                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


                                                                                      FILED
In re Z.R.
                                                                                   June 25, 2020
                                                                                 EDYTHE NASH GAISER, CLERK
No. 19-1057 (Wayne County 19-JA-6)                                               SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA




                               MEMORANDUM DECISION


        Petitioner Father T.L., by counsel Timothy Rosinsky, appeals the Circuit Court of Wayne
County’s October 18, 2019, order terminating his parental rights to Z.R. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee A. Niezgoda, filed a
response in support of the circuit court’s order. The guardian ad litem, Shawn Bartram, 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 denying his motion for a post-adjudicatory improvement period 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.

         The DHHR filed a child abuse and neglect petition alleging that the mother had abused or
neglected Z.R. In July of 2019, after paternity testing confirmed that petitioner was the child’s
father, the DHHR amended the petition and alleged that petitioner failed to establish paternity of
the child, despite a reasonable basis to believe he was the father; failed to bond with the child; and
failed to financially or emotionally support the child.

        Later in July of 2019, the circuit court convened for a preliminary hearing, which petitioner
waived. Petitioner testified that he learned the mother suspected that he was child’s father when
the West Virginia Bureau of Child Support Enforcement contacted him sometime in 2017.
Petitioner requested paternity testing at that time and indicated that he did not learn the results of

       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).
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the testing until May of 2019. Further, petitioner denied having any contact with the mother, who
was failing to comply with services at the time, and denied that he was in a relationship with her.
When questioned why the mother’s social media profile announced that she was in a relationship
with petitioner, he again denied that he was in contact with her. Petitioner submitted a drug screen
that was negative for controlled substances.

        At the adjudicatory hearing in August of 2019, petitioner stipulated to the allegations that
he failed to establish paternity and to financially support the child. Petitioner also testified that he
rekindled his relationship with the mother in June of 2019, and took her back to Indiana with him,
where he had lived since 2017. He admitted that he and the mother sanitized a social media page
in order to deceive the circuit court about their relationship. The circuit court adjudicated petitioner
as an abusing parent based on his stipulation and testimony, and ordered that petitioner pay fifty
dollars per month in child support and participate in scheduled supervised visitations. In September
of 2019, the mother’s parental rights were terminated due to her failure to participate in an
improvement period and court proceedings.

         In October of 2019, the circuit court held a dispositional hearing, and petitioner moved for
a post-adjudicatory improvement period. Following the prior hearing, petitioner participated in a
single supervised visitation with Z.R., but left prior to the scheduled parenting class. Petitioner
testified that he was aware that he had been ordered to pay child support and acknowledged that
he had not yet made any payments because he had been “just putting it off, to be honest.” Petitioner
asserted he was employed full time and had the money available to pay the delinquent amount.
Petitioner further testified that, since the last hearing, he had been arrested and charged with
operating a vehicle without a license, possession of marijuana, and possession of a handgun
without a license. Finally, petitioner initially denied any relationship with the mother; however, on
cross-examination, he admitted that their relationship was ongoing. Petitioner acknowledged prior
warnings from the circuit court and counsel that continued contact with the mother would
jeopardize his parental rights to Z.R. Petitioner testified that “if I can’t keep my wife [the mother],
I want my son in my life. I’ll keep my son, and I’ll get rid of [the mother].”

        Ultimately, the circuit court denied petitioner’s motion for a post-adjudicatory
improvement period and terminated his parental rights. The court considered that petitioner was
in a relationship with the mother at the time Z.R. was conceived, yet noted that he made no effort
to establish paternity, provide support, or form a bond with the child. As a result, Z.R. was two
and a half years old and had no relationship with petitioner. The circuit court further considered
that petitioner failed to pay child support after it was ordered and continued to misrepresent his
relationship with the mother, whose parental rights to Z.R. had been previously terminated.
Finally, the court considered petitioner’s recent criminal charges and reasoned that “those cases
are not likely to be over in time for us to determine if he has stability in Indiana.” Based on this
evidence, the circuit court concluded that there was no reasonable likelihood that the conditions of
abuse and neglect could be substantially corrected in the near future and that it was contrary to the




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welfare of the child to be reunified with petitioner. The circuit court memorialized its decision by
its October 18, 2019, order. Petitioner now appeals that order. 2

       The Court has previously held:

               “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 review, this Court finds no
error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred in denying his motion for a post-
adjudicatory improvement period. Petitioner “pledged” to the circuit court that he would choose
his son over the mother, pay his entire child support obligation, and fully cooperate in an
improvement period. He avers that this testimony was clear and convincing evidence that he was
likely to fully participate in a post-adjudicatory improvement period. Petitioner acknowledges that
“[h]is sin, essentially, is emotional and financial abandonment of his [two-and-a-half-]year[-]old
son. For two years that was true. But, he returned . . . to show his commitment to his son after
paternity was confirmed.” We find petitioner’s argument to be without merit.

