                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                  FILED
In re: B.W. and R.B.                                                            May 23, 2016
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
No. 15-1167 (Braxton County 15-JA-49 and 15-JA-51)                                OF WEST VIRGINIA




                              MEMORANDUM DECISION
       Petitioner Mother L.B., by counsel J. Paul Williams, appeals the Circuit Court of Braxton
County’s October 16, 2015, order terminating her parental and custodial rights to B.W. and R.B.
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed its response in support of the circuit court’s order and a supplemental response.
The guardian ad litem, David Karickhoff, filed a response on behalf of the children also in
support of the circuit court’s order and also filed a supplemental response. On appeal, petitioner
alleges that the circuit court erred in denying her motion for an improvement period and
terminating her parental and custodial 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 June of 2015, the DHHR filed an abuse and neglect petition against the parents.1
According to the petition, the parents took B.W., then two years old, to the emergency room for
what they described as a diaper rash. Upon examination, however, personnel observed that the
child had multiple bruises around the eyes, face, back, arms, legs, groin, and buttocks.
Additionally, B.W.’s penis was discolored, swollen, and had a half-inch laceration. Personnel
also noted at least three other small injuries to the child. According to the petition, the parents’
only explanation for these injuries was that the child was clumsy and must have fallen.
Following the doctor’s examination, the parents were advised that the child required further
testing. The parents refused and took the child from the hospital against medical advice. Based
on these facts, a referral was made to Child Protective Services (“CPS”), who contacted law
enforcement to have the child brought back to the hospital. When a caseworker arrived at the
hospital, it was discovered that B.W. tested positive for marijuana, and the parents could not
account for this fact. The CPS employee spoke with both parents individually, during which each

       1
        The petition additionally named another of the father’s children, R.W., as an infant
respondent. However, petitioner is not R.W.’s biological parent. On appeal, petitioner raises no
assignment of error regarding R.W. As such, that child is not the subject of this memorandum
decision.


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parent denied having caused the child’s injuries. That same month, the circuit court held a
preliminary hearing, which the parents waived. Further, in August of 2015, petitioner gave birth
to R.B. Thereafter, the DHHR amended the petition to include this child in the proceedings.

        In September of 2015, the circuit court held two adjudicatory hearings. Petitioner
attempted to stipulate at adjudication, but would admit only to a failure to submit the child for
further medical care as suggested by emergency room personnel. As such, the circuit court chose
to proceed to a full adjudicatory hearing. The circuit court heard evidence from the emergency
room physician who testified that B.W. was brought to the emergency room with extensive
injuries. The physician further testified that neither parent could provide a plausible explanation
for these injuries, as the bruises were of varying ages and were, therefore, not consistent with a
single injury. The physician also addressed the fact that the laceration on the child’s penis was
not consistent with diaper rash and that the bruises were not the result of a fall. Ultimately, the
physician testified that the injuries were the result of non-accidental trauma. After taking
evidence, the circuit court adjudicated petitioner as an abusing parent for her failure to protect
B.W.

        In October of 2015, the circuit court held a dispositional hearing, during which a
psychologist who evaluated petitioner testified that she refused to take responsibility for the
child’s injuries. Ultimately, the circuit court terminated petitioner’s parental and custodial 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.

        On appeal to this Court, petitioner’s arguments are based almost entirely upon her
assertion that the circuit court found that she did not intentionally inflict injuries upon B.W. and
that it could not determine who injured the child. In regard to the circuit court’s denial of her
motion for an improvement period, petitioner argues that the circuit court did not consider the
fact that she successfully completed all services provided, including providing clean drug screens

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throughout the pendency of the proceedings below. Instead, petitioner argues that the circuit
court relied entirely upon the testimony of the psychologist that evaluated her and the
psychologist’s opinion that there were no services that could correct the conditions of abuse and
neglect present in this case. The Court, however, does not agree.

        On the contrary, the record is clear that the circuit court based its denial on petitioner’s
failure to acknowledge her role in the child’s abuse and the fact that her failure to acknowledge
the same meant that services could not correct the underlying conditions of abuse and neglect.
This is in keeping with our prior decisions, wherein we have 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 the circuit
court did not err in denying petitioner an improvement period, and we find no error in this
regard.

        Further, the Court finds no error in regard to the circuit court’s termination of petitioner’s
parental and custodial rights to the children. Again, petitioner bases her argument upon her
assertion that, at adjudication, the circuit court found that “[t]here is no proof . . . the child’s
injuries were intentionally inflicted.” However, petitioner’s argument on appeal ignores our prior
holdings regarding physical abuse perpetrated by an unidentified individual against a child while
in a parent’s care.

        In this proceeding, the circuit court adjudicated petitioner upon the allegations that she
failed to protect the child from the extensive injuries observed by medical personnel.
Specifically, the circuit court found that “[B.W.’s] injuries occurred while in the custody of the
adult respondents” and that the parents, therefore, failed to protect the child. Further, while it is
true that the circuit court stated that there was no proof that B.W.’s injuries were intentionally
inflicted, in the same order it further found that it was “troubled by the nature of the injuries and
how they occurred.” The circuit court went on to find that it did not believe B.W.’s injuries were
the result of a fall, as petitioner had asserted. Further, the circuit court found at adjudication that
based on the extent of B.W.’s injuries, “the same were caused by some person.” Ultimately, at
the conclusion of its dispositional order, the circuit court specifically found that “the adult
respondents at the least failed to protect the child or at the worst intentionally inflicted the
injuries.” While the circuit court lacked sufficient evidence to clearly find that petitioner
intentionally inflicted the injuries in question, the circuit court had sufficient evidence upon
which to find that someone injured the child while in petitioner’s care and that she failed to
identify the perpetrator of that abuse or otherwise protect the child from the same.

       This Court has previously held that

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               “[p]arental rights may be terminated where there is clear and convincing
       evidence that the infant child has suffered extensive physical abuse while in the
       custody of his or her parents, and there is no reasonable likelihood that the
       conditions of abuse can be substantially corrected because the perpetrator of the
       abuse has not been identified and the parents, even in the face of knowledge of the
       abuse, have taken no action to identify the abuser.” Syllabus Point 3, In re Jeffrey
       R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993).

Syl. Pt. 4, In re Harley C., 203 W.Va. 594, 509 S.E.2d 875 (1998). As noted above, the circuit
court was presented with ample evidence of the child’s extensive physical abuse, including
testimony from medical personnel who treated B.W. for the injuries. Moreover, the circuit court
specifically found that there was no reasonable likelihood petitioner could substantially correct
the conditions of abuse or neglect.

        Pursuant to West Virginia Code § 49-4-604(c)(2), there is no reasonable likelihood the
conditions of abuse or neglect can be substantially corrected when “[t]he abusing parent . . . [has]
willfully refused or [is] presently unwilling to cooperate in the development of a reasonable
family case plan designed to lead to the child’s return to their care, custody and control.” Based
upon petitioner’s willful refusal to acknowledge the fact that B.W. was injured while in her care,
coupled with testimony that there were no services that could be offered to petitioner because of
her refusal to acknowledge the abuse, the circuit court had sufficient evidence upon which to find
there was no reasonable likelihood petitioner could substantially correct the conditions of abuse
and neglect. Further, the circuit court also found that termination of petitioner’s parental and
custodial rights was in the children’s best interests. Pursuant to West Virginia Code § 49-4­
604(b)(6), circuit courts are directed to terminate parental rights upon these findings. As such, it
was not error for the circuit court to terminate petitioner’s parental and custodial rights, as there
were no less-restrictive dispositional alternatives available.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 16, 2015, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: May 23, 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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