to participate in services, and terminating her
parental rights.
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 February of 2018, the DHHR filed a petition alleging that the father utilized
inappropriate physical discipline against seven-year-old D.P., including choking the child and
cutting the child with a razor, and that petitioner did not provide a safe environment for the
children. Additionally, the DHHR alleged that petitioner engaged in domestic violence with the
father in the presence of the children and failed to maintain a sanitary home. According to the
DHHR, the home was littered with dog feces and presented an overwhelming smell. Finally, the
DHHR alleged that petitioner failed to administer the children’s medications on a consistent
basis. Petitioner waived her preliminary hearing. The circuit court held an adjudicatory hearing
in May of 2018. The circuit court found that the DHHR proved by clear and convincing evidence
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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that the children were abused and neglected. Petitioner moved for a post-adjudicatory
improvement period, which the circuit court denied.
In June of 2018, the circuit court held the final dispositional hearing and petitioner
renewed her motion for a post-adjudicatory improvement period. The DHHR presented evidence
that petitioner continued to believe the father’s claim that he did not abuse D.P. against the best
interests of her children. Further, the evidence showed that petitioner alleged the circuit court and
the DHHR were corrupt during the most recent multidisciplinary team (“MDT”) meeting. The
DHHR suggested that a psychological evaluation might help petitioner recognize her
deficiencies. However, the circuit court reasoned that petitioner’s failure to acknowledge that her
children were abused by the father rendered the conditions of abuse and neglect untreatable.
Accordingly, the circuit court denied petitioner’s second motion for a post-adjudicatory
improvement period and terminated petitioner’s parental rights to the children. The circuit court
memorialized its decision in its July 17, 2018, order. Petitioner now appeals that order.2
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). Upon our review, this Court
finds no error in the proceedings below.
On appeal, petitioner first argues that the circuit court erred in denying her motion for an
improvement period. Petitioner asserts that she demonstrated by clear and convincing evidence
that she would comply with an improvement period through her participation in services
provided by the DHHR, such as parenting classes, drug screens, and attendance at MDT
meetings.3 We disagree. West Virginia Code § 49-4-610(2) provides that a circuit court may
2
The respective fathers’ parental rights have been terminated. According to the parties,
the permanency plan for the children is adoption in their current relative foster placement.
3
In support of this and the following arguments, petitioner, by her counsel, cites to
materials that were not provided on appeal, including transcripts of hearings and the circuit
(continued . . . )
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grant a post-adjudicatory improvement period when “[t]he respondent files a written motion
requesting the improvement period” and “demonstrates, by clear and convincing evidence, that
the respondent is likely to fully participate in the improvement period[.]” 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) (“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) (“It is within the court’s discretion to grant an
improvement period within the applicable statutory requirements. . . .”).
Further, this Court has 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)). The circuit court did not err in denying
petitioner’s motion for a post-adjudicatory improvement period because petitioner failed to
acknowledge the existence of the problem. The circuit court found that D.P. was physically
abused by the father, but petitioner consistently denied that the father abused the child. The
circuit court’s denial of petitioner’s motion was consistent with our holding in Timber M. that a
parent must acknowledge the existence of the problem before treatment can be effective.
Accordingly, we find no error in the circuit court’s denial of petitioner’s motion for a post-
adjudicatory improvement period.
Petitioner also argues that the circuit court erred in finding that she was not likely to
participate in services. However, the record contains no evidence that petitioner complied with
services during the proceedings. Rather, the record reflects that petitioner believed that the
DHHR and circuit court were corrupt and no longer believed that any of the allegations in the
petition were true. Therefore, we find no error in the circuit court’s finding that petitioner was
not likely to participate in services.
Next, petitioner argues that the circuit court erred in relying on D.P.’s statements
regarding the abuse by the father because D.P. was a “mentally unstable child” and diagnosed
with Oppositional Defiant Disorder. Petitioner asserts that the evidence presented showed that
children with Oppositional Defiant Disorder are more likely to be dishonest and that D.P. stated
court’s orders. In fact, petitioner provided only the initial petition and the final dispositional
order in the record for her appeal.
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he did not know right from wrong.4 We find petitioner is entitled to no relief. With regard to
witness credibility, we have held 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.” Michael D.C. v.
Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997). The circuit court found that D.P.
was credible and that another child described the “deliberate cutting and choking of the infant
child [D.P.]” Further, the record on appeal, such as it is, does not support petitioner’s argument.
It contains no evidence that D.P. was dishonest or that children with Oppositional Defiant
Disorder are generally dishonest. Accordingly, we find petitioner is not entitled to relief.
Finally, petitioner argues that the circuit court erred in terminating her parental rights.
Petitioner claims that the circuit court should have allowed her to participate in a psychological
evaluation, which was recommended by the DHHR. We disagree. West Virginia Code § 49-4-
604(b)(6) provides that circuit courts are to terminate parental rights upon findings 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 child’s welfare. West Virginia Code §
49-4-604(c)(3) provides that a situation in which there is no reasonable likelihood the conditions
of abuse and neglect can be substantially corrected includes one in which the abusing parent
“ha[s] not responded to or followed through with a reasonable family case plan or other
rehabilitative efforts of social, medical, mental health or other rehabilitative agencies designed to
reduce or prevent the abuse or neglect of the child. . . .”
The circuit court correctly found that there was no reasonable likelihood that the
conditions of abuse and neglect could be corrected in the near future because petitioner failed to
acknowledge the existence of the abuse and rendered the problem untreatable. Petitioner
consistently denied the abuse that the circuit court found to have occurred by clear and
convincing evidence. Therefore, no form of treatment would be successful in treating the abuse
petitioner would not recognize. Further, it was clearly necessary for the children’s welfare to
terminate petitioner’s parental rights to avoid further physical abuse.
Petitioner also argues that the circuit court erred in terminating her parental rights
because she did not knowingly allow another person to inflict injury on D.P. However, petitioner
admits that this Court has held that
“[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.”
4
Again, petitioner, by her counsel, supports her argument with citations to materials that
were not provided on appeal.
4
Syl. Pt. 6, W.Va. Dept. of Health and Human Res. ex rel. Wright v. Doris S., 197 W.Va. 489, 475
S.E.2d 865 (1996). Further, “[t]he term ‘knowingly’ . . . does not require that a parent actually be
present at the time the abuse occurs, but rather that the parent was presented with sufficient facts
from which [she] could have and should have recognized that abuse has occurred.” Id at 492, 475
S.E.2d 868, syl. pt. 7. Petitioner asserts that there was no evidence provided that she knew the
father abused the children. However, when petitioner was confronted with the clear and
convincing evidence of abuse presented to the circuit court at the adjudicatory hearing she
continued to deny that the abuse occurred.
We have held as follows:
“Termination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, W. Va.Code [§]
49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the
use of intervening less restrictive alternatives when it is found that there is no
reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code
§ 49-4-604(c)] . . . that conditions of neglect or abuse can be substantially
corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).
Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). The circuit court did not err in
finding that there was no reasonable likelihood that the conditions of abuse and neglect could be
substantially corrected or in finding that termination was necessary for the welfare of the child.
Accordingly, we find no error in the circuit court’s termination of petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 17, 2018, order is hereby affirmed.
Affirmed.
ISSUED: February 15, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
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