                                                      STATE OF WEST VIRGINIA        FILED
                                                    SUPREME COURT OF APPEALS    October 19, 2018
                                                                                EDYTHE NASH GAISER, CLERK

                                                                                SUPREME COURT OF APPEALS

                                                                                    OF WEST VIRGINIA
 
In re K.B., E.B., and L.B.

No. 18-0401 (Mercer County 15-JA-057-WS, 15-JA-058-WS, and 15-JA-059-WS)


                                                          MEMORANDUM DECISION
        Petitioner Father A.B., by counsel David B. Kelley, appeals the Circuit Court of Mercer
County’s April 3, 2018, order terminating his parental rights to K.B., E.B., and L.B.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a
response in support of the circuit court’s order and a supplemental appendix. The guardian ad
litem (“guardian”), Catherine Bond Wallace, 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 denying his
motion to require L.B. to testify, in denying his motion for an improvement period, and
subsequently 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 May of 2015, the DHHR filed a petition alleging that petitioner and the mother
engaged in domestic violence in front of the children and that L.B., age seven, was injured as a
result. Further, the DHHR alleged that petitioner and the mother participated in an attempted
robbery while L.B. was with them. According to the DHHR, petitioner and the mother were
charged with attempted first-degree robbery as a result of their conduct.

        In June of 2015, the circuit court held a status hearing and ordered a parental fitness
evaluation. Later, the parental fitness evaluation was returned and petitioner’s prognosis for
improvement was determined to be extremely poor to nonexistent. The evaluation found that
petitioner exposed the children to drug use, domestic violence, the perpetration of violent crimes,
                                                            
              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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and long-term neglect. Yet, petitioner did not accept that his actions had a significant negative
effect on the children. Further, the evaluation noted that petitioner’s test scores suggested a
significant danger for abusive behaviors. The DHHR moved to introduce L.B.’s testimony
through a forensic interviewer. Petitioner responded with a motion to require the child’s
testimony. Ultimately, the circuit court denied petitioner’s motion and ordered that L.B. would
not be required to testify in person.

        The circuit court held the adjudicatory hearing in February of 2016, and petitioner
renewed his motion for L.B. to testify in person. The circuit court again denied petitioner’s
motion. The DHHR presented testimony from a Mercer County police officer, L.B.’s forensic
interviewer, and the mother. Petitioner also testified and indicated that he intended to plead
guilty to his criminal charges. During their testimony, both parents admitted that L.B. was in the
car during the attempted robbery. Ultimately, the circuit court adjudicated petitioner as an
abusing parent. Petitioner moved for a post-adjudicatory improvement period and the DHHR
objected. The circuit court took the motion under advisement and scheduled a dispositional
hearing.

        In August of 2016, the circuit court held a dispositional hearing and heard evidence from
the DHHR and petitioner. According to the DHHR, petitioner was sentenced to a “not less than
ten years” of incarceration as a result of his guilty plea. As such, petitioner was unable to
participate in an improvement period and would be unable to participate in the near future.
Petitioner testified that his parole date was October of 2017. Petitioner also admitted to prior
CPS involvement in which he received services and complied with those services. The circuit
court reasoned that petitioner would not be released from incarceration in a reasonable time and
that his inability to participate in his improvement period caused there to be no reasonable
likelihood that the conditions of abuse and neglect could be substantially corrected in the near
future. However, the circuit court considered that the mother was currently participating in an
improvement period and that it was not necessary to terminate petitioner’s parental rights if she
were able to improve and properly care for the children. Accordingly, the circuit court terminated
petitioner’s custodial rights only and noted that if the mother would later fail to improve, “it
would be in the best interest of the children that the [circuit] court terminate [petitioner’s]
parental rights.”

        The circuit court continued to hold review hearings for the mother throughout 2017 and
up until March of 2018. According to the parties, the mother completed a substance abuse
rehabilitation program, but relapsed in November of 2017 and became uncooperative with the
DHHR. The mother eventually relinquished her parental rights in March of 2018.

        Petitioner was released on parole in November of 2017. However, petitioner was charged
with a DUI in February of 2018 and incarcerated as a result. Petitioner was still incarcerated
when the circuit court held the final dispositional hearing in March of 2018. Petitioner testified
that he felt confident that he would be released from incarceration in two weeks, but that he
could be held longer. Petitioner’s cousin testified that petitioner visited with the children a few
times since he was released on parole and that visitation went well when it occurred. Ultimately,
the circuit court relied on its prior findings that petitioner was unable to participate in a family
case plan since the filing of the petition and found that petitioner was again unable to participate

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due to his incarceration. Accordingly, the circuit court terminated his parental rights in its April
3, 2018, order. Petitioner now appeals that order.2

              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, this Court
finds no error in the proceedings below.

