STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re L.W. September 3, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 20-0070 (Wood County 19-JA-103) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father J.W., by counsel Nancy L. McGhee, appeals the Circuit Court of Wood
County’s January 3, 2020, order terminating his parental rights to L.W.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”), Matthew E.
DeVore, filed a response on behalf of the child also in support of the circuit court’s order. Petitioner
filed a reply. On appeal, petitioner argues that the circuit court erred in adjudicating him upon
allegations contained in the amended petition, denying his motion for an improvement period, and
failing to allow him to voluntarily relinquish his parental rights.2
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 June of 2019, the DHHR filed an abuse and neglect petition alleging that petitioner
forcefully grabbed then two-week-old L.W. from the mother’s arms during the mother’s attempt
to escape domestic violence. Specifically, the mother told the DHHR worker that petitioner had
“been up on meth for 3 days” when he grabbed L.W. and appeared like he would drop the child.
The worker observed a red mark on the child’s neck and noted that it may be a bruise. 3 Another
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).
2
Petitioner does not challenge the termination of his parental rights.
3
The mark was later determined to be a birthmark, not a bruise.
1
witness also stated to the DHHR worker that she observed petitioner inappropriately holding the
infant “by the neck” and that she attempted to intervene during several instances of domestic
violence. Further, a detective reported watching petitioner improperly hold L.W. while wildly
waving his arms during an altercation. Finally, the DHHR alleged that the parents regularly abused
controlled substances, which impaired their ability to parent L.W.
The following month, the circuit court held an adjudicatory hearing during which petitioner
stipulated to the substance abuse allegations contained in the petition and the circuit court
adjudicated him as an abusing parent. The circuit court also granted petitioner a post-adjudicatory
improvement period, the terms of which included submitting to random drug screening, attending
parenting and adult life skills classes, participating in individualized therapy sessions, completing
a substance abuse evaluation, and attending supervised visitations. Most importantly, petitioner’s
case plan required that he keep his home free of domestic violence. By the end of June of 2019,
petitioner tested positive for tetrahydrocannabinol (“THC”). In early August of 2019, petitioner
again tested positive for THC and failed to submit to drug screens thereafter.
The DHHR filed an amended petition in August of 2019, alleging that petitioner pointed a
loaded gun at the mother’s head and threatened to kill her. The DHHR further alleged that when
the mother struggled to get away the firearm discharged, and she later obtained a domestic violence
protective order against petitioner. Also, during separate incidents of domestic violence, the
DHHR alleged that petitioner sexually assaulted the mother with a broken broom stick, burned her
with cigarettes, punched her, and destroyed her personal items. The DHHR worker confirmed that
the mother had a cigarette burn on her neck and an officer observed various bruises on the mother’s
elbow and knee. The parents engaged in domestic violence outside of the visitation center during
a scheduled supervised visit with the child in September of 2019. That same month, the
multidisciplinary team members agreed to suspend petitioner’s supervised visitations due to his
repeated acts of domestic violence.
In October of 2019, the circuit court held an adjudicatory hearing upon the amended
petition. Petitioner requested that the circuit court allow him to voluntarily relinquish his parental
rights to L.W. The DHHR and the guardian objected, arguing that the young parents were likely
to have future children who could be abused and that the burden should be placed upon the parents
to show a change of circumstances. The guardian further argued that the egregious allegations in
this case warranted the involuntary termination of petitioner’s parental rights. Having heard the
arguments, the circuit court denied petitioner’s request and proceeded with the adjudicatory
hearing. The mother then testified that when petitioner attacked her with the broken broom handle,
she suffered from a wound that required ten stiches. She stated that she sought medical treatment
at least three times since July of 2019 due to petitioner’s continuous acts of domestic violence,
which included cigarette burns, stalking, and threats to her life. She additionally testified that the
gun discharged into the ceiling during the incident where petitioner threatened to kill her. Most
importantly, the mother testified that prior to L.W.’s removal, petitioner forcefully grabbed L.W.
from her during a domestic violence incident. She described petitioner as upset, angry, yelling,
and carelessly holding L.W. The mother was concerned that petitioner “would drop her or break
her neck.” The mother also explained that the police were contacted during this incident and that
she left the home that night but later returned with the baby. Ultimately, the circuit court found
that petitioner’s acts of domestic abuse had increased since the child’s removal and terminated
2
petitioner’s improvement period. The circuit court adjudicated petitioner as an abusing parent
based upon the new allegations and set the matter for disposition.
