                                 STATE OF WEST VIRGINIA
                               SUPREME COURT OF APPEALS

In Re: A.C., O.C., and D.C.                                                         FILED
                                                                                   March 12, 2013
                                                                               RORY L. PERRY II, CLERK
No. 12-0915 (Berkeley County 10-JA-56, 57 & 58)                              SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

                                 MEMORANDUM DECISION

        Petitioner Father filed this appeal, by counsel Nancy A. Dalby, from the Circuit Court of
Berkeley County which terminated his parental rights by order entered on July 5, 2012. The
guardian ad litem for the children, Anne B. Prentice, has filed a response supporting the circuit
court’s order. The Department of Health and Human Resources (“DHHR”), by its attorney Lee
Niezgoda, also filed a response in support of the circuit court’s order.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       The DHHR initiated this case when it filed its first petition in August of 2010 and the
amended petition in November of 2010. Both petitions contained allegations of sexual abuse
against child O.C., physical abuse against O.C. and A.C., and domestic violence between the
parents in the children’s presence. After about one year into the proceedings, the parents
admitted to their failure to protect the children by engaging in domestic violence in the children’s
presence. Also around this time, the DHHR notified the parties that it would no longer pursue the
sexual abuse allegations. Dispositional hearings began in September of 2011 and, in July of
2012, the circuit court entered its order terminating both parents’ parental rights without an
improvement period. Petitioner Father appeals this order.

        Petitioner Father first argues that the circuit court erred in failing to grant him an
improvement period because he showed by clear and convincing evidence that he would likely
participate in one. Petitioner Father asserts that he admitted to domestic violence and that he
participated in domestic violence classes. In response, the children’s guardian ad litem and the
DHHR both argue that it took a year after the case was opened for Petitioner Father to even
acknowledge issues of domestic violence. They further argue that notwithstanding this
acknowledgement, at the dispositional hearing in January of 2012, Petitioner Father was not fully
admitting to domestic violence in the home. The dispositional hearing transcript provides that
Petitioner Father denied specific instances of physical abuse and domestic violence that had been
outlined in the petition.

        Next, Petitioner Father argues that the circuit court erred in terminating his parental rights
because it failed to make a finding of his parental unfitness by clear and convincing evidence.
Petitioner Father argues that the circuit court merely relied on the passage of time between the


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filing of the petition and the time Petitioner Father admitted to domestic violence. In response,
the children’s guardian ad litem and the DHHR both argue that, at adjudication, Petitioner Father
clearly stipulated to engaging in domestic violence within the home and in the presence of the
children. They assert that Petitioner Father cannot now claim that any admission in this regard
was insufficient to establish his parental unfitness.

        Third, Petitioner Father argues that the circuit court violated his due process rights when
the DHHR alleged sexual abuse yet refused to provide Petitioner Father with services for such.
Petitioner Father also argues that his due process rights were violated when, after another year in
the proceedings, the DHHR determined that it would no longer pursue the sexual abuse
allegations yet continued to deny visitation to Petitioner Father. Fourth, alongside this argument
concerning his due process rights, Petitioner Father argues that the DHHR acted in bad faith and
in violation of the West Virginia Rules of Child Abuse and Neglect Proceedings when it failed to
timely inform Petitioner Father that it was no longer pursuing the sexual abuse allegations. Fifth,
Petitioner Father argues that under these circumstances, the circuit court erred in terminating his
parental rights because no other aggravated circumstances were alleged. In response to these
arguments, the children’s guardian ad litem and the DHHR contend that there were no errors
concerning these issues. Both highlight that although the DHHR could have differently handled
the investigation concerning the sexual abuse allegations, it does not negate the fact that
Petitioner Father chose not to admit to any domestic violence allegations in the petition until the
DHHR decided to no longer pursue the allegations concerning sexual abuse. They also raise that
the rules do not provide Petitioner Father with an entitlement to visitation.

         Petitioner Father next argues that the circuit court denied him due process by delaying
adjudication for twelve months. Petitioner Father asserts that he waived his right to have an
adjudicatory hearing within thirty days of the preliminary hearing, but did not waive his right to
a hearing altogether. He further asserts that, during this time, he was denied contact and
visitation with his children. The guardian ad litem and the DHHR argue that the circuit court
committed no errors in this regard. They both assert that although there were delays in this case,
Petitioner Father did not object to any continuance and did not earlier raise any timing issues
concerning adjudication. The guardian and the DHHR assert that none of the delays in this case
prejudiced Petitioner Father, reasserting that he did not admit to any allegations of domestic
abuse for the entire first year of this case.

        Lastly, Petitioner Father argues that the circuit court erred in finding that the DHHR was
required to seek termination based on West Virginia Code § 49-6-5b(a)(1) because dispositional
hearings began in September of 2011 after the petition was filed in August of 2010. In response,
the children’s guardian ad litem and the DHHR contend that termination sought under this statute
was not in error. Even two years after the case was initiated, the parents had not yet fully
admitted to their issues and any further extension of time to establish permanency cannot be
afforded to the children.

       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


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       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). We are also mindful that under
West Virginia Code § 49-6-12, the subject parent bears the burden of proving by clear and
convincing evidence that he or she would substantially comply with an improvement period.
Under the same statute, the circuit court has the discretion to grant or deny a motion for an
improvement period. Pursuant to Rule 15 of the West Virginia Rules of Procedure for Child
Abuse and Neglect Proceedings, determining visitation is within the circuit court’s authority. In
cases of abuse and neglect, we reiterate that the children’s welfare acts as “the polar star by
which the discretion of the court will be guided.” In Re: Clifford K., 217 W.Va. 625, 634, 619
S.E.2d 138, 147 (2005) (quoting Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W.Va. 302, 47
S.E.2d 221 (1948)).

        Upon our review, the Court finds no error in the circuit court’s denial of an improvement
period, its termination of Petitioner Father’s parental rights, or in its navigation of the
proceedings below. We find that the delays in this case did not substantially frustrate the overall
proceedings to warrant reversing termination. See In re Edward B., 210 W.Va. 621, 634, 558
S.E.2d 620, 633 (2001). The Court finds that the circuit court was presented with sufficient
evidence upon which it based findings that Petitioner Father would not substantially comply with
an improvement period and to, accordingly, deny his motion for an improvement period. The
Court also finds that the circuit court was presented with sufficient evidence upon which it based
its findings that there was no reasonable likelihood to believe that the conditions of abuse and
neglect could be substantially corrected in the near future and that termination was necessary for
the children’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed
to terminate parental rights upon such findings. West Virginia Code § 49-6-5b(a)(1) does not
nullify a circuit court’s duty to terminate parental rights under West Virginia Code § 49-6-5(a)(6)
and, accordingly, we find no abuse of discretion or error by the circuit court concerning
Petitioner Father’s argument in that regard.

       For the foregoing reasons, we affirm the circuit court’s order terminating petitioner’s
parental rights to the subject children.


                                                                                        Affirmed.




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ISSUED: March 12, 2013


CONCURRED IN BY:

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

DISSENTING:

Justice Menis E. Ketchum




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