                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS                                 FILED
                                                                                 April 12, 2016
In re: M.Z.-1, M.Z.-2, M.Z.-3, and M.Z.-4                                        RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
No. 15-0818 (Kanawha County 13-JA-13, 13-JA-14, 13-JA-15, & 13-JA-16)


                              MEMORANDUM DECISION
        Petitioner Father M.Z.-5, by counsel Kenneth R. Starcher, appeals the Circuit Court of
Kanawha County’s December 17, 2014, order terminating his parental rights to M.Z.-1, M.Z.-2,
M.Z.-3, and M.Z.-4.1 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, W. Jesse Forbes, filed a response on behalf of the children also in support of
the circuit court’s order. On appeal, petitioner alleges that the circuit court erred in terminating
his parental rights without requiring that the DHHR seek reunification of the family and without
the guardian preparing a written report. Petitioner additionally alleges ineffective assistance of
his counsel below.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.

        In January of 2013, the DHHR filed an abuse and neglect petition against the parents and
alleged that two children, M.Z.-1 and M.Z.-2, disclosed to a counselor that petitioner locked
them in a closet for hours at a time. This disclosure was confirmed by their sister, M.Z.-3.
Additionally, M.Z.-2 disclosed that petitioner would punish the children by putting them in the
bathroom with pictures of “scary monster faces” on the floor and then locking the children inside
with the lights turned off. The petition further alleged that petitioner made threats against the
children’s counselor, including that he would make her disappear. The petition also alleged that
petitioner previously made threats against a different counselor at the children’s school and that

       1
        Because the children and petitioner share the same initials, we will refer to the children
as M.Z.-1, M.Z.-2, M.Z.-3, and M.Z.-4, respectively, and to petitioner as M.Z.-5 throughout the
memorandum decision.
       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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law enforcement intervention was required. Additionally, the DHHR addressed other
inappropriate forms of punishment in the home and the children’s lack of hygiene in the petition.
At the subsequent preliminary hearing, the DHHR advised that it would offer petitioner services,
including supervised visitation, parenting and adult life skills education, and a parental fitness
evaluation.

         During an adjudicatory hearing in April of 2013, petitioner stipulated to abuse and
neglect. Specifically, petitioner stipulated to excessive means of discipline. Petitioner moved the
circuit court for a post-adjudicatory improvement period, which the circuit court granted. In
December of 2014, the circuit court held a dispositional hearing, during which the psychiatrist
that evaluated three of the children testified that reunification with petitioner was not in the
children’s best interests. Specifically, the evidence established that the children suffered from
Post-Traumatic Stress Disorder (“PTSD”) as a result of petitioner’s abuse, and the psychiatrist
believed the children would be unable to improve in this regard while residing with petitioner.
The psychiatrist also testified to deterioration in the children’s well-being after visitation with
petitioner. A Child Protective Services (“CPS”) worker testified to petitioner’s compliance with
services during his improvement period and ultimately determined that he had not successfully
completed the same because of his lack of housing and lack of food for the children. The
evidence further established that, as the case progressed, the children began to refuse to attend
visitation with petitioner. Petitioner also testified and recanted his earlier stipulation to abusing
the children. Specifically, he testified that his prior stipulation was “an accident” and that he
“[didn’t] really admit to neglect and abuse.” Ultimately, the circuit court terminated petitioner’s
parental rights to the children. 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 proceedings below.

       First, the Court finds no error in regard to petitioner’s allegation that the DHHR failed to
seek reunification of the family as its primary goal. While it is true that West Virginia Code §
49-6-5(a) requires that a family case plan indicate how the DHHR intends to “facilitate return of

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the child to his or her own home,” on appeal petitioner fails to identify any evidence that the
DHHR did not meet this burden. The record is clear that two family case plans were filed below,
and both clearly set forth specific services, including parenting and adult life skills education,
that petitioner was to undergo in order to correct the conditions of abuse and neglect in the home.
The case plans also clearly indicated specific goals for petitioner, including obtaining housing
and maintaining employment, such that the children could be returned to the home.

        We have previously held that “[i]n formulating the improvement period and family case
plans, courts and social service workers should cooperate to provide a workable approach for the
resolution of family problems which have prevented the child or children from receiving
appropriate care from their parents.” Syl. Pt. 5, in part, In re Desarae M., 214 W.Va. 657, 591
S.E.2d 215 (2003) (quoting Syl. Pt. 4, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991)).
While petitioner argues on appeal that the family case plan did not provide him with an adequate
opportunity to resolve the conditions of abuse and neglect, the Court does not agree. As noted
above, the family case plan clearly set forth specific goals for petitioner to achieve and the
services that would allow petitioner to correct the conditions of abuse and neglect in the home.
As such, it is clear that the DHHR’s case plans met the statutory requirements for such filings
and further offered petitioner a “workable approach” to resolve the issues in the home.

