FILED
October 1, 2021
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re J.C.
No. 21-0189 (Logan County 19-JA-68)
MEMORANDUM DECISION
Petitioner Father P.C., by counsel Mark Hobbs, appeals the Circuit Court of Logan
County’s January 22, 2021, order terminating his parental rights to J.C. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and S.L.
Evans, filed a response in support of the circuit court’s order. The guardian ad litem, J.
Christopher White, filed a response on the child’s behalf in support of the circuit court’s order.
On appeal, petitioner argues that the circuit court erred in denying his motions for an
improvement period, violating the requirements of the American with Disabilities Act, and
terminating his 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.
Prior to the instant petition, the parents were the subject of at least ten Child Protective
Services (“CPS”) investigations pertaining to domestic violence and physical abuse. 2 In 2000,
the DHHR found maltreatment “for shaking a child and failure to protect.” In addition, petitioner
was charged with two counts of domestic battery and two counts of domestic assault based on
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
Some of the DHHR’s prior investigations involve J.C.’s older siblings who are not at
issue in this appeal.
1
the findings of that investigation. The mother admitted to the domestic violence in the home,
then recanted during the investigation process. In 2007, the DHHR investigated the parents’
home based on allegations of a child “being choked” and physical markings observed on the
child’s neck, but the parents denied involvement. In 2009, the children “disclosed fear of
[petitioner]” and disclosed that they witnessed him hold a gun to the mother’s head, “pull the
trigger three separate times and on the fourth time of pulling the trigger . . . aimed the gun
towards the hillside . . . and the gun fired.” Finally, in 2018, the DHHR investigated allegations
of physical and emotional abuse in the home, but, again, the parents denied that they mistreated
the children. Throughout these proceedings, the DHHR alleged that petitioner was noncompliant
during several open CPS cases for the family.
In May of 2019, the DHHR filed a child abuse and neglect petition alleging that
petitioner and the mother exposed J.C. to domestic violence in the home. The DHHR alleged that
the investigation began due to J.C.’s excessive absence from school. During an interview with a
CPS worker, then-seven-year-old J.C. disclosed that he wanted to stay home so that he could
protect the mother from petitioner. He disclosed that petitioner “put a belt around [the mother’s]
neck” and held a knife to her throat. He stated that the mother told him about the incident and
showed him a picture. He also disclosed seeing petitioner hit the mother “real hard.” According
to the DHHR, J.C. became emotional during the interview and asked the CPS worker not to
speak to his parents because the mother told him not to tell anyone about the abuse or else she
would “be dead and [J.C.] won’t see [her] no more.” J.C. stated that petitioner had described to
the child how “[h]e will kill us. He will put us in a car and make it look like a car accident and
then, well, we will be gone.”
CPS workers contacted the parents, who both denied the allegations. However, once
alone, the mother admitted to a CPS worker that the allegations were true. She admitted that
petitioner had always been violent; he had held guns to her head, held knives to her body,
threatened to kill her, and hit her. According to the DHHR, the mother reported that she was
afraid to remain in the home and afraid of what might happen. The DHHR obtained photographs
of bruising on the mother’s neck and arm that she indicated were the result of petitioner’s violent
actions. J.C. later participated in a forensic interview, during which he provided statements
consistent with the allegations in the petition. Petitioner waived his right to a preliminary
hearing, and the circuit court ordered both parents to participate in a parental fitness evaluation.
The circuit court held an adjudicatory hearing in September of 2019. The mother filed an
answer to the petition, admitting that she had been the victim of “chronic domestic violence.”
The DHHR reported that petitioner attended his parental fitness evaluation, but he had been
“inappropriate with staff” and left before the evaluation was completed. The circuit court ordered
that the adjudicatory hearing would be continued to give petitioner an opportunity to complete
his evaluation.
In October of 2019, the circuit court learned that petitioner was involved in an
automobile accident that left him paralyzed and one other person dead. The DHHR filed an
amended petition alleging that petitioner had been charged with driving under the influence
resulting in death and driving under the influence resulting in bodily injury, both felonies.
