                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS

                                                                                      FILED
In re J.W. and S.W.                                                              February 23, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 17-0846 (Mineral County 17-JA-7 and 8)                                       SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Father, E.W., by counsel David C. Fuellhart, appeals the Circuit Court of
Mineral County’s July 31, 2017, order terminating his parental rights to J.W. and S.W.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”), Max H. White, filed a response on behalf of the children in support of the circuit
court’s order. On appeal, petitioner argues that the circuit court erred in adjudicating him as an
abusing parent, denying him a post-dispositional improvement period, and 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 April of 2017, the DHHR filed an abuse and neglect petition alleging that petitioner
physically abused both children and that the mother failed to protect the children from the abuse.
Specifically, the petition alleged that petitioner pinched, bit, hit, and burned J.W. on multiple
occasions and hit S.W. with a wooden spoon on at least one occasion, leaving bruises. The
DHHR also alleged that the mother hit the children and witnessed petitioner abuse the children,
but failed to protect them and allowed them to be subjected to further abuse. The petition further
alleged that petitioner physically abused the mother in the presence of the children. Petitioner
waived his preliminary hearing.

       In June of 2017, the circuit court held an adjudicatory hearing wherein neither petitioner
nor the mother presented any testimony or evidence. The DHHR presented the testimony of the
maternal grandmother, who testified that J.W. told her that, “[m]y daddy beat me up.” She also
                                                            
              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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testified that she saw bruises on J.W.’s side and when she asked J.W. how it happened, the child
stated, “[o]h, my daddy beat my ass with a spoon.” She further testified that when she questioned
the mother about the child’s injuries, she stated, “[J.W.’s] fine. What stories is she telling you
now?” The maternal grandmother also testified that the mother called her one day very upset that
petitioner kicked the family dog and that the dog was bleeding and required fifteen stitches.

         In addition to the maternal grandmother’s testimony, Sergeant Scott Huffman of the West
Virginia State Police testified regarding his investigation of the abuse of the children. He
testified that after his investigation, he charged petitioner with several counts of child abuse,
including one for striking J.W. in the face; one for striking her with a spoon, causing bruising;
punching her in the stomach, back, and legs; and for burning her face with boiling water. He also
testified that the mother was charged with child neglect based upon allowing petitioner to
perpetrate physical abuse upon her children. Finally, he testified that upon questioning J.W., he
concluded that J.W. was terrified of petitioner, did not want to return home, and that there was
no evidence that her disclosures regarding the abuse were fabricated or influenced by her
maternal grandmother or anyone else.

         Next, the nurse who conducted a physical examination of the children in April of 2017
testified that she observed a bruise on S.W.’s back, which she found suspicious due to its
location. She did not observe any bruises on J.W. at that time, but reviewed pictures taken after
she was burned on her cheek.

        Finally, a caseworker testified regarding her interviews with J.W. in April of 2017 and
May of 2017. She testified that J.W. disclosed multiple acts of physical abuse by petitioner,
including pinching her arms, burning her face with hot water, hitting her with a spoon in the
back, and “beating her up” when she did her homework incorrectly. The caseworker testified that
J.W. clarified that “beating her up” meant that petitioner punched her and smacked her face. She
also testified that J.W. disclosed that her mother sat on the couch as petitioner burned her face
and stated, “[m]om didn’t even stop it,” referring to the abuse. J.W. also disclosed to the
caseworker that she was afraid her little sister, S.W., was going to die when her paternal
grandmother put her hand over S.W.’s mouth to silence her when petitioner was beating her
mother. J.W. also told the caseworker about the incident in which petitioner kicked the family
dog. Based on this evidence, the circuit court adjudicated petitioner as an abusing parent.