        Moreover, the record is clear that it was petitioner’s lack of compliance, not a deficient
family case plan, that necessitated termination of his parental rights. Not only did petitioner fail
to comply with the terms of his improvement period below, but he recanted his prior stipulation
to abusing the children at the dispositional hearing. Petitioner specifically testified that his prior
stipulation was “an accident” and that he “[didn’t] really admit to neglect and abuse.” 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) (quoting In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Based upon this holding, it is clear that
petitioner’s failure to acknowledge the underlying conditions of abuse and neglect in the home
rendered him unable to remedy those conditions. Moreover, the record is clear that the circuit
court was presented with sufficient evidence upon which to terminate petitioner’s parental rights.

        Pursuant to West Virginia Code § 49-6-5(b)(3), there is no reasonable likelihood the
conditions of abuse or neglect can be substantially corrected when “[t]he abusing parent . . . [has]
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.” Based upon petitioner’s willful refusal to acknowledge
the conditions of abuse and neglect in the home, coupled with his admission that his limited
participation in services below was simply “to make everyone happy,” the circuit court had

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sufficient evidence upon which to find there was no reasonable likelihood petitioner could
substantially correct the conditions of abuse and neglect. Further, based on expert testimony that
the children suffered PTSD as a result of petitioner’s abuse, were scared to return home, and that
doing so would be detrimental to their well-being, the circuit court also had sufficient evidence
to find that termination of petitioner’s parental rights was in the children’s best interests.
Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental
rights upon these findings. Further, we have previously held that

                “[c]ourts are not required to exhaust every speculative possibility of
        parental improvement . . . where it appears that the welfare of the child will be
        seriously threatened, and this is particularly applicable to children under the age
        of three years who are more susceptible to illness, need consistent close
        interaction with fully committed adults, and are likely to have their emotional and
        physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re
        R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 4, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). As such, it was not error for the
circuit court to terminate petitioner’s parental rights.

        As to petitioner’s argument that the circuit court erred in terminating his parental rights
without requiring the guardian to file a written report, we find no reversible error. Petitioner is
correct that Appendix A to the Rules of Procedure for Child Abuse and Neglect Proceedings
requires guardians ad litem to “[s]ubmit a written report to the court and provide a written copy
to all parties at least five . . . days prior to the dispositional hearing . . . .” Further, the guardian in
this matter admits that his report was not provided to the parties five days prior to the
dispositional hearing, although he cites to the record to show that he did submit a copy to the
circuit court the day of the dispositional hearing and that the same was filed two days later.
However, under the specific facts of this case, the Court declines to grant petitioner relief on this
issue.

        We have previously held that

                “[w]here it appears from the record that the process established by the
        Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes
        for the disposition of cases involving children [alleged] to be abused or neglected
        has been substantially disregarded or frustrated, the resulting order . . . will be
        vacated and the case remanded for compliance with that process and entry of an
        appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
        558 S.E.2d 620 (2001).

Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). Upon our review, the Court
finds that the guardian’s failure to provide the parties with his written report in advance of the
dispositional hearing does not constitute a substantial disregard or frustration of the applicable
rules and statutes such that vacation of the order terminating petitioner’s parental rights is
necessary. This is especially true in light of the fact that the guardian had previously been clear
about his position regarding termination of petitioner’s parental rights, and petitioner’s willful

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failure to acknowledge the truth of the basic allegations against him. For these reasons, petitioner
is entitled to no relief in this regard.

        Finally, the Court finds petitioner is entitled to no relief in regard to his claim of
ineffective assistance of counsel below. It is important to note that the Court has never
recognized a claim of ineffective assistance of counsel in an abuse and neglect proceeding.
Moreover, it is clear that petitioner’s counsel below provided him with effective representation.
In support of this assignment of error, petitioner cites two instances of alleged ineffective
assistance by trial counsel. The first is based on the allegation that his counsel was ineffective for
failing to object to the family case plan and its alleged insufficiency. However, as outlined
above, the family case plans in this matter were sufficient to provide petitioner with a goal for
addressing the issues of abuse and neglect in the home. As such, counsel’s failure to object to
these case plans does not constitute ineffective assistance of counsel. The second instance of
alleged ineffective assistance was when counsel failed to object to petitioner’s testimony
regarding “his religious beliefs and space travel.” According to petitioner, his own comments
were inadmissible because they were irrelevant, and “it is unlikely [his parental] rights would
have been terminated” absent these comments’ admission. The Court, however, finds no merit to
this argument. The circuit court’s order terminating petitioner’s parental rights makes no mention
of petitioner’s isolated testimony regarding his thoughts on space travel. Conversely, the circuit
court sets forth ample evidence that petitioner’s abuse of the children and failure to acknowledge
the same necessitated termination of his parental rights. For these reasons, the Court finds that
petitioner is entitled to no relief in this regard.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 17, 2014, order is hereby affirmed.


                                                                                           Affirmed.

ISSUED: April 12, 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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