The circuit court held a final dispositional hearing in December of 2019. Petitioner testified
that he was employed, had housing, and was able to participate in an improvement period. He
explained that the mother was accidentally cut by the broom handle when he threw it across the
room and denied claims of punching the mother. However, petitioner admitted to the incident
involving the firearm but minimized his role as a domestic abuser. The mother also testified, and
contrary to her prior testimony, stated that the incidents of domestic violence were accidents and
blamed her own mother for the DHHR’s involvement with the child. Finally, the DHHR presented
evidence that petitioner had failed to attend his substance abuse evaluation, sign releases regarding
his therapy sessions, and avoid THC and alcohol during his improvement period. Ultimately, the
circuit court found that petitioner’s acts of domestic violence had only increased in prevalence and
severity since the child had been removed from his care and that he had done nothing to address
his substance abuse. The circuit court concluded that there was no reasonable likelihood that
petitioner could correct the conditions of abuse and neglect in the near future and that the
termination of his parental rights was necessary for the child’s welfare. The circuit court terminated
petitioner’s parental rights by order entered on January 3, 2020. It is from this dispositional order
that he now appeals.4
The Court has previously established the following standard of review in cases such as this:
“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).
On appeal, petitioner first argues that the circuit court erred in adjudicating him as an
abusing parent based upon the allegations contained in the amended petition. According to
petitioner, because the child was not in his custody during the instances of domestic abuse with
The mother’s parental rights were also terminated below. According to the DHHR, the
4
permanency plan for the child is adoption by her maternal grandmother.
3
the mother, there was no abuse that occurred to the child and, therefore, there was insufficient
evidence to adjudicate him as an abusing parent. We disagree.5
We have previously required as follows:
At the conclusion of the adjudicatory hearing, the 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 . . . . The findings must be based upon
conditions existing at the time of the filing of the petition and proven by clear and
convincing evidence.
In re F.S., 233 W. Va. 538, 544, 759 S.E.2d 769, 775 (2014). This Court has explained that “‘clear
and convincing’ is the measure or degree of proof that will produce in the mind of the factfinder a
firm belief or conviction as to the allegations sought to be established.” Id. at 546, 759 S.E.2d at
777 (citation omitted). However, “the clear and convincing standard is ‘intermediate, being more
than a mere preponderance, but not to the extent of such certainty as is required beyond a
reasonable doubt as in criminal cases.’” Id. (citation omitted). Pursuant to West Virginia Code §
49-1-201, an “abused child” is one whose health or welfare is being harmed or threatened by
“[d]omestic violence as defined in § 48-27-202 of this code.”
Here, petitioner concedes that he perpetrated acts of domestic abuse upon the mother after
the removal of the child but argues that there was no evidence that the child witnessed any of the
abuse or was a victim of the abuse herself. However, the record reveals otherwise. The mother
testified that petitioner forcefully grabbed the two-week-old infant during an altercation of
domestic abuse prior to the child’s removal and that she was concerned he would seriously injure
the child. Additionally, two other witnesses reported to the DHHR worker seeing petitioner
improperly hold L.W. while wildly waving his arms during alternations. Further, as indicated
above, the amended petition alleged that petitioner’s egregious acts of domestic violence had only
increased in severity since the child’s removal, making reunification with the child impossible.
Clearly, the child would be placed in extreme danger if returned to petitioner’s care as evidenced
by the discharging of a firearm, threats to kill himself and the mother, and repeated physical
violence perpetrated upon the mother. Notably, petitioner failed to testify at the adjudicatory
hearing to rebut these allegations of continued domestic violence, and, on appeal, fails to
appreciate the fact that the child would have been in danger had the DHHR not removed the child
from his care. As there was clear and convincing evidence that petitioner’s acts of domestic
violence occurred while the child was in his custody as well as after the child was removed, we
find no error in the circuit court’s adjudication of petitioner as an abusing parent.
Petitioner next argues that the circuit court erred in denying him an improvement period
“on the amended petition.” Petitioner argues that he complied with the terms of his post-
5
Petitioner attempts to distinguish the facts of this case from those of In re J.P., 240 W.
Va. 266, 810 S.E.2d 268 (2018), by arguing that no instances of domestic violence occurred in the
presence of the subject child. However, as will be discussed further, there was evidence presented
that the child was present during at least one instance of domestic violence prior to her removal by
the DHHR. Therefore, petitioner’s reliance upon In re J.P. is misplaced and will not be considered
here.
