                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS                                 FILED
                                                                                 June 21, 2016
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
In re: A.W.-1, M.W., and S.F.                                                       OF WEST VIRGINIA


No. 16-0141 (Kanawha County 15-JA-103, 15-JA-104, and 15-JA-105)



                               MEMORANDUM DECISION

        Petitioner Mother A.W., by counsel Shawn D. Bayliss, appeals the Circuit Court of
Kanawha County’s January 12, 2016, order terminating her parental rights to A.W.-11, M.W.,
and S.F.2 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
S.L. Evans, filed its response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Erica Lord, filed a response on behalf of the children supporting the circuit court’s
order. On appeal, petitioner argues that the circuit court erred in (1) finding that petitioner abused
and neglected her children, (2) denying her request for a post-dispositional improvement period,
and (3) denying her post-termination visitation.3

        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.




       1
         Because petitioner and one of the minor children share the same initials, we will refer to
the child as A.W.-1 throughout this memorandum decision.
       2
         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).
       3
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.


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        In April of 2015, the DHHR filed an abuse and neglect petition alleging that petitioner
abused A.W.-1, M.W., and S.F.4 The DHHR alleged that A.W.-1, then fifteen years old,
disclosed that petitioner’s live-in boyfriend sexually abused her by forcing her to engage in oral,
vaginal, and anal sex. The child further indicated that petitioner’s boyfriend told her that he
sexually abused her because petitioner “wouldn’t give him any,” and warned her not to report the
abuse. A.W.-1 also disclosed that she had been previously sexually abused by her biological
father, an unknown male, her step-uncle, and petitioner’s boyfriend’s son. The DHHR noted that
A.W.-1 received treatment at River Park Hospital as a result of her previous disclosures and self-
injurious behaviors. Later, the DHHR filed an amended petition that further alleged that
petitioner was aware of her boyfriend’s sexual abuse of A.W.-1, did nothing to prevent it, and
failed to protect A.W.-1 from the abuse. The DHHR also alleged that petitioner did not believe
A.W.-1’s disclosures of sexual abuse, frequently discussed her sex life in the presence of her
children, and told law enforcement investigators that her boyfriend did not sexually abuse A.W.­
1 because “he does not like anal.”

        In May of 2015, the circuit court held a preliminary hearing wherein it heard the
testimony of Maureen Runyon, forensic interviewer at the Child Advocacy Center, and received
the reports from her interview with A.W.-1 Ms. Runyon testified that A.W.-1 disclosed to her
that petitioner’s boyfriend sexually abused her on two occasions and all of the children were
performing sex acts on each other. She also testified that A.W.-1 told her that petitioner did not
believe that her boyfriend sexually abused A.W.-1 because petitioner told A.W.-1 that she “knew
where everybody was” on those occasions. Petitioner’s boyfriend also testified and denied the
allegations. However, petitioner and the boyfriend both testified that they knew the children were
performing sex acts on each other and did nothing to stop it.

         After hearing the testimony, the circuit court found probable cause to believe that the
children were abused or neglected, petitioner’s home was not safe, and there was no reasonable
alternative to removal of the children. The circuit court ordered the children’s removal and that
petitioner undergo a psychological evaluation. The circuit court granted petitioner supervised
visitation with A.W.-1, M.W., and S.F. and granted the boyfriend supervised visitation with S.F.
In June of 2015, the guardian moved the circuit court to suspend the boyfriend’s visitation with
his daughter, S.F., based upon inappropriate behaviors between the boyfriend and S.F. According
to the guardian’s motion, the visitation supervisor noted that the boyfriend and S.F. “barely
converse” but rather S.F. “lies on top of her father or between his legs while his arm is wrapped
around [S.F.’s] chest area.” The supervisor further noted that S.F. and her father were “very
physical, hugging and kissing.” The DHHR’s family assessment report noted that the boyfriend
continued to ask if his visits with S.F. had to be supervised and he only wanted to visit his
daughter, S.F., but not his son.

        In August of 2015, the circuit court held an adjudicatory hearing wherein it incorporated
the evidence from the preliminary hearing into the adjudicatory record. Additionally, the circuit
court heard testimony from a forensic psychologist who performed a parental fitness exam on the
boyfriend. At the close of the hearing, the circuit court found, by clear and convincing evidence,

       4
           Petitioner’s boyfriend, D.F., is the biological father of S.F.


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that petitioner was an abusing parent. The circuit court terminated both petitioner’s and the
boyfriend’s supervised visitation of the subject children.

        In November of 2015, the circuit court held a dispositional hearing wherein it heard the
testimony of a DHHR worker. The worker testified that before petitioner’s visitation was
terminated, she permitted the boyfriend to visit the children in violation of the circuit court’s
order and stopped A.W.-1’s therapy. Petitioner testified that she continued to live with her
boyfriend. Following the presentation of the evidence, the circuit court found that petitioner
failed to protect her children from sexual abuse and that the boyfriend sexually abused A.W.-1.
The circuit court also found that there was no reasonable likelihood that the conditions of abuse
and neglect could be substantially corrected in the near future and that terminating petitioner’s
parental rights was in the children’s best interests. The circuit court denied petitioner’s motion
for post-termination visitation and terminated petitioner’s parental rights to the children by order
dated January 12, 2016. It is from this order that petitioner now appeals.

       This 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).

       On appeal, petitioner argues that the DHHR based its entire case upon the testimony of
Maureen Runyon and that the evidence did not prove that petitioner failed to protect her children
from sexual abuse. In support of her argument, petitioner contends that she presented A.W.-1 to
the Child Advocacy Center for an interview after she was made aware of the sexual abuse. The
Court, however, finds no error in adjudication below.

