FILED
June 22, 2021
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re B.S. Jr., A.M.-1, and T.M.
No. 21-0104 (Berkeley County 19-JA-153, 19-JA-154, and 19-JA-155)
MEMORANDUM DECISION
Petitioner Mother A.M.-2, by counsel Christian J. Riddell, appeals the Circuit Court of
Berkeley County’s January 5, 2021, order terminating her parental rights to B.S. Jr., A.M.-1, and
T.M. 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 (“guardian”), Elizabeth Layne Diehl, filed a response on the children’s behalf in support
of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in finding
petitioner had unauthorized contact with her ex-boyfriend M.R., finding her in contempt for that
contact, denying her motion for an improvement period, 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 December of 2019, the DHHR filed a child abuse and neglect petition alleging that
petitioner failed to protect B.S. from her live-in boyfriend, M.R. The DHHR alleged that B.S.
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). Additionally, because one of the children and
petitioner share the same initials, we will refer to them as A.M.-1 and A.M.-2, respectively,
throughout the memorandum decision. Further, B.S. Jr is hereinafter referred to as B.S.
throughout the memorandum decision.
1
disclosed that M.R. grabbed him from behind and pinned him to the floor. B.S. stated that he
tried to call for help but M.R. put his hands over the child’s mouth. M.R. later put twelve-year-
old B.S. in a “choke hold and threw him back onto the floor using all his weight to pin the child
down.” The DHHR alleged that B.S. had three to four scratches on his face, which were several
inches long and a half inch wide. B.S. alleged that on another occasion, M.R. used pepper spray
in the child’s room while he was in the room. B.S. stated that he ran into the bathroom to escape,
and M.R. deployed the pepper spray under the bathroom door. Thereafter, M.R. allegedly
threatened B.S., stating that he would punch the child in the face if he told anyone about the
abuse. The DHHR alleged that B.S. had been subjected to non-accidental trauma, that petitioner
and M.R. allowed one another to commit excessive corporal punishment against B.S., and that
petitioner had knowingly allowed M.R. to physically abuse the child and failed to protect him
from harm.
Petitioner stipulated to the allegations in the petition in July of 2020, and the circuit court
adjudicated her as an abusing parent. 2 Petitioner and M.R. both testified that they had ended their
relationship and M.R. was no longer living in the family home. The guardian presented evidence
that a witness had seen M.R. at petitioner’s home and that the witness believed he was still living
in the home. Ultimately, the circuit court granted M.R.’s motion to be dismissed from the
proceedings but found that it was in the children’s best interests that petitioner and M.R. have no
further contact, and so ordered. Thereafter, petitioner moved for a post-adjudicatory
improvement period, to which the father of B.S. (B.S. Sr.) objected. According to B.S. Sr.,
petitioner had unauthorized phone contact with the child and attempted to manipulate the child’s
opinion with respect to visitation and placement. B.S. Sr. explained that the child’s behavior
drastically changed following petitioner’s unauthorized phone contact. Upon the father’s motion,
the circuit court ordered that it would interview B.S. in camera in regard to petitioner’s contact
with him during the proceedings and to understand his wishes regarding visitation with
petitioner.
The circuit court convened for a hearing on petitioner’s motion for an improvement
period in August of 2020. The DHHR and guardian advised that they had received photographs
that demonstrated a continued relationship between petitioner and M.R., in violation of the
circuit court’s no contact order. The DHHR moved to continue the hearing in order to disclose
2
Although the DHHR did not allege that petitioner or M.R. had abused A.M.-1 or T.L. in
a specific manner, these children were abused children within the meaning of the West Virginia
Code as they were children in the home at risk of abuse. This Court has held
[w]here there is clear and convincing evidence that a child has suffered
physical and/or sexual abuse while in the custody of his or her parent(s), guardian,
or custodian, another child residing in the home when the abuse took place who is
not a direct victim of the physical and/or sexual abuse but is at risk of being
abused is an abused child under [West Virginia Code § 49-1-201].
Syl. Pt. 2, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995).
2
the photograph of the vehicles to the parties and to investigate the allegations. The guardian
moved the circuit court to issue a rule to show cause why petitioner and M.R. should not be held
in contempt of the circuit court’s prior no contact order, which was granted.
Later, in August of 2020, the circuit court held a dispositional hearing and heard
testimony regarding the contempt proceeding and petitioner’s motion for an improvement period.
