                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

                                                                                   FILED
In Re: W.E.                                                                  September 21, 2015
                                                                               released at 3:00 p.m.
                                                                             RORY L. PERRY II, CLERK
No. 15-0183 (Webster County 13-JA-38)                                      SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Father W.E.-2, by counsel Timothy V. Gentilozzi, appeals the Circuit Court of
Webster County’s October 06, 2014, order terminating his parental rights to W.E.-11, a six year
old child. 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”), Jamella Lockwood, filed a response on behalf of the child also in support of
the circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying his
petition for an improvement period and in 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, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       On June 04, 2013, the West Virginia State Police interviewed petitioner regarding the
sexual abuse of his child, W.E.-1 Petitioner gave a written statement admitting that he
masturbated while the child was in bed with him and that he touched the child’s penis. On June
06, 2013, petitioner was arrested on one count of first-degree sexual abuse. That same day, the
DHHR filed an abuse and neglect petition alleging that petitioner sexually abused W.E.-1
        At petitioner’s, June 18, 2013, preliminary hearing was held and the circuit court found
that imminent danger existed to the child, W.E. The circuit court removed the child from
petitioner’s care and an adjudicatory hearing was scheduled. Prior to the adjudicatory hearing,
petitioner filed a motion for an improvement period, and the parties appeared for a
multidisciplinary team (“MDT”) meeting.

       1
       The minor child and the petitioner father in this case have the same initials. The initials
“W.E.-1” denote the minor child and the initials “W.E.-2” denote the petitioner father.
       2
         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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        Following the MDT meeting on July 10, 2013, the parties appeared for the adjudicatory
hearing. Petitioner denied the allegations against him, and claimed that he was physically
assaulted by the police prior to giving the recorded statement. The circuit court found petitioner’s
testimony of the alleged assault to be “not credible”. The circuit court adjudicated W.E. an
abused and neglected child.
       Petitioner took the stand at his September 05, 2013, dispositional hearing, and after brief
questioning, asserted his Fifth Amendment right against self-incrimination. Following the
hearing, the circuit court entered a dispositional order finding (1) that petitioner denied the acts
of sexual abuse, and (2) that the child wanted no contact with petitioner. The circuit court asked
for additional information from the DHHR to aid in making a decision and ordered petitioner to
undergo a forensic psychological evaluation. Petitioner underwent a forensic psychological
evaluation at Saar Psychological Group. Following this dispositional hearing, petitioner’s
counsel withdrew and new counsel was appointed and the dispositional hearing was continued.
        On October 02, 2013, petitioner completed psychological testing. The report indicated
that petitioner and W.E. likely did not have a close relationship. The report also indicated that
petitioner had misrepresented himself in the interview, that there was no evidence that petitioner
had been physically assaulted prior to his booking photograph, and that his original confession of
abuse was likely closer to the truth than petitioner’s current statements. The report also indicated
that petitioner’s current prognosis for parenting was poor. On October 5, 2013, the circuit court
entered an amended dispositional order in which it again found that petitioner denied he
committed the acts of sexual abuse and that the child then four years old, wanted no contact with
petitioner. The circuit court found no reasonable likelihood that petitioner could substantially
correct the circumstances of abuse and neglect in the foreseeable future, and that the DHHR was
not required to use reasonable efforts to preserve the family because of the aggravated
circumstances of sexual abuse. Petitioner’s parental rights were terminated by order dated the
same day. It is from this 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).




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Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). On appeal, petitioner alleges that
the circuit court erred in terminating his parental rights because it was not in the best interests of
the child.

        We have previously stated that “[t]hough constitutionally protected, the right of the
natural parent to the custody of minor children is not absolute and it may be limited or
terminated by the State, as parens patriae, if the parent is proved unfit to be entrusted with child
care.” Syl. Pt. 5, In the Matter of Ronald Lee Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).
        Further, West Virginia Code § 49-6-5 provides that termination may be employed
without the use of less restrictive alternatives when it is found that there is no reasonable
likelihood that conditions of neglect or abuse can be substantially corrected. Syl. Pt. 2, In re
Dejah Rose P., 216 W.Va. 514, 607 S.E.2d 843 (2004). We have also maintained that the phrase
“no reasonable likelihood that conditions of neglect or abuse can be substantially corrected” is
defined as meaning that “based upon the evidence before the court, the abusing adult or adults
have demonstrated an inadequate capacity to solve the problems of abuse and neglect on their
own or with help.” In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873. Additionally, we have held that
a respondent parent is not unconditionally entitled to an improvement period. In re Charity H.,
215 W.Va. 208, 599 S.E.2d 631(2004). In Charity, we noted “that entitlement to an improvement
period is conditional upon the ability of the parent/respondent to demonstrate ‘by clear and
convincing evidence that the respondent is likely to fully participate in the improvement
period.’” Id. Where an improvement period would jeopardize the best interests of the child, the
improvement period will not be granted. Id. at 216, 599 S.E.2d at 639.
        In the instant case, the circuit court properly terminated petitioner’s rights to his child
where it determined that petitioner committed sexual abuse of his child. Specifically, the circuit
court found that there was no reasonable likelihood that the conditions of abuse and neglect
could be substantially corrected in the near future. The circuit court’s findings were based on the
fact that petitioner recanted his statement to police despite the fact that he provided both written
and recorded statements to police that he inappropriately touched his son. Therefore, petitioner
never took responsibility for the abuse and, in fact, denied the abuse occurred. According to our
prior holdings, petitioner is not entitled to an improvement period if he does not admit any
wrongdoing. See In re Kaitlyn P., 225 W.Va. 123, 690 S.E.2d 131 (2010). As such, petitioner’s
denial of abuse left the circuit court no choice but to terminate his parental rights.
        Further, contrary to petitioner’s argument that a strong bond existed with his child, the
child claimed that he did not wish to see or have contact with petitioner. The child’s guardian
recommended that petitioner not have any further contact with the child. Even the psychologist
who performed petitioner’s psychological evaluation indicated that it was not in the child’s best
interest to have contact with petitioner and that if petitioner was convicted he should have no
further contact with his child. As such, it is clear that termination of petitioner’s parental rights
was in the best interests of the child.
       For the foregoing reasons, we find no error in the circuit court’s October 6, 2014, order,
and we hereby affirm the same.


                                                                                           Affirmed.
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ISSUED: September 21, 2015

CONCURRED IN BY:

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




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