        According to West Virginia Code § 49-1-201(A), an abused child is one whose “health or
welfare is harmed or threatened by [a] parent, guardian or custodian who knowingly or
intentionally inflicts, attempts to inflict or knowingly allows another person to inflict, physical
injury or mental or emotional injury, upon the child or another child in the home.” We have also
explained that




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                “W.Va. Code [§] [49-4-601(2)], requires the [DHHR], in a child abuse or
       neglect case, to prove ‘conditions existing at the time of the filing of the petition .
       . . by clear and convincing [evidence].’ The statute, however, does not specify any
       particular manner or mode of testimony or evidence by which the [DHHR] is
       obligated to meet this burden.” Syllabus Point 1, In Interest of S.C., 168 W.Va.
       366, 284 S.E.2d 867 (1981).

Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (internal citations omitted).

        Upon our review, we find that the record demonstrates that the circuit court was
presented with ample evidence of petitioner’s abuse. Maureen Runyon testified that A.W.-1
disclosed to her that petitioner’s boyfriend sexually abused her on two occasions and the children
were performing sex acts on each other. She also testified that A.W.-1 told her that petitioner did
not believe that her boyfriend sexually abused A.W.-1 because petitioner told A.W.-1 that she
“knew where everybody was” on those occasions. Ms. Runyon testified that A.W.-1 also
disclosed to her that she had been previously sexually abused by her biological father, another
male, her step-uncle, and petitioner’s boyfriend’s son, all while in petitioner’s custody.
Importantly, petitioner admitted that she knew the children were performing sex acts on each
other and did nothing to stop it. Based upon the record, there was sufficient evidence that
petitioner abused and neglected the children.

        Next, petitioner argues that the circuit court erred in terminating her parental rights
instead of granting her an improvement period as disposition. West Virginia Code § 49-4-610
provides circuit courts with discretion in granting improvement periods upon a showing, by clear
and convincing evidence, that the parent is likely to fully participate in such an improvement
period. In petitioner’s case, she failed to satisfy this burden. While petitioner complains that the
DHHR should have been required to make reasonable efforts to preserve her family unit, the
evidence clearly indicates that she failed to prove that she was likely to participate in an
improvement period.

       We have held that, because abuse and neglect proceedings are remedial in nature,

       [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) (quoting In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). It is clear from the record that petitioner failed to
acknowledge any problem that services or an improvement period could correct. Instead of
protecting her children, petitioner protected her boyfriend by maintaining that A.W.-1 was lying
or dreaming about being sexually abused. According to the record, A.W.-1 was previously
sexually abused by four other men while in petitioner’s custody and at least two of those
perpetrators are incarcerated as a result. Despite petitioner’s knowledge of these incidents, she

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continued to live with a fifth man accused of sexually abusing A.W.-1. Based upon the
circumstances before it, the circuit court found that there was no evidence that petitioner would
meaningfully participate in an improvement period. Thus, the circuit court correctly denied
petitioner’s motion for an improvement period.

       Next, petitioner contends that the circuit court erred in terminating her parental rights
when there were less restrictive dispositions available. However, upon our review of the record,
we see no less restrictive disposition available in her case. Specifically, the circuit court was
presented with sufficient evidence to find that there was no reasonable likelihood that petitioner
could substantially correct the conditions of abuse and neglect in the near future. Pursuant to
West Virginia Code § 49-4-604(c)(3), there is no reasonable likelihood that the conditions of
neglect or abuse can be substantially corrected when

       “[t]he abusing parent or parents have not responded to or followed through with a
       reasonable family case plan or other rehabilitative efforts of social, medical,
       mental health or other rehabilitative agencies designed to reduce or prevent the
       abuse or neglect of the child, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child.

Petitioner’s complete unwillingness to acknowledge A.W.-1’s abuse provided the circuit court
with sufficient grounds for its finding that the conditions of neglect or abuse could not
substantially be corrected. Further, the circuit court found termination of petitioner’s parental
rights was in the children’s best interests. In accordance with West Virginia Code § 49-4­
604(b)(6), upon such findings, circuit courts are directed to terminate a parent’s parental rights.
Therefore, considering the evidence before it, the circuit court correctly terminated petitioner’s
parental rights.

       Finally, petitioner argues that the circuit court erred in denying her motion for post-
termination visitation with the children. The Court, however, finds no error in this regard. We
have previously held as follows:

                “When parental rights are terminated due to neglect or abuse, the circuit
       court may nevertheless in appropriate cases consider whether continued visitation
       or other contact with the abusing parent is in the best interest of the child. Among
       other things, the circuit court should consider whether a close emotional bond has
       been established between parent and child and the child’s wishes, if he or she is of
       appropriate maturity to make such request. The evidence must indicate that such
       visitation or continued contact would not be detrimental to the child’s well being
       and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
       446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002).

         According to petitioner, the circuit court should have allowed her post-termination
visitation because of the close bond between her and the children. She further argues that
supervised visitation could be implemented to protect the children from any inappropriate actions

                                                5


on her part. The Court, however, does not agree. According to the record, petitioner permitted
the boyfriend to visit the children in violation of the circuit court’s order and stopped A.W.-1’s
therapy. More importantly, the record shows that, despite petitioner’s knowledge that A.W.-1
had been previously sexually abused, she continued to deny the current allegations and lived
with another man accused of sexually abusing A.W.-1. As such, it is clear that even supervised
visitation with petitioner was inappropriate, as she previously behaved in a way that is
detrimental to the children’s well-being. For these reasons, we find no error in the circuit court
denying petitioner post-termination visitation because the same is clearly not in the children’s
best interests.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 12, 2016, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: June 21, 2016


CONCURRED IN BY:

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




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