2
The circuit court held two adjudicatory hearings in January of 2020 and July of 2020. At
the January hearing, petitioner denied the allegations contained in the petition and denied that he
had any substance abuse or alcohol abuse issues. Petitioner also moved for an improvement
period. The circuit court found it necessary to continue the adjudicatory hearing and held
petitioner’s motion for an improvement period in abeyance. At the July hearing, petitioner
admitted that he had a substance abuse and alcohol issue in the past and asserted it was no longer
an issue. He also testified that he would comply with the conditions of an improvement period if
one were granted.
However, on cross-examination, petitioner again denied J.C.’s allegations and denied any
domestic abuse in the home, other than arguing and shoving the mother on occasion. Petitioner
asserted that J.C. had lied about the allegations, that he had been “brainwashed” by the CPS
workers and by video games, and that the DHHR was attempting to ruin his marriage. Finally,
petitioner admitted that he was subject to the conditions of bond due to his criminal charges and
violated those conditions by testing positive for alcohol. The DHHR called petitioner’s parental
fitness evaluator, who was qualified as an expert in forensic psychology. She explained that
petitioner presented for an evaluation in August of 2019, but he was “very rude and very
difficult” during the assessments. Petitioner did not complete the assessments, although the
DHHR scheduled an opportunity for him to finish them. Despite petitioner failing to complete
the evaluation, the evaluator was able to form an opinion regarding his ability for parental
improvement. She explained that due to petitioner’s denial of the issues of abuse and neglect,
specifically the extreme domestic violence against the mother, and his lack of motivation to
change, her opinion was that petitioner’s capacity for parental improvement was “virtually
nonexistent.” She further explained that this prognosis was reserved for cases where “the
children are at some kind of extreme risk[,] whether it[ is] physical abuse or sexual abuse.” She
clarified that this is “the absolute worst prognosis” that her office issued.
Based on petitioner’s testimony and J.C.’s forensic interview, the circuit court found that
J.C. described multiple instances of extreme domestic violence, including petitioner threatening
the mother and child with a firearm and the incident where petitioner tied a belt around the
mother’s neck and threatened her with a knife. The circuit court also noted that the mother
admitted to the allegations in the petition and supported J.C.’s statements. The court found that,
despite petitioner’s admissions to substance and alcohol abuse, he failed to address the
allegations of domestic violence, other than admitting minimal involvement. The circuit court
concluded that J.C. was an abused and neglected child and adjudicated petitioner as an abusing
parent. It further denied petitioner’s motion for an improvement period.
The circuit court held the final dispositional hearing in December of 2020. The petitioner
moved for a post-dispositional improvement period but presented no evidence in support. The
circuit court again denied his motion for an improvement period.
The circuit court then heard evidence regarding the DHHR’s motion to terminate the
parents’ parental rights. The DHHR presented testimony from the mother’s psychological
evaluator and a DHHR worker. Ultimately, the circuit court found that “[t]here [was] no
evidence . . . [that petitioner had] meaningfully addressed the issues which led to the filing of the
petition and amended petition or that [he had] any intention of even attempting to do so.”
3
Further, the court found that there were no additional services that the DHHR could provide
petitioner to further the goal of reunification. It concluded that there was no reasonable
likelihood that the conditions of abuse and neglect could be substantially corrected in the near
future and that termination of petitioner’s parental rights was necessary for the welfare of the
child. Accordingly, the circuit court granted the DHHR’s motion to terminate petitioner’s
parental rights by its January 22, 2021, order. He now appeals that order. 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 first argues that the circuit court erred in denying his motions for an
improvement period. He “believes that his handicap is one of the reasons that he never received
an [i]mprovement [p]eriod of any kind.” Petitioner asserts that the circuit court was bound to
grant him an improvement period, “unless [it found] compelling circumstances to justify a
denial” of the motion. See Syl. Pt. 2, State ex rel. Virginia M. v. Virgil Eugene S. II, 197 W. Va.
456, 475 S.E.2d 548 (1996).
Initially, we note that petitioner’s reliance on the “compelling circumstances” standard
for denying an improvement period is misplaced. This standard was “based upon language in a
former version of [West Virginia Code § 49-4-610], prior to the 1996 amendments, which stated
that a court was to provide an improvement period unless compelling circumstances indicated
otherwise.” In re Charity H., 215 W. Va. 208, 216 n.11, 599 S.E.2d 631, 639 n.11 (2004).
