FILED
January 12, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re A.T., M.W., A.W., and S.W.
No. 21-0345 (Jackson County 20-JA-56, 20-JA-57, 20-JA-58, and 20-JA-59)
MEMORANDUM DECISION
Petitioner Father J.W. III, by counsel Mark Plants, appeals the Circuit Court of Jackson
County’s April 8, 2021, order terminating his parental rights to A.T., M.W., A.W., and S.W.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick
Morrisey and Mindy M. Parsley, filed a response in support of the circuit court’s order. The
guardian ad litem, Erica Lord, filed a response on behalf of the children also in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in adjudicating him
as an abusing parent and terminating 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,
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’s brief was filed in accordance with Rule 10(c)(10)(b) of the West Virginia
Rules of Appellate Procedure, which provides that
[i]n extraordinary circumstances, if counsel is ethically compelled to disassociate
from the contentions presented in the brief, counsel must preface the brief with a
statement that the brief is filed pursuant to Rule 10(c)(10)(b). Counsel should not
inject disclaimers or argue against the client’s interests. If counsel is ethically
compelled to disassociate from any assignments of error that the client wishes to
raise on appeal, counsel must file a motion requesting leave for the client to file a
pro se supplemental brief raising those assignments of error that the client wishes
to raise but that counsel does not have a good faith belief are reasonable and
warranted.
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a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
In May of 2020, the DHHR filed a child abuse and neglect petition against petitioner
alleging that he exposed the children to domestic violence within the home; abused alcohol;
inflicted emotional abuse upon the children; and failed to provide the children with proper food,
clothing, shelter, and medical care.
After numerous continuances attributable to petitioner, the circuit court held an
adjudicatory hearing in February of 2021. The DHHR presented the testimony of several
witnesses, and the circuit court took judicial notice of the prior in camera testimony of the children
A.W. and S.W. Petitioner testified on his own behalf. The circuit court found that petitioner
exposed the children to domestic violence and emotional abuse, failed to provide for them, and
that petitioner’s alcohol abuse impaired his parenting skills to such a degree as to pose imminent
risk to the health, safety, and welfare of the children. Accordingly, the circuit court adjudicated
petitioner as an abusing parent.
The circuit court held a dispositional hearing in March of 2021. A Child Protective Services
(“CPS”) worker testified that the DHHR did not offer petitioner any services during the
proceedings because he did “not see[] that he did anything wrong.” The circuit court noted that
this testimony was consistent with petitioner’s testimony during the adjudicatory hearing in which
he refused to acknowledge any faults or issues with his parenting. In fact, petitioner claimed that
the witnesses testifying against him were lying and that his children were fabricating the
allegations against him. B.B., who maintained custody of the children since their removal, testified
that, when asked whether they desired to visit with petitioner, the children repeatedly and
unequivocally said “no.” The circuit court noted that B.B.’s testimony was supported by the in
camera testimony provided by A.W. and S.W., in which the children expressed that they did not
desire to have any contact with petitioner. Petitioner testified on his own behalf, maintaining that
he was wrongly adjudicated and had done nothing wrong. Petitioner asserted that he was a good
father but was simply a little “strict.” Finally, petitioner reasserted his claim that the children were
fabricating the allegations against him.
Ultimately, the circuit court found that there was no reasonable likelihood that the
conditions of abuse and neglect could be corrected in the near future and that termination was
necessary for the children’s welfare. The circuit court noted that petitioner consistently refused to
admit that he engaged in any conduct that could be interpreted as abuse or neglect and attempted
to paint himself in a favorable light in spite of the contrary evidence. The circuit court found that
petitioner was completely unwilling to acknowledge any fault on his part and put forth little to no
effort to seek treatment for the conditions of abuse or neglect raised in the petition. Because
petitioner failed to acknowledge any real faults in his behavior, the circuit court concluded that
petitioner possessed an inadequate capacity to solve the problems of abuse and neglect.
