STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re A.Y. September 23, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 20-0022 (Wood County 18-JA-196) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father C.Y., by counsel Justin M. Raber, appeals the Circuit Court of Wood
County’s December 19, 2019, order following the termination of his parental rights to A.Y.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, Jessica Myers, filed
a response on behalf of the child in support of the circuit court’s order. On appeal, petitioner argues
that the circuit court erred in denying his motion for a post-adjudicatory improvement period,
terminating his parental rights upon insufficient evidence, and failing to impose the least-restrictive
dispositional alternative.
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 December of 2018, the DHHR filed an abuse and neglect petition alleging that
petitioner’s parental rights to an older child were involuntarily terminated in a prior proceeding
because of his failure to protect the older child from abuse and neglect related to substance abuse.2
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
The petition included in the appendix record on appeal does not clearly set forth the
specific procedural history of the prior termination of petitioner’s parental rights, though it does
set forth a detailed account of the conditions of abuse and neglect that resulted in that prior
(continued . . . )
1
In regard to A.Y., the DHHR alleged that petitioner’s failure to remedy the conditions of abuse
and neglect from the prior proceeding constituted abuse and/or neglect to that child. Specifically,
the DHHR alleged that the child’s mother’s rights to an older child were previously involuntarily
terminated due to substance abuse and, despite the persistence of this substance abuse, petitioner
continued his relationship with the mother. Following the petition’s filing, the matter was
continued several times due to issues regarding service of the petition. Ultimately, petitioner
stipulated to the allegations against him at an adjudicatory hearing in September of 2019.
Thereafter, petitioner filed a motion for a post-adjudicatory improvement period. During
hearings in October of 2019 and November of 2019, the circuit court heard evidence in relation to
both the motion for an improvement period and disposition. Specifically, the circuit court heard
evidence related to petitioner’s continued failure to remedy the conditions of abuse and neglect
that persisted across two separate proceedings. In the prior proceeding, petitioner was required to
have no contact with the mother, given that her substance abuse posed a threat to petitioner’s older
child’s wellbeing. However, petitioner continued his relationship with the mother and lied to the
circuit court and the multidisciplinary team about that contact. As a result, his parental rights to
his older child were involuntarily terminated. During the dispositional hearings in this matter,
petitioner acknowledged that his parental rights to his older child were terminated because of his
continued relationship with the mother and his dishonesty about that relationship. However,
petitioner deflected his responsibility for these issues and blamed the DHHR for the termination
of his parental rights. Petitioner additionally indicated that he no longer had contact with the
mother, but a witness testified to having seen them together on at least two separate occasions.
Petitioner denied having been with the mother, although he admitted that he previously testified in
the prior proceeding that he would not end his relationship with the mother even if it jeopardized
his parental rights. Ultimately, the circuit court found that there was no reasonable likelihood that
petitioner could substantially correct the conditions of abuse and neglect and that termination of
his parental rights was in the child’s best interests. As such, the circuit court terminated petitioner’s
parental rights to the child.3 The circuit court then held a hearing regarding petitioner’s request for
post-termination visitation, after which it denied such visitation upon finding that it was not in the
child’s best interests. It is from the circuit court’s December 19, 2019, order that petitioner appeals.
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
termination. While it is unclear, exactly, when petitioner’s parental rights to this older child were
terminated, the parties agree that the basis for the petition related to A.Y. was the prior termination
of petitioner’s parental rights to an older child and his failure to remedy those conditions of abuse
and neglect.
The mother’s parental rights were also terminated below. According to respondents, the
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permanency plan for the child is adoption in the current foster home.
2
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).
As a threshold matter, it is important to address the fact that all of petitioner’s assignments
of error can be resolved by the following:
[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) (citation omitted). While
petitioner argues that he acknowledged the conditions of abuse and neglect by virtue of his
stipulation, the record does not support this assertion. In fact, the record shows that petitioner was
given the opportunity to acknowledge these conditions across two separate abuse and neglect
proceedings, yet failed to appreciate the danger that the child’s mother’s substance abuse posed.
During the prior proceeding, petitioner was dishonest with the circuit court and the parties
regarding his continued relationship with the mother and admitted that he would continue that
relationship despite knowing that it could result in the termination of his parental rights to an older
child. In the current matter, petitioner testified that he ended his relationship with the mother, but
eyewitness testimony established that the two were together on at least two separate occasions.
Given petitioner’s past dishonesty regarding his relationship with the mother, the circuit court was
free to weigh this evidence and find that petitioner’s self-serving testimony lacked credibility.
Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997) (“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.”). As such, we decline to disturb any such credibility determinations on appeal.
