STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS
November 4, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re H.B., L.M., K.C., and L.C.
No. 20-0178 (Ohio County 19-CJA-74, 19-CJA-75, 19-CJA-76, and 19-CJA-77)
MEMORANDUM DECISION
Petitioner Father J.M., by counsel Joshua J. Norman, appeals the Circuit Court of Ohio
County’s January 22, 2020, order terminating his parental and custodial rights to H.B., L.M., K.C.,
and L.C. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Brandolyn N. Felton-Ernest, filed a response in support of the circuit court’s order. The guardian
ad litem, Mark D. Panepinto, 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 his right to a
meaningful opportunity to be heard, finding aggravated circumstances applied, denying him an
improvement period, finding that there was no reasonable likelihood he could substantially correct
the conditions of abuse and neglect, and terminating his parental and custodial 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 May of 2019, the DHHR filed an abuse and neglect petition alleging that petitioner
abused and neglected the children. 2 At the time, the children resided with their mother, their
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 is the biological father of L.M. only, but claims to be a psychological parent of
the remaining children. According to the record, all the children resided with petitioner at times
and call him “dad.” Although the circuit court did not make any finding as to whether petitioner
(continued . . . )
1
maternal grandmother, and the grandmother’s boyfriend, D.H. According to the DHHR, petitioner
also resided at the home occasionally. The petition set forth information from a referral alleging
that D.H. would make his grandson, L.H., who is not at issue in this appeal, smoke marijuana with
the mother, the grandmother, and other children. The referral also alleged that D.H. would force
his grandson and L.M. to disrobe and engage in sexual intercourse with one another. During a
Child Protective Services (“CPS”) investigation into D.H.’s abuse of his grandson, the grandson
confirmed these allegations, in addition to disclosing that D.H. would handcuff and restrain him
in a cage at times.
CPS continued to investigate the matter and discovered that petitioner had previously
admitted knowledge of D.H.’s sexual abuse of L.M. and H.B. Specifically, two witnesses indicated
that petitioner previously asked to move himself, the mother, and the children into the witnesses’
home because of the sexual abuse. Additionally, the petition alleged that petitioner “admitted to
CPS that he was aware that [D.H.] was sexually abusing [the children].” Specifically, petitioner
described an incident in which he came to the home and found L.M. locked in her room, terrified.
The child disclosed that D.H. attempted to have her perform fellatio on him, at which point she
locked herself in her room. According to petitioner, the child’s room contained bowls of feces and
urine that the child used to relieve herself because of her fear of leaving the room. Petitioner further
admitted that two of the children confided in him and the mother about the abuse, but that neither
parent reported the abuse or confronted D.H. Petitioner further corroborated L.H.’s reports of being
confined, describing having seen the child restrained in handcuffs and a dog cage. Again, petitioner
failed to obtain any help for the child. Finally, the petition alleged that the conditions in the home
were deplorable, the home at times lacked appropriate utilities, and the parents provided the
children with insufficient food. At the time the children were removed, the two youngest children
were infected with lice, one child had ringworm, and another was behind on immunizations. Based
on these conditions, the DHHR alleged that petitioner abused and neglected the children.
Following the petition’s filing, petitioner waived his preliminary hearing.
Thereafter, petitioner filed a motion for a post-adjudicatory improvement period. In
opposition to this motion, the DHHR argued that petitioner previously admitted that he was aware
of the sexual abuse in the home, although the DHHR had been informed that petitioner recanted
that statement. According to the DHHR, petitioner’s recantation was not in the children’s best
interest “and show[ed] that he is only motivated by protecting himself and [the mother].” Further,
despite petitioner’s recantation, the DHHR alleged that he “claims to have this incredible fear of
[D.H.], yet he allowed his children to be exposed to [D.H.].” The DHHR further alleged that
petitioner tested positive for various controlled substances during several drug screens and that
“[h]e still cannot place his child’s interest before his own.”
In August of 2019, the circuit court held an adjudicatory hearing. Following the
presentation of the evidence, the circuit court adjudicated petitioner as an abusing and neglecting
parent. The following month, the circuit court held a hearing on petitioner’s motion for a post-
should enjoy status as a psychological parent of the other children, it nonetheless terminated
petitioner’s parental and custodial rights “to his child [L.M.] and the other children, [H.B., L.C.]
and [K.C.].” Accordingly, we will address the circuit court’s actions as they relate to all of the
children below, not just petitioner’s lone biological child.