However, “[w]ith the deletion of such language from the statute, the compelling circumstance
concept is no longer relevant to this Court’s investigation.” Id. The current statute requires that
the parent “demonstrate[], by clear and convincing evidence, that [he or she is] likely to fully
participate in the improvement period.” W. Va. Code § 49-4-610(2)(A). It is well established that
3
The mother’s parental rights were also terminated below. According to the parties, the
permanency plan for the child is adoption in his current placement.
4
“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).
Critically, we have previously 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) (citation omitted). Here,
petitioner failed to acknowledge the extreme domestic violence in the home, and he does not
even address the gravity of this failure on appeal. The circuit court referenced J.C.’s forensic
interview where he described the extreme domestic violence in the home, which included
petitioner threatening the mother and J.C. with a firearm and the incident where petitioner tied a
belt around the mother’s neck and threatened her with a knife. Furthermore, J.C.’s statements
were supported by the mother’s admissions to the petition. The circuit court found that J.C. was
an abused child based upon this evidence, and petitioner did not accept any responsibility for
these acts. Accordingly, it is clear to this Court that the circuit court did not err in denying either
of petitioner’s motions for improvement periods as an improvement period would have been an
exercise in futility and not in the best interest of the child.
Next, we find that the circuit court did not violate the Americans with Disabilities Act
(“ADA”) in denying petitioner’s motions for an improvement period. The ADA provides that
“no qualified individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a public entity,
or be subject to discrimination by any such entity.” 42 U.S.C. § 12132. Petitioner argues that he
“was simply denied the consideration of decency” and that he found it “odd that the [DHHR]
was aware of his alcohol problem and his paralysis but did nothing to help.” 4 Again, petitioner
4
In addition to his paralysis, petitioner argues that his diagnosis of “unspecified
personality disordered with antisocial features,” made by the DHHR’s forensic psychologist
during the proceedings, is a “mental disorder” that would provide him protection under the
Americans with Disabilities Act (“ADA”). 42 U.S.C. §§ 12101 – 12213. However, petitioner
fails to explain how this alleged mental impairment “substantially limits one or more major life
activities.” Moreover, petitioner fails to cite to the record where this argument was raised before
the circuit court. “‘Our general rule is that nonjurisdictional questions . . . raised for the first time
on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n.
20, 524 S.E.2d 688, 704 n. 20 (1999).” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va.
(continued . . . )
5
ignores the fact that he denied the circuit court’s finding that J.C. was an abused child based
upon the extreme domestic violence in the home. Petitioner cites to nothing in the record that
shows he was denied an improvement period “by reason of [his] disability.” Petitioner’s plea on
appeal to “give him a chance to redeem himself” avails no one when he had not acknowledged
the extreme domestic violence in the home which, by this Court’s prior holdings, rendered
treatment of that problem impossible. Upon our review, petitioner was treated in the same
manner as all parents who fail to acknowledge the conditions of abuse and neglect. Accordingly,
we find no merit to petitioner’s argument.
Finally, we conclude in finding that the circuit court did not err in terminating petitioner’s
parental rights. Pursuant to West Virginia Code § 49-4-604(c)(6), circuit courts may terminate
parental rights upon finding that there is no reasonable likelihood that the conditions of abuse
and neglect could be substantially corrected in the near future and that termination is necessary
for the child’s welfare. See also Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55
(2011) (holding that termination of parental rights, “the most drastic remedy” in abuse and
neglect cases, may be employed “when it is found that there is no reasonable likelihood . . . that
conditions of neglect or abuse can be substantially corrected”). Pursuant to West Virginia Code §
49-4-604(d), “‘[n]o 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.” In this case, the court’s findings are fully supported by petitioner’s failure to
acknowledge the conditions of abuse and neglect as he was unable to solve these problems
without acknowledging them. Accordingly, the circuit court did not err in terminating
petitioner’s parental rights as there was no reasonable likelihood that he could correct the
conditions of abuse and neglect in the near future.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 22, 2021, order is hereby affirmed.
Affirmed.
ISSUED: October 1, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
818, 821, 679 S.E.2d 650, 653 (2009). Accordingly, we will not consider this argument on
appeal.
6