                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                    FILED
In Re: W.R. & C.R.                                                                 April 28, 2014
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
No. 13-0991 (Fayette County 12-JA-109 & 12-JA-110)                              OF WEST VIRGINIA




                                 MEMORANDUM DECISION

         Petitioner Father, by counsel David S. Hart, appeals the Circuit Court of Fayette County’s
September 3, 2013, order terminating his parental rights to W.R. and C.R.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Angela Alexander Walters,
filed its response in support of the circuit court’s order. The guardian ad litem, Thomas A. Rist,
filed a response on behalf of the children supporting the circuit court’s order. On appeal,
petitioner alleges that the circuit court violated his due process rights by terminating his parental
rights upon insufficient evidence.

        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 2012, the DHHR and the mother filed a co-petition for abuse and neglect
against petitioner, alleging domestic violence. The petition specifically stated that on October 15,
2012, petitioner hit the mother in front of the children and shoved one of the children, B.S. The
mother called the police and requested a restraining order. The petition further stated that on
October 22, 2012, a Child Advocacy Center interview was conducted with all the children. B.S.,
then eleven years old, disclosed that petitioner threw the mother on the couch, drew back his fist,
and stated “I’ll show you what real abuse is.” B.S. stated that he yelled at petitioner, who then
shoved him into a cabinet. B.S. stated that the children were scared and that this was not the first
incident of domestic violence in the home. B.S. also told the interviewer about an incident in
which petitioner’s father choked the mother and petitioner did nothing to protect her. W.R., then
nine years old, corroborated B.S.’s version of the incident and also had a bruise on his upper left
arm where he said petitioner grabbed him. C.R., then seven years old, also corroborated these
facts and disclosed that petitioner had whipped her in the past, leaving bruises. The petition
further referenced prior abuse and neglect proceedings against petitioner in 2007 and 2011 for
other incidents of domestic violence.2

       1
          The proceedings below concerned a third child, B.S., who is not petitioner’s biological
child and is, accordingly, not also a subject of this appeal.
        2
          The prior abuse and neglect petitions against petitioner were eventually dismissed
following DHHR services provided to petitioner.
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        In May of 2013, the circuit court held an adjudicatory hearing during which petitioner
refused to testify. However, the circuit court heard testimony from the mother and reviewed
videos of the children’s statements, after which it found that the children were abused. In August
of 2013, the circuit court held a dispositional hearing during which petitioner again refused to
testify and no evidence was presented on his behalf. The circuit court then terminated
petitioner’s parental rights. 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
       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). Upon our review, the Court finds
no error in the circuit court terminating petitioner’s parental rights. Contrary to petitioner’s
argument that there was insufficient evidence upon which to base termination, the record is
replete with evidence supporting the circuit court’s decision. During the adjudicatory hearing, the
circuit court heard testimony from the mother who was also one of the victims of petitioner’s
domestic violence. The circuit court also reviewed video of the children’s statements concerning
their abuse and the domestic violence they witnessed. Further, during the entire pendency of this
case, petitioner refused to testify regarding these allegations.

       We have previously held that

              “[b]ecause 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 during the course of an abuse and neglect proceeding, a lower court may
       properly consider that individual’s silence as affirmative evidence of that
       individual’s culpability.” Syl. pt. 2, West Virginia Dept. of Health and Human
       Resources ex rel. Wright v. Doris S., 197 W.Va. 489, 475 S.E.2d 865 (1996).

Syl. Pt. 3, In re Marley M., 231 W.Va. 534, 745 S.E.2d 572 (2013). Based upon this holding, it is
clear that the circuit court properly considered petitioner’s silence as evidence of his culpability.
Therefore, not only was the circuit court presented with sufficient evidence of petitioner’s
perpetration of domestic violence against the children and the mother, but petitioner failed to

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refute the same. In doing so, petitioner allowed the circuit court to consider his silence as
affirmative evidence of his culpability.

        In terminating petitioner’s parental rights, the circuit court noted that he had been the
subject of three abuse and neglect petitions alleging domestic violence since 2007 and that,
despite services in the prior cases, the domestic violence issues remain unabated. Further, it is
important to note that the multidisciplinary team (“MDT”) informed the circuit court through a
status report from May 17, 2013, that “[petitioner] continues to believe the allegations in the
petition are not true . . . .”

        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 . . . results in making
the problem untreatable . . . .” In re Timber M., 231 W.Va. 44, --, 743 S.E.2d 352, 363 (2013)
(quoting In re: Charity H., 215 W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Additionally,
pursuant to West Virginia Code § 49-6-5(b)(3), a parent’s failure to “respond[] to or follow[]
through with a reasonable family case plan or other rehabilitative efforts . . .” to resolve the issue
of abuse or neglect constitutes a situation in which there is no reasonable likelihood that the
conditions of abuse or neglect can be substantially corrected in the near future.

        As such, it is clear that the circuit court was presented with substantial evidence upon
which to make this finding, as well as the finding that termination was necessary for the
children’s welfare, based upon all the evidence, including petitioner’s own failure to
acknowledge the underlying issue of abuse. Pursuant to West Virginia Code § 49-6-5(a)(6),
circuit courts are directed to terminate parental rights upon such findings.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
September 3, 2013, order is hereby affirmed.


                                                                                           Affirmed.

ISSUED: April 28, 2014


CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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