2
adjudicatory improvement period. Based on the evidence, the circuit court found that petitioner
previously admitted to the DHHR that he and the mother knew of the sexual abuse in the home,
although petitioner later recanted this statement. The circuit court also found that petitioner
“reported seeing [D.H.] keep [his grandson] in a dog cage.” Accordingly, the circuit court found
that petitioner failed to protect the children. Further, the circuit court noted petitioner’s repeated
positive screens when he submitted to drug testing. As such, the circuit court found that an
improvement period would be futile and denied the same. 3
Following dispositional hearings in November and December of 2019, the circuit court
made detailed findings regarding petitioner’s inability to correct the conditions of abuse and
neglect. The court found that petitioner participated in drug screens from June of 2019 to
September of 2019, during which time “he was positive for THC every time” and also tested
positive for oxycodone and opiates on a few occasions. According to the record, petitioner
admitted that he did not have a prescription for the oxycodone and opiates. Further, petitioner
ceased his compliance with drug screens following the earlier denial of his motion for an
improvement period. The circuit court further found that petitioner participated in only five
supervised visits with L.M. Petitioner was offered transportation to the visits but elected to drive
himself. Despite the offer of transportation, petitioner testified that he could not visit the child
more frequently “because it costs too much money for gas to get to the visits.” Finally, one of
petitioner’s service providers testified that petitioner had not fully acknowledged his abuse and
neglect of the children, having repeatedly denied any knowledge of the abuse D.H. perpetrated
despite evidence to the contrary.
Based on this evidence, the circuit court found that petitioner failed to demonstrate that he
was likely to fully participate in an improvement period and that petitioner’s “protective capacities
are so severely compromised and/or non-existent . . . as to render any . . . improvement period . . .
futile.” Further, the circuit court found that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect given that he repeatedly or seriously
injured the children physically or emotionally and exposed them to sexual abuse. Because
petitioner demonstrated an inadequate capacity to solve the problems of abuse and neglect on his
own or with help, the court found that the children’s welfare and best interests required termination
of his parental and custodial rights. As such, the court denied petitioner’s request for a post-
dispositional improvement period and terminated his parental and custodial rights to the children. 4
It is from the dispositional 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
3
Petitioner later filed a motion to reconsider the denial of his motion for an improvement
period, which the circuit court treated as a motion for a post-dispositional improvement period.
4
All the children’s parents’ parental and custodial rights were either terminated or
voluntarily relinquished below. H.B. has reached the age of majority. The permanency plan for the
remaining children is to be adopted in a single foster home.
3
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 alleges that the circuit court violated his due process rights by
denying him the opportunity to be heard at adjudication. We find, however, that petitioner waived
this issue by failing to object below. In support of this assignment of error, petitioner cites to a
brief exchange with the circuit court as follows:
THE COURT: All right. Do you have any witnesses?
[PETITIONER’S COUNSEL]: I’m contemplating.
THE COURT: I will tell you that I think the State has pretty clearly met its burden.
I’ve got enough evidence. You can put your client on. I’m not sure what he’s going
to say that’s going to make me change my mind, though.
[PETITIONER’S COUNSEL]: That’s what I was going to do.
THE COURT: So I’m going to find that there is clear and convincing evidence of
abuse and neglect in this case against each of the three remaining [parents].
Petitioner argues that this limited exchange with the circuit court constituted a violation of
his right to be heard under West Virginia Code § 49-4-601(h), which provides, in relevant part,
that “[i]n any proceeding pursuant to this article, the party or parties having custodial or other
parental rights or responsibilities to the child shall be afforded a meaningful opportunity to be
heard, including the opportunity to testify and to present and cross-examine witnesses.” We find
that the record does not support petitioner’s assertion that the circuit court violated this right. In
fact, the circuit court specifically asked petitioner’s counsel if he desired to present any witnesses,
at which point counsel indicated that he was unsure whether he intended to do so. Further, while
it is true that the circuit court indicated that it believed the State had satisfied its burden of proof
for adjudication, it nonetheless told counsel that he could call petitioner as a witness. Instead of
affirmatively informing the court of a desire to present any witnesses, including petitioner, counsel
permitted the circuit court to proceed to a finding as to adjudication without raising any objection.