4
adjudicatory improvement period prior to the amended petition’s filing by submitting to drug
screens, attending therapy sessions, taking prescribed medications, and attending supervised
visitations. Petitioner contends that he would have continued to comply with his improvement
period had his services not been stopped. According to petitioner, his acknowledgment of his
domestic abuse, coupled with his realization that the outcome of the dispositional hearing would
determine whether he retained his parental rights to his daughter, constituted a material change in
circumstances warranting the granting of a post-dispositional improvement period.6 Upon our
review, we find that petitioner is entitled to no relief in this regard.
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 . .
. .”). We have also held that a parent’s “entitlement to an improvement period is conditioned upon
the ability of the [parent] to demonstrate ‘by clear and convincing evidence that the respondent is
likely to fully participate in the improvement period.’” In re Charity H., 215 W. Va. 208, 215, 599
S.E.2d 631, 638 (2004). Lastly, West Virginia Code § 49-4-610(3)(D) provides that a circuit court
may grant a parent a post-dispositional improvement period when
[s]ince the initiation of the proceeding, the [parent] has not previously been granted
any improvement period or the [parent] demonstrates that since the initial
improvement period, the [parent] has experienced a substantial change in
circumstances. Further, the [parent] shall demonstrate that due to that change in
circumstances, the [parent] is likely to fully participate in the improvement period.
Having reviewed the record, we find that the circuit court did not err in denying petitioner’s
request for a post-dispositional improvement period. Because petitioner was already granted a
post-adjudicatory improvement period during the proceedings, he was required to demonstrate (1)
a substantial change in circumstances and (2) that he was likely to fully participate in an
improvement period. Considering that the circuit court terminated petitioner’s post-adjudicatory
improvement period due to his continued acts of domestic violence against the mother and failure
to comply with its other terms, such as submitting to random drug screening, petitioner cannot
establish that he complied with his post-adjudicatory improvement period. Further, the change in
circumstances petitioner alleges to have occurred was his realization that his parental rights could
be terminated at the dispositional hearing. Contrary to petitioner’s contention on appeal that he
admitted that he was a domestic abuser below, the transcript of the dispositional hearing reveals
that petitioner explained away the incidents with the broom stick handle and the gun, and never
fully acknowledged his role as a domestic abuser or acknowledged how his domestic abuse
6
It is unclear whether petitioner argues that the circuit court erred in denying him a second
post-adjudicatory improvement period. However, at the adjudicatory hearing upon the amended
petition, the circuit court terminated petitioner’s existing post-adjudicatory improvement period
and, pursuant to West Virginia Code§ 49-4-610(3)(D), petitioner was only eligible for a post-
dispositional improvement period. Accordingly, we only address the circuit court’s denial of
petitioner’s request for a post-dispositional improvement period.
5
affected L.W. In fact, when questioned about his role as a domestic abuser, he only admitted that
he injured the mother in one instance but answered “that’s [n]ot who I am as a person.” We have
previously held that failure to acknowledge the issues of abuse and neglect render an improvement
period an “exercise in futility.” In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013)
(citation omitted). Finally, the circuit court, having heard all of the evidence throughout the
proceedings, found that petitioner’s testimony regarding his alleged change of heart lacked
credibility. “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). Accordingly, we find no error in the circuit court’s denial of his motion for a
post-dispositional improvement period.
Petitioner’s final assignment of error alleges that the circuit court erred in failing to accept
or properly consider his request to voluntarily relinquish his parental rights. According to
petitioner, the circuit court summarily denied his request without giving any “specific reasons for
its decision.” We find no merit in petitioner’s argument.
A circuit court has discretion in an abuse and neglect proceeding to accept
a proffered voluntary termination of parental rights, or to reject it and proceed to a
decision on involuntary termination. Such discretion must be exercised after an
independent review of all relevant factors, and the court is not obliged to adopt any
position advocated by the Department of Health and Human Resources.
Syl. Pt. 4, In re James G., 211 W. Va. 339, 566 S.E.2d 226 (2002). Clearly, the circuit court had
full discretion to reject petitioner’s request to voluntarily relinquish his parental rights and
petitioner cites no authority requiring the circuit court to make specific findings regarding its
decision. Regardless, the record reveals that the circuit court heard the arguments of the DHHR,
the guardian, and petitioner when considering whether to accept petitioner’s voluntarily
relinquishment. Petitioner points to no evidence that the circuit court abused its discretion in any
way. As such, we find petitioner is entitled to no relief in this regard.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 3, 2020, order is hereby affirmed.
Affirmed.
ISSUED: September 3, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
6