Turning to petitioner’s first assignment of error, we find no error in the circuit court’s denial
of petitioner’s motion for a post-adjudicatory improvement period. Given that petitioner failed to
acknowledge the conditions of abuse and neglect that resulted in the petition’s filing, it is clear
that an improvement period was not warranted. This is especially true in light of the fact that circuit
courts are afforded discretion in the granting of such improvement periods. In re Tonjia M., 212
W. Va. 443, 448, 573 S.E.2d 354, 359 (2002) (“The circuit court has the discretion to refuse to
grant an improvement period when no improvement is likely.”). As set forth above, failure to
acknowledge the existence of the conditions of abuse and neglect makes an improvement period
futile. While petitioner argues that he should have been entitled to an improvement period because
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he followed the circuit court’s prohibition against contact with the mother, the record simply does
not support this assertion. Thus, we find no error in this regard.
Next, petitioner argues that termination of his parental rights was erroneous because there
was insufficient evidence to establish that there was no reasonable likelihood the conditions of
abuse and neglect could be substantially corrected. However, petitioner fails to cite to any evidence
that would cause this Court to call the circuit court’s finding on this issue into question. Instead,
petitioner argues that the circuit court made insufficient findings to support this conclusion. We
disagree, and note that the evidence overwhelmingly supports the conclusion that there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect
in the near future. Put succinctly, the evidence below showed that petitioner’s parental rights to an
older child were involuntarily terminated in a prior proceeding because of his failure to protect the
child from the mother’s substance abuse and his continued relationship with her. The evidence in
the current matter shows that petitioner continued this relationship. According to West Virginia
Code § 49-4-604(d)(3), a situation in which there is no reasonable likelihood that the conditions
of abuse and neglect can be substantially corrected in the near future includes when “[t]he 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.” Here, the evidence showed that petitioner
failed to undertake efforts to participate in remedial services, given that his dishonesty about his
continued relationship with the mother and his failure to acknowledge the danger that relationship
posed to the children prevented his meaningful participation. As such, we find no error.
Petitioner further argues that because he shared a strong emotional bond with the child,
who was removed from his care at birth, the circuit court should have imposed a less-restrictive
dispositional alternative. According to petitioner, he established this bond by visiting regularly
with the child, but he cites to no evidence in support of this assertion. We find petitioner’s
argument unavailing, especially in light of the fact that “[o]ur cases indicate that a close emotional
bond generally takes several years to develop.” In re Alyssa W., 217 W. Va. 707, 711, 619 S.E.2d
220, 224 (2005). Rather than supporting his position regarding a less-restrictive dispositional
alternative, the child’s young age supports the circuit court’s finding that termination of
petitioner’s parental rights was necessary for the child’s welfare and in order to achieve
permanency. Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4 (“[C]hildren under the age
of three years . . . are more susceptible to illness, need consistent close interaction with fully
committed adults, and are likely to have their emotional and physical development retarded by
numerous placements.”).
According to West Virginia Code § 49-4-604(c)(6), a circuit court may 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 that termination is necessary for the child’s
welfare. Given the analysis above regarding the circuit court’s findings on these issues, it is clear
that termination of petitioner’s parental rights was not in error. Moreover, this Court has held that
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [West Virginia
Code § 49-4-604] . . . may be employed without the use of intervening less
4
restrictive alternatives when it is found that there is no reasonable likelihood under
[West Virginia Code § 49-4-604(d)] . . . 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). As such, we find that the circuit
court did not err in terminating petitioner’s parental rights.4
For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 19, 2019, order is hereby affirmed.
Affirmed.
ISSUED: September 23, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
4
In support of this assignment of error, petitioner asserts that “no consideration was given
to allow visitation between the [p]etitioner and the minor child.” Petitioner then cites the following:
“When parental rights are terminated due to neglect or abuse, the circuit
court may nevertheless in appropriate cases consider whether continued visitation
or other contact with the abusing parent is in the best interest of the child. Among
other things, the circuit court should consider whether a close emotional bond has
been established between parent and child and the child’s wishes, if he or she is of
appropriate maturity to make such request. The evidence must indicate that such
visitation or continued contact would not be detrimental to the child’s well being
and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
446, 460 S.E.2d 692 (1995).
Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002). Petitioner fails to acknowledge,
however, that the circuit court convened a hearing for the sole purpose of considering whether
post-termination visitation was appropriate. In short, petitioner cites to no evidence that continued
contact with him would be in the child’s best interests. Given the child’s young age and taking into
consideration the child’s best interests, we find no error in the circuit court’s denial of petitioner’s
request for post-termination visitation.
5