In support of his argument, petitioner relies heavily on our prior decision of In re T.S., 241
W. Va. 559, 827 S.E.2d 29 (2019). That case, however, is easily distinguishable from the instant
4
matter because the circuit court in T.S. unequivocally denied the father the opportunity to present
witnesses or testify on his own behalf. Id. at 564, 827 S.E.2d at 34. Specifically, the circuit court
in that matter refused to permit the father to call a CASA representative as a witness and, when
the father’s counsel indicated that the father wished to testify, the court asked counsel what the
substance of that testimony would be and then converted counsel’s statement into a proffer. Id. at
562, 827 S.E.2d at 32. Here, the circuit court took no such affirmative actions to deny petitioner
his rights. On the contrary, the circuit court asked petitioner’s counsel if he wished to present any
witnesses, to which counsel responded with uncertainty. After the circuit court voiced its
understanding of the evidence as already presented, it informed counsel that he could call petitioner
as a witness, which counsel failed to do. As such, petitioner’s reliance on T.S. is misplaced.
Petitioner is correct that the applicable statutes governing abuse and neglect proceedings
“and the Due Process Clauses of the West Virginia and United States Constitutions prohibit a court
or other arm of the State from terminating the parental rights of a natural parent having legal
custody of his child, without notice and the opportunity for a meaningful hearing.” Syl. Pt. 2, in
part, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973). What petitioner fails to recognize,
however, is that he was afforded this meaningful opportunity to be heard, as the record shows that
he and his counsel participated in a lengthy adjudicatory hearing that resulted in over 250 pages of
transcript in the appendix record on appeal and reveals counsel’s extensive cross-examination of
several witnesses. That petitioner waived his right to call witnesses or otherwise testify on his own
behalf does not constitute a violation of his right to be heard, and, therefore, he is entitled to no
relief in this regard. 5
Petitioner next argues that the circuit court erred in finding that aggravated circumstances
existed in this matter, thereby absolving the DHHR of making reasonable efforts to preserve the
family. According to petitioner, the evidence established that D.H. subjected the children to sexual
abuse, not petitioner, and that a finding of aggravated circumstances against him was therefore
inappropriate. We find, however, that petitioner’s argument is unavailing.
According to West Virginia Code § 49-4-604(c)(7)(A),
5
In support of this assignment of error, petitioner further argues that because the circuit
court improperly dissuaded him from testifying, his silence at adjudication was also improperly
held against him. This Court has made it clear that circuit courts may make such considerations.
Syl. Pt. 2, W. Va. Dep’t of Health & Human Res. ex rel. Wright v. Doris S., 197 W. Va. 489, 475
S.E.2d 865 (1996) (“Because the purpose of an abuse and neglect proceeding is remedial, where
the parent or guardian fails to respond to probative evidence offered against him/her . . . , a lower
court may properly consider that individual’s silence as affirmative evidence of that individual’s
culpability.”). However, petitioner points to no instance where the circuit court used petitioner’s
silence as affirmative evidence of the allegations against him. Instead, petitioner argues that the
DHHR used petitioner’s silence against him in opposing his motions for improvement periods.
There is simply nothing that would preclude the DHHR from pointing to petitioner’s silence as its
motivation to oppose an improvement period. Further, because we find that the circuit court
offered petitioner the opportunity to testify, as set forth above, any argument predicated on the
allegation that petitioner was denied a meaningful opportunity to exercise this right must also fail.
5
the department is not required to make reasonable efforts to preserve the family if
the court determines . . . [t]he parent has subjected the child, another child of the
parent or any other child residing in the same household or under the temporary or
permanent custody of the parent to aggravated circumstances which include, but
are not limited to, abandonment, torture, chronic abuse, and sexual abuse.
Petitioner argues that he was unaware of the abuse until “a week or two before DHHR took the
children.” After being informed of the sexual abuse, petitioner argues that “[n]o abuse/neglect was
alleged to have occurred” between the date L.M. notified him of the sexual abuse and the children’s
removal. What petitioner fails to acknowledge, however, is that his failure to take any steps to
protect L.M. from sexual abuse is egregious, given that the child made detailed disclosures that
D.H. was attempting to force her to perform fellatio on him. Petitioner interprets the facts
surrounding L.M.’s disclosure to him and his reaction as appropriate when, in actuality, petitioner
left the child in the home with her abuser without taking any action to protect her.