       On appeal, petitioner argues that the circuit court erred in denying his motion to require
in court testimony from L.B. In support, petitioner argues that the only relevant evidence could
be obtained through L.B.’s statement and, therefore he was entitled to have L.B. testify.
Additionally, petitioner asserts that, pursuant to West Virginia Code § 62-6B-3(d), the circuit
court was required to obtain an expert opinion as to the emotional harm L.B. might have suffered
through testifying and that the failure to do so violated his due process rights.3 However,
                                                            
              2
        The mother voluntarily relinquished her parental rights. According to the parties, the
permanency plan for the children is adoption in their current relative foster placement. Further,
the parents are allowed post-termination visitation at the discretion of the current foster
placement.
              3
                  West Virginia Code § 62-6B-3(d) provides:

              In determining whether to allow a child witness to testify through live, closed-
              circuit television the court shall appoint a psychiatrist or a licensed psychologist
              with at least five years clinical experience who shall serve as an advisor or friend
              of the court to provide the court with an expert opinion as to whether, to a
              reasonable degree of professional certainty, the child witness will suffer severe
              emotional harm, be unable to testify based solely on being in the physical
              presence of the defendant while testifying and that the child witness does not
              evidence signs of being subjected to undue influence or coercion. The opinion of
              the psychiatrist or licensed psychologist shall be filed with the circuit court at
 
                                                                                         (continued . . . )
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petitioner fails to address Rule 8(a) of the West Virginia Rules of Procedure for Child Abuse and
Neglect Proceedings, which provides that “there shall be a rebuttable presumption that the
potential psychological harm to the child outweighs the necessity of the child’s testimony and the
court shall exclude this testimony if the potential psychological harm to the child outweighs the
necessity of the child’s testimony.” On appeal, as in the proceedings below, petitioner makes no
effort to argue that the necessity of the child’s testimony outweighs the potential psychological
harm that the child could suffer. Petitioner asserts no specific evidence that L.B.’s testimony
would provide. Additionally, petitioner admitted that L.B. was present for the robbery during his
testimony. Further, Rule 8(a) provides that the child’s testimony may be excluded if “the
equivalent evidence can be procured though other reasonable efforts.” The forensic interviewer
of the child testified regarding the child’s statement and demeanor at the time of her interview
and petitioner was afforded an opportunity to cross-examine the interviewer. Therefore, because
of the child’s statement, the circuit court’s found the child’s direct testimony was not necessary
because it was easily available through the forensic interviewer. Accordingly, we find that the
circuit court did not err in denying petitioner’s motion to require L.B to testify.

        Petitioner also argues that the circuit court erred in denying his motion for an
improvement period and subsequently terminating his parental rights. We begin by noting that
the decision to grant or deny an improvement period rests in the sound discretion of the circuit
court. See In re M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia law
allows the circuit court discretion in deciding whether to grant a parent an improvement
period.”); Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (“It is within
the court’s discretion to grant an improvement period within the applicable statutory
requirements.”). We have also held that a parent’s “entitlement to an improvement period is
conditioned upon the ability of the [parent] to demonstrate ‘by clear and convincing evidence,
that the [parent] is likely to fully participate in the improvement period. . . .’” In re Charity H.,
215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004).

        The circuit court did not err in denying petitioner’s motion for an improvement period
because he could not participate in an improvement period. Petitioner was incarcerated since the
outset of the case and unable to meaningfully participate in services with the DHHR. Further, the
record contains no evidence that petitioner attempted to begin services with the DHHR once he
was released on parole. Petitioner failed to present clear and convincing evidence that he would
substantially participate in an improvement period. Therefore, the circuit court did not err in
denying his motion for an improvement period.

       Additionally, the circuit court did not err in terminating petitioner’s parental rights. West
Virginia Code § 49-4-604(b)(6) provides that a circuit court may 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 welfare of the
                                                                                                                                                                                                
              least thirty days prior to the final hearing on the use of live, closed-circuit
              television and the defendant shall be allowed to review the opinion and present
              evidence on the issue by the use of an expert or experts or otherwise.
               



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children. Additionally, West Virginia Code § 49-4-604(c)(3) provides that no reasonable
likelihood that the conditions of neglect or abuse can be substantially corrected exist when the
“abusing parent . . . [has] not responded to or followed through with a reasonable family case
plan or other rehabilitative efforts[.]” As mentioned above, petitioner was incarcerated and
unable to participate in a case plan. Although petitioner asserted that he attended classes while
incarcerated, he continued to exhibit the same behaviors that led to the filing of the petition. For
example, despite being under the supervision of parole, petitioner was found to be driving under
the influence of alcohol and arrested. Petitioner characterizes this parole violation as a small
mistake, but the practical effect was his incarceration and further separation from his children.
Finally, we have previously held that

               “[c]ourts are not required to exhaust every speculative possibility of
       parental improvement . . . where it appears that the welfare of the child will be
       seriously threatened, and this is particularly applicable to children under the age
       of three years who are more susceptible to illness, need consistent close
       interaction with fully committed adults, and are likely to have their emotional and
       physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re
       R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4. Despite petitioner’s assertions that he
wanted to remedy the conditions of abuse and neglect, his continuous criminal activity resulted
in his incarceration and limited his ability to parent his children. In consideration of this pattern
of activity, we find that the circuit court did not err in terminating petitioner’s parental rights.

        For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 3, 2018, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: October 19, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating.
 




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