The guardian presented testimony that vehicles belonging to petitioner and M.R. were observed
and photographed next to each other at a local hotel. The photograph was admitted into evidence.
Petitioner and M.R. both testified that they were staying in the hotel in question for a period of
time. However, they both denied that they were aware of each other’s presence at the hotel. M.R.
testified that he had been staying at the hotel for over a month due to work in the area and
provided a receipt for his stay. Petitioner’s mother testified that she had chosen the hotel, and
petitioner took her recommendation. She further testified that she was unaware that M.R. was
staying at the hotel at the time. The circuit court found that the testimony of petitioner and M.R.
that they did not have contact while at the hotel was not credible. The circuit court noted that the
photograph depicted the parties’ vehicles side by side and that the vehicles had been backed into
the parking spaces, which the circuit court found was an attempt to hide the license plates. The
circuit court found that petitioner and M.R. had violated the court’s prior no contact order and
that their “attempt to deny their actions in this regard is an afront to [the c]ourt” and evidenced
their dishonesty during the proceedings. Based on their contact, the circuit court found petitioner
and M.R. to be in contempt of the court’s prior order.
The guardian also presented testimony from a Court Appointed Special Advocate
(“CASA”) volunteer who testified that petitioner professed to her that she was engaged to M.R.
on the same day that she filed for divorce from the father of A.M.-1 and T.M., in February of
2020. The CASA volunteer described petitioner as “boastful” about her relationship and
engagement with M.R. and described M.R. as her “rock.” The parties introduced a post from
petitioner’s Facebook page, which had been posted in February of 2020, that announced the
engagement. During her testimony, petitioner suggested that the Facebook post and engagement
was a joke and the engagement ring depicted in her Facebook post was a fake ring that she
purchased in jest. The circuit court found that, despite petitioner’s testimony to the contrary, the
engagement was “not a joke.”
Petitioner also testified regarding M.R.’s treatment of B.S., which the circuit court found
to be not credible. The court highlighted that petitioner’s testimony wavered significantly.
Notably, petitioner had previously admitted that M.R.’s physical restraint of B.S. was
inappropriate. However, during her testimony, petitioner asserted that B.S.’s therapist applauded
M.R.’s restraining of B.S. Petitioner later controverted this testimony and reiterated that M.R.’s
use of restraint was wrong and constituted excessive corporal punishment. Similarly, petitioner
asserted that the pepper spray incident was a joke, but also acknowledged that it caused harm to
B.S. The circuit court found that petitioner had “a stunning under appreciation of the harm that
has been done” to B.S.
The circuit court found that B.S.’s in camera testimony was credible and contradicted
petitioner’s testimony. In particular, B.S. testified that the first time he disagreed with M.R.,
petitioner told M.R. “that if he wanted to whip [B.S.] to go ahead.” B.S. testified that petitioner
3
had promised him video games if he told the circuit court that he wanted to live with her. B.S.
further testified that he engaged in multiple unauthorized phone calls with petitioner, which was
in contradiction to her testimony that there had been only one phone call and it was brief.
Ultimately, the circuit court cited petitioner’s dishonesty during the proceedings and her
minimization of the harm that she caused to B.S. to deny her motion for an improvement period.
The circuit court found that petitioner lacked the insight needed to be successful during an
improvement period and had not satisfied her burden to be granted an improvement period. The
circuit court further found that it was unlikely that petitioner could substantially remedy the
conditions of abuse and neglect and that termination was the least restrictive dispositional
alternative available. Accordingly, the circuit court terminated petitioner’s parental rights by its
January 5, 2021, order. This appeal followed. 3
The Court has previously held:
“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’s arguments are based entirely upon the circuit court’s alleged error
in finding that petitioner and M.R. had contact following the court’s entry of a no contact order.
She argues that the circuit court’s conclusion that the parties had contact at the hotel was against
the weight of the evidence below. In support, she highlights her own testimony, M.R.’s
testimony, and her mother’s testimony, which, in her opinion, established that the parties arrived
at the hotel without knowledge of each other and without contact during the stay. Petitioner
asserts that the circuit court simply disregarded this evidence in making its findings of fact. Upon
our review, we find no error.
3
The children’s respective fathers were nonabusing parents, and the children have
achieved permanency in the custody of their respective fathers.