For purposes of analyzing petitioner’s argument, it is sufficient to accept his version of the
facts as true, despite the fact that conflicting evidence exists as to when, exactly, petitioner was
made aware of L.M.’s abuse and the extent of that abuse. Taken at face value, petitioner asserts
that “he viewed a text from his daughter, L.M., stating that [D.H.] demanded that she ‘suck his
dick’ and had placed cameras in bedrooms and bathrooms to watch the children change, shower,
etc.” By his own admission, petitioner went to the home “and found his daughter locked in her
room due to fear of D.H.” Petitioner then alleges that he searched the home for cameras, found
none, and failed to contact law enforcement “because he did not know what to do.” This constitutes
the entirety of petitioner’s response to the child’s disclosure. By his own admission, petitioner left
the child in the home with someone who was attempting to sexually abuse her. Throughout his
brief, petitioner attempts to minimize his conduct by asserting that this was “strictly a failure to
protect case” and that D.H. alone was responsible for the aggravated circumstances to which the
children were subjected. We find, however, that these attempts to absolve himself of responsibility
for subjecting the children to the potential for further abuse after being made aware that it was
ongoing are insufficient to entitle petitioner to relief. Because the record shows that petitioner
subjected L.M. to continued exposure to D.H., her sexual abuser, it is clear that a finding of
aggravated circumstances was appropriate. This is especially true when considering that the
Legislature plainly stated in West Virginia Code § 49-4-604(c)(7)(A) that aggravated
circumstances “are not limited to” the listed circumstances.
In support of this assignment of error, petitioner also argues that the circuit court did not
make a finding of aggravated circumstances until the dispositional hearing, while the DHHR
treated the case as one of aggravated circumstances throughout. Petitioner argues that the circuit
court’s finding was an attempt to “cover for both DHHR and the State on their failures” and that
it was made “despite no evidence in support of said circumstances.” Given the analysis above
detailing the ample evidence of aggravated circumstances, it is clear that petitioner cannot succeed
in his attempts to predicate other arguments upon a lack of sufficient evidence and, thus, is entitled
to no relief. Further, petitioner’s assertion that the DHHR treated his case as one of aggravated
circumstances throughout by failing to provide him with any services is belied by the record, which
shows that the DHHR offered petitioner supervised visitation, transportation for the visits, and
6
drug screens. Petitioner refused transportation services, instead opting to drive himself to visits,
which he later claimed limited his ability to visit with L.M. because of the cost. In short, the DHHR
did provide petitioner limited services during the proceedings, despite the circuit court’s eventual
finding of aggravated circumstances that absolved the DHHR of making those efforts. As such,
petitioner cannot establish error.
Petitioner further relies on his assertion that a finding of aggravated circumstances was
inappropriate as a basis for his argument that the circuit court erred in finding that there was no
reasonable likelihood the conditions of abuse and neglect could be substantially corrected in the
near future. Again, however, we note that the finding of aggravated circumstances was fully
supported by the record and, accordingly, petitioner is entitled to no relief on this basis. Further,
petitioner is incorrect that the evidence did not demonstrate that there was no reasonable likelihood
that he could correct the conditions of abuse and neglect. West Virginia Code § 49-4-604(d)
provides as follows:
As used in this section, “No reasonable likelihood that conditions of neglect or
abuse can be substantially corrected” means that, based upon the evidence before
the court, the abusing adult or adults have demonstrated an inadequate capacity to
solve the problems of abuse or neglect on their own or with help. Those conditions
exist in the following circumstances, which are not exclusive[.]
The statute then goes on, over several subsections, to set forth situations in which it can be assumed
that there is no reasonable likelihood the conditions of abuse and neglect can be substantially
corrected in the near future. On appeal, petitioner focuses only on his assertion that none of these
various situations apply to him, again ignoring that the Legislature has made this list non-
exclusive. 6
Here, the evidence clearly shows that petitioner demonstrated an inadequate capacity to
solve the problems on his own or with help. As the circuit court found, petitioner showed a failure
to fully acknowledge the conditions of abuse and neglect at issue by his repeated denials of
knowledge of the abuse D.H. perpetrated. The circuit court heard testimony that petitioner
admitted to observing egregious evidence of the abuse in the home, including having seen D.H.’s
grandson restrained inside an animal crate and witnessing L.M.’s fear of D.H. result in the child
urinating and defecating in containers in her locked room rather than exposing herself to his
continued sexual abuse. Petitioner recanted these disclosures and minimized his responsibility for
the children’s safety, which he continues to do on appeal by arguing that his decision to leave L.M.
in the home after he was made aware of her sexual abuse was appropriate because there is no
evidence that she was again sexually abused after he failed to take steps to protect her.