        In July of 2017, the circuit court held a dispositional hearing wherein neither petitioner
nor the mother testified. A therapist who was working with J.W. testified that the child exhibited
several signs of trauma. She also testified that J.W. disclosed to her that although her mother did
not hurt her, she witnessed a lot of the abuse by petitioner and did nothing to protect her. The
therapist testified that it would not be in the children’s best interests to return to the home. A
caseworker testified that petitioner and the mother remained in a relationship and that neither one
of them acknowledged the abuse to J.W. or any other form of abuse in the home. Due to that
denial, there were no services that could assist them in reunification. Petitioner’s father testified
that he never noticed any signs of abuse or neglect and testified that petitioner interacted with the
children in various ways, including playing games, fishing, and hiking. The circuit court found
that petitioner failed to admit to any abuse or neglect of the children and both parents failed to
accept responsibility for the abuse and neglect of the children. Based on that evidence, the circuit

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court found no reasonable likelihood that the conditions of abuse and neglect could be corrected
in the near future and that termination was in the children’s best interests. Ultimately the circuit
court terminated petitioner’s parental rights in its July 31, 2017, order.2 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, petitioner argues that the evidence did not support adjudication and asserts that the
children’s statements were unreliable. We disagree. Pursuant to West Virginia Code § 49-1-201,
“‘[a]bused child’ means a child whose health or welfare is being harmed or threatened by: (A) A
parent, guardian or custodian who knowingly or intentionally inflicts, attempts to inflict or
knowingly allows another person to inflict, physical injury . . . upon the child or another child in
the home.” Further, we have described the “clear and convincing” standard as follows:

              the evidence in an abuse and neglect case 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). Here, there was substantial
evidence that petitioner abused the children, as the record on appeal shows that petitioner
repeatedly abused J.W. by pinching, biting, punching, smacking, and burning her. Additionally,
the DHHR presented evidence of J.W.’s disclosures to law enforcement, a nurse, and a therapist

                                                            
              2
        In addition to the termination of petitioner’s parental rights, the mother’s parental rights
were also terminated. According to the guardian and the DHHR, the children are placed with
their maternal grandmother with a permanency plan of adoption in that home.
                                                               3

 
regarding the physical abuse perpetrated by petitioner and the circuit court found that her
disclosures were credible.

       Further, 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, W.Va. Dep't of Health & Human Res. ex rel. Wright v. Doris S., 197 W. Va. 489, 475
S.E.2d 865 (1996). Petitioner did not testify on his own behalf or present any evidence at the
adjudicatory hearing. Based on this evidence, the circuit court did not err in adjudicating
petitioner as an abusing parent.

        Next, petitioner argues that the circuit court erred in refusing to grant him a post-
dispositional improvement period. He asserts that his father’s testimony at the dispositional
hearing was sufficient to show that he would be willing to participate in an improvement period.
We do not find this argument compelling.

        Pursuant to West Virginia Code § 49-4-610(3), a circuit court may grant a post-
dispositional improvement period when the parent “demonstrates, by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period[.]” Here,
petitioner failed to meet the burden of proof, as the only evidence in support of his motion for a
post-dispositional improvement period was his father’s testimony. Petitioner’s father’s testimony
that he had not witnessed abuse by petitioner was insufficient to satisfy the burden necessary for
petitioner to be granted an improvement period because ample evidence was established to show
that petitioner refused to acknowledge his abuse of the children.

       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)). Here, petitioner failed to acknowledge the
existence of abuse in the home. As a result, to grant petitioner a post-dispositional improvement
period would have been futile. Therefore, we find that petitioner failed to satisfy the applicable
burden to obtain a post-dispositional improvement period, and we find no error by the circuit
court in this regard.



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        Petitioner also argues that the circuit court erred in terminating his parental rights because
there were less-restrictive alternatives available. We disagree and find that termination of
petitioner’s parental rights was the least-restrictive disposition. West Virginia Code § 49-4-
604(b)(6) provides that circuit courts are 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[.]”
        Here, petitioner failed to acknowledge the issues of abuse in the home, and therefore, the
issues are untreatable and offering services would have been futile. The circuit court found that
there was no reasonable likelihood that petitioner could correct the conditions of abuse and
neglect in the near future and that termination was necessary for the children’s welfare. West
Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental rights upon
such findings. Accordingly, we find no error in the circuit court’s decision to terminate
petitioner’s parental rights.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 31, 2017, order is hereby affirmed.


                                                                                           Affirmed.

ISSUED: February 23, 2018


CONCURRED IN BY:

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

 

 




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