                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS

                                                                                     FILED
In re D.R. and R.R.-1
                                                                                November 19, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0496 (Kanawha County 16-JA-224 and 16-JA-225)                             SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Father R.R.-2, by counsel Sandra K. Bullman, appeals the Circuit Court of
Kanawha County’s May 1, 2018, order terminating his parental rights to D.R. and R.R.-1.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M.
Parsley, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Elizabeth G. Kavitz, filed a response on behalf of the children also in support of
the circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating
his parental rights without first granting him a post-adjudicatory improvement period,
adjudicating him based upon testimony previously presented when his newly-appointed counsel
was not present, and denying him post-termination visitation.

        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 2016, the DHHR filed a child abuse and neglect petition against petitioner and
the mother. The DHHR alleged that the family had a long history of drug use and lack of
supervision of the children. Specifically, the DHHR noted that the mother tested positive for
opiates upon giving birth to the youngest child and that the parents operated a mobile
methamphetamine laboratory out of their Chevrolet Blazer in the children’s presence. Upon
speaking with a DHHR worker, petitioner denied the allegations and refused to submit to any
drug screens. The DHHR concluded that petitioner failed to protect the children, adequately
supervise them, or provide them with the necessary food, clothing, and housing. As a result, the
custody of the children was transferred to the DHHR.
                                                            
              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). Additionally, because one of the children and petitioner
share the same initials, we will refer to them as R.R.-1 and R.R.-2, respectively, throughout the
memorandum decision.


                                                                   1
 
        The circuit court held an adjudicatory hearing in June of 2016, wherein petitioner
requested a preadjudicatory improvement period. The circuit court granted petitioner’s request
and, at some point, permitted the children to be placed back in the parents’ physical custody. As
part of the terms and conditions of the preadjudicatory improvement period, petitioner was
ordered to participate in parenting classes and allow drop-in visits by the DHHR.

        Subsequently, the children were again removed from the parents’ care and they were
provided with visitation, including overnight weekend visits. However, the mother was unable to
comply with her improvement period and her parental rights were ultimately terminated in May
of 2017. The father was eventually given physical custody of the children and was ordered not to
have either direct or indirect contact with the mother.

        In August of 2017, the DHHR filed an amended petition alleging that petitioner allowed
the children to be with the mother, unsupervised, against court order and despite the prior
termination of her parental rights. Specifically, the DHHR alleged that the oldest child reported
that his mother was living in the home and that petitioner hid her in the woods when Child
Protective Services (“CPS”) came to the home. After learning this information, a CPS worker
went to petitioner’s home and found a woman at the residence who denied being the mother of
the children and later fled the scene. Petitioner arrived at the home during the incident and also
denied that the woman was the mother of the children, but then ran into a neighbor’s home to
avoid further conversation with the CPS worker after being confronted with the oldest child’s
disclosure. The neighbor confirmed that the woman who fled was the mother of the children.

        In October of 2017, the DHHR received a referral and, upon investigating, determined
that petitioner had left the children in the paternal grandmother’s home, which was previously
determined to be unsuitable because it had been condemned and was roach infested. The paternal
grandmother stated that she had not heard from petitioner in approximately one week. The
DHHR removed the children from the home at that time.

        The circuit court held a dispositional hearing in January of 2018, wherein the DHHR
presented the testimony of two CPS workers. The workers testified that petitioner continued to
allow the mother around the children in violation of court order. One worker testified regarding
the August of 2017 incident in which she found the mother in the home and the parents lied
about her identity. The other worker testified that the DHHR had twice tried to place the children
in petitioner’s custody only to subsequently remove them due to his noncompliance. Testimony
established that petitioner received services for nearly two years and no other services were
available to help him improve his parenting skills.

        Petitioner testified that he lied about the mother being in his home because she told him
she was pregnant and he was scared. Petitioner stated that he always provided for the children
financially and quit his job working away from home to stay with the children. Petitioner
believed the children were lying regarding their contact with the mother and continued to deny
any wrongdoing, stating “I could sit up here and talk probably for the next two days about how
wrongly I feel I’ve been done throughout this case.” Ultimately, the circuit court terminated
petitioner’s parental rights. Petitioner was granted new counsel for the purpose of appeal.


                                                2
 
Petitioner’s new counsel discovered that petitioner had not been adjudicated during the
proceedings and the circuit court set aside the dispositional order in February of 2018.

       In March of 2018, the circuit court held an adjudicatory hearing wherein the DHHR
moved the circuit court to consider all prior evidence submitted for adjudicatory purposes.
Counsel for petitioner objected on the basis that she was not involved in the prior proceedings
and was not present to hear the testimony. Moreover, petitioner’s counsel alleged that no
substantive testimony had been taken. The circuit court granted the DHHR’s motion and
adjudicated petitioner as an abusing parent based upon his failure to complete his
preadjudicatory improvement period, failure to protect the children from the mother, and
allowing the mother to have contact with the children against court order.

        The circuit court held a dispositional hearing in April of 2018. Petitioner failed to attend
but was represented by counsel. The DHHR moved the circuit court to consider all prior
evidence, which the circuit court granted without objection. The DHHR presented the testimony
of a CPS worker who testified that petitioner was in contact with the mother again, against court
order. After hearing evidence, the circuit court found that there was 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. It is from the May 1, 2018, dispositional order terminating his
parental rights that petitioner appeals.2

              The Court has previously established the following standard of review in cases such as
this:

                      “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).