4
Here, the circuit court’s findings were heavily influenced by its determination that
petitioner’s testimony lacked credibility, and we find the circuit court afforded an appropriate
weight to the evidence that petitioner emphasizes on appeal. As we have consistently held, “[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). We note that this credibility determination is supported by the contradictions
between petitioner’s testimony and that of B.S., which petitioner failed to explain below or on
appeal. In fact, petitioner makes no mention of B.S.’s testimony nor its effect on her credibility.
Petitioner ignores that she violated the circuit court’s order in regard to phone calls with B.S. and
that B.S. testified that petitioner attempted to manipulate his testimony by promising him video
games. Absent petitioner’s incredible testimony and the testimony of those who supported her
claims, the circuit court considered a photograph depicting petitioner and M.R.’s vehicles parked
side by side in a hotel parking lot and parked in such a way as to obscure their license plates.
Based on that evidence, we are not left with a definite and firm conviction that a mistake has
been committed. The circuit court’s conclusion that the parties actually had contact during their
stay at the hotel is plausible in light of the record provided, and, therefore, we find no clear error
in the circuit court’s finding that petitioner and M.R. had contact subsequent to the entry of the
circuit court’s no contact order.
Petitioner also argues that the circuit court erred in finding her in contempt based on her
violation of the court’s no contact order. Again, this argument is based entirely on the circuit
court’s alleged error in finding that the parties had contact following the entry of the court’s no
contact order. As explained to petitioner below, West Virginia Code § 61-5-26(d) permits a
circuit court to “issue attachment for contempt and punish [the accused] summarily” for
“disobedience to or resistance of . . . any lawful process, judgment, decree or order of said
court.” Based on petitioner’s continued contact with M.R., as found by the circuit court and
affirmed by this Court, we find no error in the circuit court’s summary issuance of a finding of
contempt. As we have found no error in that finding, we likewise find no error in the circuit court
finding petitioner to be in contempt of a lawful court order.
Finally, petitioner argues that the circuit court erred in denying her motion for an
improvement period and terminating her parental rights. Petitioner acknowledges that West
Virginia Code § 49-4-610(2), which governs post-adjudicatory improvement periods, requires
the parent to file “a written motion requesting an improvement period” and “demonstrate[], by
clear and convincing evidence, that [they are] likely to fully participate in the improvement
period.” It is well established that “West Virginia law allows the circuit court discretion in
deciding whether to grant a parent an improvement period.” In re M.M., 236 W. Va. 108, 115,
778 S.E.2d 338, 345 (2015); see also In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359
(2002) (holding that a circuit court has the discretion to deny a motion for an improvement
period when no improvement is likely).
Here, we agree with the circuit court that petitioner failed to meet her burden of proof to
be granted an improvement period. Most notably, the circuit court found that petitioner lacked
the insight to be successful in an improvement period based upon petitioner’s wavering opinion
as to the harm M.R. inflicted upon B.S. As this Court has held, “[i]n order to remedy the abuse
5
and/or neglect problem, the problem must first be acknowledged. Failure to acknowledge the
existence of the problem . . . 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). The circuit court’s observation that
petitioner had “a stunning under appreciation of the harm that has been done” to B.S. is
emphasized by petitioner’s apparent defense of M.R.’s restraint of the child, which she had
already admitted was excessive and caused harm to the child. As the circuit court remarked,
petitioner admitted that “she would say whatever she needed to say in order to get an
improvement period.” Petitioner, whose testimony lacked credibility and consistency regarding
her acknowledgement of the issues, did not prove by clear and convincing evidence that she was
likely to participate in an improvement period, and we find no error in the circuit court’s decision
in this regard.
This same evidence supports the termination of petitioner’s parental rights. West Virginia
Code § 49-4-604(c)(6) provides that a circuit court may terminate a parent’s parental rights upon
finding that “there is no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected in the near future” and that termination of parental rights is necessary for
the welfare of the children. West Virginia Code § 49-4-604(d) sets forth that there is no
reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the
near future when the parent has “demonstrated an inadequate capacity to solve the problems of
abuse or neglect on their own or with help.” As set forth above, petitioner’s failure to
acknowledge the conditions at issue have rendered them untreatable. This Court has found no
error in the circuit court’s determination that petitioner had failed to fully appreciate the harm
caused to B.S. Accordingly, its finding that there was no reasonable likelihood that petitioner
could correct the conditions of abuse and neglect in the near future is supported by the record.
Finally, we have 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
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). Because the record fully
supports the requisite findings, 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
January 5, 2021, order is hereby affirmed.
Affirmed.
ISSUED: June 22, 2021
6
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
7