                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


                                                                                  FILED
In re: K.F. and S.F.,
                                                                                May 23, 2016
                                                                               RORY L. PERRY II, CLERK
No. 15-0981 (Braxton County 15-JA-28 and 15-JA-29)                           SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Mother L.E., by counsel Timothy V. Gentilozzi, appeals the Circuit Court of
Braxton County’s September 8, 2015, order terminating her parental and custodial rights to K.F.
and S.F.1 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 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 a post-adjudicatory improvement period.2

        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 March of 2015, the DHHR filed an abuse and neglect petition against petitioner that
was subsequently amended several times. The various petitions alleged that petitioner abused
K.F. and S.F. through inappropriate forms of discipline such as handcuffing the children by their
arms and legs to a chair and “gagging” K.F. The petitions further alleged that petitioner used
illegal drugs in the home. Thereafter, petitioner waived her right to a preliminary hearing

        The circuit court held an adjudicatory hearing in April of 2015, during which it heard
testimony from K.F. and S.F. According to the children, petitioner handcuffed them by their
wrists and ankles on multiple occasions to a chair and/or each other and hit them with a leather

       1
         This case originally concerned eight children. However, six of those children are not
petitioner’s biological children. As such, petitioner appeals only the rulings in regard to the
children named herein, K.F. and S.F., and the Court addresses only these children in this
memorandum decision.
       2
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
                                                1


belt as a form of discipline. The children also testified that petitioner allowed this type of
discipline to occur in her presence and that she used illegal drugs. Lastly, K.F. testified that
petitioner threatened her that it would be “a bad, bad day” if she told anyone about the discipline.
By order entered August 25, 2015, the circuit court adjudicated petitioner as an “abusive and
neglectful” parent3 and K.F. and S.F. as abused and neglected children.4

          In July of 2015, the circuit court held a dispositional hearing on the DHHR’s motion to
terminate petitioner’s parental rights and petitioner’s motion for a post-adjudicatory
improvement period. In support of her motion, petitioner simply testified that she admitted to
certain allegations in the petitions and was “willing to do whatever they want[ed] me to do.”
According to petitioner, she denied actually placing the handcuffs on the children. Contrary to
petitioner’s initial testimony, she rationalized her conduct by testifying that she was “trying a
different tactic of discipline by retraining them.” By order entered September 8, 2015, the circuit
court denied petitioner’s motion for a post-adjudicatory improvement period and terminated her
parental rights. In denying her motion, the circuit court found that petitioner failed to meet her
burden of proof, “failed to protect the children . . . fail[ed] to recognize the severity of the actions
. . . [, and] fail[ed] to appreciate the willfulness of her actions.” It is from this 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).



        3
         While the circuit court adjudicated petitioner as an “abusive and neglectful” parent, we
note that West Virginia Code § 49-1-3(2) defines an abusing parent as one “whose conduct, as
alleged in the petition charging child abuse or neglect, has been adjudged by the court to
constitute child abuse or neglect.” As such, petitioner’s acts of abuse and neglect classify her as
an “abusing parent.”
        4
        We remind circuit courts that pursuant to Rule 27 of the Rules of Procedure for Child
Abuse and Neglect Proceedings, “[t]he [circuit] court shall enter an order of adjudication,
including findings of fact and conclusions of law, within ten (10) days of the conclusion of the
hearing[.]”
                                                   2


Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon review, we find no error in
the circuit court’s denial of petitioner’s motion for a post-adjudicatory improvement period.

        Petitioner argues that the circuit court erred in denying her motion for a post-adjudicatory
improvement period because she has a strong bond with her children and testified that she was
“willing to do whatever [the DHHR] want[ed] [her] to do.” However, contrary to petitioner’s
argument, the record is clear that the circuit court did not err in denying petitioner’s motion, as
she failed to satisfy the necessary burden of proof. Pursuant to West Virginia Code § 49-4­
610(2), circuit courts have discretion to grant an improvement period when the parent
“demonstrates, by clear and convincing evidence, that the [parent] is likely to fully participate in
the improvement period . . . .” The only evidence that petitioner was likely to fully participate in
a post-adjudicatory improvement period was her own self-serving testimony.

       Further, the evidence clearly established that petitioner failed to acknowledge any
responsibility for the children’s abuse or neglect in this matter. We have previously 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)).

        In the instant matter, it is clear that petitioner failed to acknowledge the existence of the
conditions of abuse and neglect in the home. While petitioner argues that she “admitted to
knowing about the use of handcuffs and acknowledged [that] their use . . . was improper” the
circuit court specifically found that she was not credible or consistent in her testimony. The
circuit court heard extensive testimony during the adjudicatory hearing that petitioner actively
handcuffed K.F. and S.F. by their wrists and ankles and hit them with a leather belt as discipline.
Moreover, petitioner’s argument is in direct contradiction with her own dispositional testimony
that she “was just trying a different tactic of discipline by restraining them.” Ultimately, the
circuit court found that petitioner failed to meet her burden of proof, “failed to protect the
children . . . fail[ed] to recognize the severity of the actions . . . [, and] fail[ed] to appreciate the
willfulness of her actions.” Based on this evidence, it is clear that petitioner could not establish
she was likely to fully participate in a post-adjudicatory improvement period, especially in light
of her refusal to acknowledge the underlying conditions of abuse and neglect in the home. As
such, we find no error in the circuit court denying petitioner’s motion

      For the foregoing reasons, we find no error in the decision of the circuit court and its
September 8, 2015, order is hereby affirmed.


                                                                                              Affirmed.

                                                   3


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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