         West Virginia Code § 49-4-610(2)(B) provides that a circuit court may grant a parent a
post-adjudicatory improvement period when he “demonstrates, by clear and convincing evidence,
that [he] is likely to fully participate in the improvement period.” It is well established that “West
Virginia law allows the circuit court discretion in deciding whether to grant a parent an
improvement period.” In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015).
“Additionally, if a parent is unable to demonstrate an ability to correct the underlying conditions
of abuse and/or neglect in the near future, termination of parental rights may proceed without the
utilization of an improvement period.” In re Charity H., 215 W. Va. 208, 216, 599 S.E.2d 631,
639 (2004). Here, petitioner failed to demonstrate that he was likely to fully participate in an
improvement period. He failed to pay his child support obligations, despite his admission that he
had the funds available, and failed to participate in parenting classes. More concerning, petitioner
continually misled the circuit court regarding his relationship with the mother. Petitioner argues


       2
       As mentioned above, the mother’s parental rights were terminated in September of 2019.
According to the parties, the permanency plan for the child is adoption in his current foster
placement.
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on appeal that he was never explicitly ordered not to associate with the mother. However, petitioner
acknowledged at the dispositional hearing that continued contact with the mother would jeopardize
his parental rights. Moreover, the broader issue in petitioner’s consistent attempts to hide this
relationship is his credibility. “A reviewing court cannot assess witness credibility through a
record. The trier of fact is uniquely situated to make such determinations and this Court is not in a
position to, and will not, second guess such determinations.” Michael D.C. v. Wanda L.C., 201 W.
Va. 381, 388, 497 S.E.2d 531, 538 (1997). Considering that petitioner’s testimony was frequently
dishonest and misleading, we find no error in the circuit court disregarding petitioner’s self-serving
statements that he would comply with services and relying, instead, on his actions during the
proceeding, specifically his failure to participate in parenting classes or pay child support. We find
that the circuit court did not err in denying petitioner’s motion for a post-adjudicatory improvement
period.

        Further, petitioner argues that the circuit court erred in terminating his parental rights
because it should have granted him an improvement period. Petitioner asserts that when the circuit
court denied his motion for an improvement period, “it really had no choice but to terminate his
parental rights.” However, this is not an accurate statement of the possible dispositions available
to the circuit court. See W. Va. Code § 49-4-604(b)(1)-(6) (2019). 3 Notably, petitioner did not
request any less-restrictive dispositional alternatives other than a post-adjudicatory improvement
period. Rather, the circuit court properly terminated petitioner’s parental rights based on its finding
that there was no reasonable likelihood that the conditions of abuse and neglect could be
substantially corrected, which petitioner entirely ignores on appeal. West Virginia Code § 49-4-
604(b)(6) (2019) provides that a circuit court may terminate a parent’s 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 welfare of the
child. Petitioner’s “sin” of “emotional and financial abandonment of his [two-and-a-half-]year[-
]old son” is recognized in West Virginia Code § 49-4-604(c)(4) (2019) as one of the circumstances
where a circuit court may find that there is no reasonable likelihood that the conditions of abuse
and neglect could be substantially corrected in the near future. 4 Therefore, we conclude that the
circuit court’s finding that there was no reasonable likelihood that the conditions of abuse and
neglect could be substantially corrected in the near future is supported by the record and by
petitioner’s admission on appeal. We have held that

                “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [West Virginia
       Code § 49-4-604 (2019)] . . . may be employed without the use of intervening less
       restrictive alternatives when it is found that there is no reasonable likelihood under
       [West Virginia Code § 49-4-604(c) (2019)] . . . that conditions of neglect or abuse



       3
        Although the Legislature amended West Virginia Code § 49-4-604 effective June 5, 2020,
including renumbering the provisions, the amendments do not impact this case.
       4
         West Virginia Code § 49-4-604(c)(4) (2019) provides that a circuit court may find that
there is “no reasonable likelihood that the conditions of neglect or abuse can be substantially
corrected” when “the abusing parent or parents have abandoned the child.”
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       can be substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266
       S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Accordingly, we find no error
in the circuit court’s order terminating petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 18, 2019, order is hereby affirmed.

                                                                                       Affirmed.

ISSUED: June 25, 2020

CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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