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Accordingly, the circuit court terminated petitioner’s parental rights. Petitioner appeals the circuit
court’s April 8, 2021, dispositional order.3
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 argues that the circuit court erred in adjudicating him as an abusing
parent and terminating his parental rights. Petitioner contends that the DHHR failed to present
clear and convincing evidence that he abused and neglected the children. According to petitioner,
his testimony directly disputed the testimony of the DHHR’s witnesses, and the circuit court
inappropriately gave significant weight to the DHHR’s witnesses. Petitioner states that he
acknowledged his need for counseling and was strict with the children due to his status as a war
veteran. Petitioner further argues that he acknowledged his failure as a parent and was willing to
accept services, make improvements, and attend counseling.
We find petitioner’s arguments to be without merit. We have previously held that,
[a]t 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). Further, we have 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
3
The mother of A.W. and S.W. voluntarily relinquished her parental rights during the
proceedings below. A.T.’s mother’s parental rights were previously terminated in 2017. The
children were placed with a relative, and the permanency plan is adoption with that relative.
M.W.’s mother was deemed a nonabusing parent, and the permanency plan for M.W. is to remain
in her mother’s care.
3
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). Additionally, pursuant to West
Virginia Code § 49-1-201, a “neglected child” is a child whose
physical or mental health is harmed or threatened by a present refusal, failure or
inability of the child’s parent, guardian, or custodian to supply the child with
necessary food, clothing, shelter, supervision, medical care, or education, when that
refusal, failure, or inability is not due primarily to a lack of financial means on the
part of the parent, guardian, or custodian.
After hearing the testimony of several witnesses, including two of petitioner’s four
children, the circuit court determined that petitioner exposed the children to domestic violence,
failed to provide for them, and abused alcohol to such a degree that it impaired his parenting skills
and posed a risk to the health, safety, and welfare of the children. While petitioner contends that
his testimony directly contradicted the testimony of the DHHR’s witnesses and was more credible,
we note that the circuit court heard the evidence and was best able to assess its credibility. On
appeal, we decline to disturb the court’s credibility determination with regard to this testimony.
See 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, petitioner fails to demonstrate that the circuit court’s findings are
erroneous, and, therefore, we find no error in the circuit court’s adjudication of petitioner as an
abusing parent.
We likewise find no error in the circuit court’s termination of petitioner’s parental rights.
West Virginia Code § 49-4-604(c)(6) provides that circuit courts are to terminate parental,
custodial, and guardianship 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 is necessary for the children’s welfare. West Virginia Code § 49-4-604(d) provides
that a circuit court may find that there is no reasonable likelihood that the conditions of abuse and
neglect can be substantially corrected when the abusing parent has “demonstrated an inadequate
capacity to solve the problems of abuse or neglect on [his or her] own or with help.”
The record establishes that petitioner demonstrated an inadequate capacity to solve the
problems of abuse or neglect on his own or with help. Specifically, petitioner failed to
acknowledge the conditions of abuse and neglect. The circuit court found that petitioner
consistently maintained that he did not engage in any conduct constituting abuse and neglect and
attempted to paint himself in a favorable light throughout the proceedings. Further, petitioner
accused the children of fabricating the allegations against him and accused the DHHR’s witnesses
of lying, demonstrating that he was completely unwilling to acknowledge any fault. Petitioner put
forth little to no effort to address his behavior during the proceedings given his adamant refusal to
acknowledge that he had done anything wrong. We have previously explained 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
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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.
In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted). Given
petitioner’s failure to acknowledge the truth of the allegations pertaining to his abuse and neglect
of the children, the conditions of abuse and neglect were untreatable, and the circuit court properly
found that petitioner demonstrated an inadequate capacity to solve the conditions of abuse and
neglect on his own or with help. Further, 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 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). The evidence set forth above
demonstrates that there was no reasonable likelihood that petitioner could correct the conditions
of abuse and neglect in the near future and that termination of his parental rights was necessary for
the children’s welfare. Consequently, we find no error in the circuit court’s decision to terminate
petitioner’s rights to the children.
For the foregoing reasons, we find no error in the decision of the circuit court, and its April
8, 2021, order is hereby affirmed.
Affirmed.
ISSUED: January 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
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