                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                  FILED
In re: K.B.                                                                 September 25, 2017
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
No. 17-0417 (Wood County 16-JA-176)
                                                                                  OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Father B.B., by counsel Jessica E. Myers, appeals the Circuit Court of Wood
County’s March 29, 2017, order terminating his parental rights to K.B.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Ernest M.
Douglas, filed a response on behalf of the child 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 in
terminating his parental rights.

        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 October of 2016, the DHHR filed an abuse and neglect petition against petitioner and
K.B.’s mother alleging that they engaged in domestic violence in the child’s presence and that
they exposed the child to their drug use. According to the petition, a DHHR investigative worker
interviewed the child and the child reported multiple instances of domestic violence between
petitioner and the mother. She also reported that at least one of the incidents involved the
discharge of a weapon. The child further reported that petitioner and her mother abused drugs in
her presence.

        In February of 2017, the circuit court held an adjudicatory hearing. Petitioner did not
appear at the hearing but was represented by counsel. A DHHR investigator testified that the
child disclosed to her that petitioner and the mother engaged in domestic violence and drug use
in her presence and that the child expressed fear about being returned to the home. The
investigator also testified that a neighbor reported to the worker that she provided care for the

       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).


                                                 1


child and that the child often spent the night at the neighbor’s home when the parents did not
return home. The investigator further testified that when she interviewed petitioner, he admitted
to engaging in domestic violence in the child’s presence and that one of the domestic violence
instances “got out of control” and he fired a gun. The child’s caseworker testified that it was
difficult to contact petitioner and the mother and that they did not return her phone calls. She also
testified that petitioner did not comply with random drug screening and that his visitation with
the child was suspended due to his sporadic attendance. Based on the evidence presented, the
circuit court found that petitioner exposed the child to domestic violence and adjudicated him as
an abusing parent.

       In March of 2017, the circuit court held a dispositional hearing. Petitioner again did not
appear but was represented by counsel. Petitioner’s counsel made an oral motion for an
improvement period. The circuit court found that petitioner did not comply with random drug
screening and failed to visit with the child. 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 due to petitioner’s failure to participate in the underlying abuse and neglect
proceedings. Based upon these findings, the circuit court terminated petitioner’s parental rights
by order dated March 29, 2017.2 It is from this order that petitioner now 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.

       Petitioner argues on appeal that the circuit court erred in adjudicating him as an abusing
parent because there was no “clear and convincing” evidence that he abused the child. We do not
agree. According to West Virginia Code § 49-1-201(1)(A) and (D), an “[a]bused child” means a
       2
        Petitioner and the mother’s parental rights to the child were terminated below.
According to the guardian, the child is currently placed in a foster home with the permanency
plan of adoption. Additionally, the proceedings in circuit court concerned an additional child,
M.T., who is not petitioner’s biological child and, thus, is not at issue on appeal.

                                                 2


child whose health or welfare is being harmed or threatened by “[a] parent . . . 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.” Further, West
Virginia Code § 49-1-201(1)(D) also provides that an “[a]bused child” means a child whose
health or welfare is being harmed or threatened by “[d]omestic violence.”

       We have described the “clear and convincing” standard as one in which

       the evidence does not have to satisfy the stringent standard of beyond a
       reasonable doubt; the evidence must establish abuse by clear and convincing
       evidence. This Court has 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.” Brown v. Gobble, 196
       W.Va. 559, 564, 474 S.E.2d 489, 494 (1996)

In re F.S. and Z.S., 233 W.Va. 538, 546, 759 S.E.2d 769, 777 (2014).

       In this case, petitioner failed to appear for both the adjudicatory and the dispositional
hearings and presented no evidence on his behalf to dispute the allegations contained in the
abuse and neglect petition. We have 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 Resc. ex rel. Wright v. Doris, 197 W.Va.
489, 475 S.E.2d 865 (1996). Moreover, the circuit court was presented with evidence that
petitioner and the mother engaged in domestic violence and drug use in the child’s presence and
that the child expressed fear about being returned to the home. Petitioner admitted in his
interview with a DHHR investigator that he engaged in domestic violence in the child’s presence
and that he fired a gun during one of the domestic violence instances. Given this evidence, we
find no error in the circuit court’s adjudication of petitioner as an abusing parent.

        Petitioner also argues that the circuit court erred in terminating his parental rights without
imposing a less-restrictive dispositional alternative. We disagree. West Virginia Code § 49-4­
604(a)(6) provides that circuit courts are directed to terminate parental rights upon findings 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 child’s welfare. West
Virginia Code § 49-4-604(c)(3) provides that no reasonable likelihood that the conditions of
abuse or neglect can be substantially corrected exists when “‘[t]he abusing parent . . . ha[s] not
responded to or followed through with a reasonable family case plan or other rehabilitative
efforts[.]” We have also held that “[t]ermination . . . may be employed without the use of
intervening less restrictive alternatives when it is found that there is no reasonable likelihood . . .



                                                  3


that conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 7, in part, In re Katie
S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

        In the instant case, it is clear that there was no reasonable likelihood that petitioner could
have substantially corrected the conditions of abuse or neglect in the near future. Petitioner stood
silent as to the allegations of domestic violence and drug abuse and refused to address the issues
of abuse. This Court has stated that

       in 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 . .
       ..

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)). Because petitioner failed to acknowledge his
abusive conduct, it is clear that the circuit court correctly found that there was no reasonable
likelihood that the conditions of abuse could be substantially corrected. Moreover, the circuit
court also found that termination was necessary for the child’s welfare. As previously stated,
pursuant to West Virginia Code § 49-4-604(a)(6), circuit courts are directed to terminate parental
rights upon these findings.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
March 29, 2017, order is hereby affirmed.


                                                                                           Affirmed.

ISSUED: September 25, 2017


CONCURRED IN BY:

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




                                                  4