Based on this evidence, the circuit court specifically found that petitioner’s ability to
protect the children was nonexistent, which is in keeping with this Court’s holdings regarding the
6
Petitioner is correct that the circuit court cited to several of these subsections to support
its finding that there was no reasonable likelihood the conditions of abuse and neglect could be
substantially corrected in the near future. However, given the analysis undertaken above, it is
unnecessary to address the application of these subsections to the matter on appeal.
7
impact that a failure to acknowledge issues of abuse and neglect has on the potential for
remediation. This Court has long 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 . . .
results in making the problem untreatable.” In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352,
363 (2013) (citation omitted). Given petitioner’s refusal to acknowledge the problem, it is clear
that there was sufficient evidence upon which to base a finding that there was no reasonable
likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near
future. It should also be noted that petitioner repeatedly tested positive for controlled substances
throughout the proceedings, further evidencing his refusal to put forth effort toward reunification.
While petitioner cites to the circuit court’s comments that it would not terminate his rights based
solely on drug screens showing THC, petitioner ignores the fact that he also tested positive for
other substances and that his continued abuse of THC was not ruled on in isolation but, instead,
was viewed in conjunction with his other failures below. Accordingly, petitioner is entitled to no
relief.
Finally, petitioner argues that both the circuit court and the guardian failed to consider
L.M.’s wishes to be returned to his care. The record, however, does not support this contention.
While it may be true that the guardian’s report omits petitioner by indicating L.M.’s desire to be
returned to the mother only, petitioner nonetheless cites to various points in the record when the
circuit court was presented with the child’s desire to be reunited with him. Given that petitioner
concedes that the guardian made this information known to the circuit court, we find, under the
specific circumstances of this matter, that it is inconsequential that the information was not
included in the guardian’s report.
Petitioner further argues that the circuit court erred in failing to hear from a licensed mental
health care provider as to the psychological impact termination of his parental and custodial rights
would have on L.M. In support of his argument, petitioner relies on In re Jessica G., 226 W. Va.
17, 697 S.E.2d 53 (2010), wherein this Court indicated that it was “particularly concerned with the
complete absence of any testimony at the dispositional hearing by a licensed mental health care
provider as to the possible psychological consequences to Jessica G. by terminating her father’s
parental rights.” Id. at 22, 697 S.E.2d at 58. Petitioner relies on this dictum to seemingly assert
that testimony from such a health care provider is necessary in all cases, which is simply not
accurate. In Jessica G., there was extensive evidence about the child’s strong emotional bond with
the father. Here, petitioner simply asserts that he had a strong emotional bond with the children
without any corroboration. Indeed, the two pages of the record to which petitioner cites in support
of this assertion do not contain any evidence of a strong or substantial bond. Instead, one page
indicates that L.M. said petitioner protected the children, while the other page indicates that a
supervised visitation provider did not “see[] any inappropriate behavior between [petitioner] and
the kids” and that petitioner “treats all of the kids, roughly, the same.” This is far from the evidence
in Jessica G. that resulted in the circuit court finding that there was a “strong bond between Jessica
G.” and the father therein. As such, we find that it was unnecessary for the court to hear evidence
from a licensed mental health care provider, especially considering the egregious nature of
petitioner’s conduct.
Having established that L.M.’s preference for being returned to petitioner was presented to
the circuit court, we find that there is nothing in the record to indicate that the court did not properly
8
consider this information. According to West Virginia Code § 49-4-604(c)(6)(C), “the court shall
give consideration to the wishes of a child [fourteen] years of age or older or otherwise of an age
of discretion as determined by the court regarding the permanent termination of parental rights.”
This statute does not, however, bind a circuit court to follow such wishes, especially in
circumstances such as those presented below where a parent has demonstrated a total inability to
protect the children. Based on the circuit court’s extensive findings regarding petitioner’s inability
to correct the conditions of abuse and neglect and that termination of his parental and custodial
rights was necessary for the children’s welfare, we find no error in this regard.
Further, as this Court has held,
“[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
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). Accordingly, we find no error
in the circuit court’s termination of petitioner’s parental and custodial rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 22, 2020, order is hereby affirmed.
Affirmed.
ISSUED: November 4, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
9