       On appeal, petitioner first argues that the circuit court erred in adjudicating him based
upon testimony presented earlier in the proceedings when his newly-appointed counsel was not
present and did not have access to the hearing transcripts. Petitioner states that he was entitled to

                                                            
              2
        The parents’ parental rights were terminated during the underlying proceedings. The
children were placed with a relative and the permanency plan for the children is adoption therein.
                                                               3
 
an adequate defense, which could not occur when his counsel did not have knowledge of the
evidence relied on by the state. By being adjudicated solely based upon prior testimony,
petitioner avers that his due process rights were denied. We disagree.

        First, petitioner cites to no authority in support of his argument. Second, petitioner’s
argument is without merit as he was represented by counsel at every stage of the proceedings,
testimony was properly taken during prior hearings, and petitioner’s then newly-appointed
counsel had access to the court file. Petitioner’s prior counsel was present to cross-examine
witnesses presented by the DHHR and presented four witnesses at the hearing in January of
2018. After petitioner’s parental rights were untimely terminated, his newly-appointed counsel
gained access to the record which included substantial information on petitioner’s progress
throughout the proceedings, including case summaries and prior orders. His counsel raised issue
with the circuit court’s failure to adjudicate petitioner and the circuit court set aside its prior
order to properly adjudicate petitioner at a hearing in March of 2018, where petitioner’s counsel
was provided the opportunity to present further evidence but did not.

       Moreover, the record establishes that there was sufficient evidence upon which to
adjudicate petitioner as an abusing parent. We have previously noted as follows:

       At the conclusion of the adjudicatory hearing, the 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. . . . The
       findings must be based upon conditions existing at the time of the filing of the
       petition and proven by clear and convincing evidence.

In re F.S., 233 W.Va. 538, 544, 759 S.E.2d 769, 775 (2014). 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.” Id. at 546,
759 S.E.2d at 777 (citing Brown v. Gobble, 196 W.Va. 559, 564, 474 S.E.2d 489, 494 (1996)).
However, “the clear and convincing standard is ‘intermediate, being more than a mere
preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as
in criminal cases.’” F.S., 233 W.Va. at 546, 759 S.E.2d at 777 (quoting Cramer v. W.Va. Dep’t
of Highways, 180 W.Va. 97, 99 n.1, 375 S.E.2d 568, 570 n.1 (1988)).

       Pursuant to West Virginia Code § 49-1-201, a

       “‘[n]eglected child’ means a child: (A) [w]hose physical or mental health is
       harmed or threatened by a present refusal, failure or inability of the child’s parent,
       guardian, or custodian to supply the child with necessary food, clothing, shelter,
       supervision, medical care, or education, when that refusal, failure, or inability is
       not due primarily to a lack of financial means on the part of the parent, guardian,
       or custodian[.]”

Here, the record, even apart from the hearing transcripts, establishes that petitioner was ordered
not to have direct or indirect contact with the mother. However, petitioner continued to contact
the mother and the oldest child reported that she was living in the home with them. CPS


                                                 4
 
responded to the house and found the mother present. Petitioner lied about the mother’s identity
and fled to a neighbor’s house to avoid questioning. Further, petitioner allowed the children to be
in the paternal grandmother’s home, in violation of court order. The home was condemned, dirty,
and roach infested, yet petitioner left the children there for nearly a week in October of 2017 and
could not be contacted. As such, petitioner failed to provide the children with the proper
supervision and shelter and the circuit court properly adjudicated him based upon the evidence
presented throughout the proceedings.

        To the extent petitioner argues that the circuit court should have required the DHHR to
re-present the prior testimony, we note that

                      “[w]here it appears from the record that the process established by the
              Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes
              for the disposition of cases involving children [alleged] to be abused or neglected
              has been substantially disregarded or frustrated, the resulting order . . . will be
              vacated and the case remanded for compliance with that process and entry of an
              appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
              558 S.E.2d 620 (2001).

Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). However, the record does not
reveal that the underlying proceedings were substantially disregarded or frustrated. In light of the
substantial evidence of record upon which to adjudicate petitioner, his constant representation,
and his opportunity to cross-examine witnesses and present evidence, we find that he is entitled
to no relief in this regard.

        Next, petitioner argues that the circuit court erred in terminating his parental rights
without first granting him a post-adjudicatory improvement period.3 According to petitioner, he
successfully complied with his preadjudicatory improvement period such that the children were
returned to his care for a period of time. He avers that the issues that arose and led to his
adjudication and ultimate termination of parental rights were the result of being a single parent
with limited resources, which could have been remedied with additional services. We find
petitioner’s argument to be meritless.

       Pursuant to West Virginia Code 49-4-610(2)(D), the circuit court may grant a post-
adjudicatory improvement period if

              [s]ince the initiation of the proceeding, the [parent] has not previously been
              granted any improvement period or the [parent] demonstrates that since the initial
              improvement period, the [parent] has experienced a substantial change in
              circumstances. Further, the [parent] shall demonstrate that due to that change in


                                                            
              3
         In support of his argument, petitioner asserts that the appropriate remedy for his failure
to follow court orders was a contempt action rather than termination of parental rights. However,
petitioner cites to no authority to support his argument and, as such, we decline to address the
argument on appeal.
                                                               5
 
       circumstances the [parent] is likely to fully participate in a further improvement
       period[.]

        In his brief on appeal, petitioner fails to discuss whether he experienced a substantial
change in circumstances since he was granted his preadjudicatory improvement period. Further,
the record demonstrates that he was not likely to fully participate in a further improvement
period due to his noncompliance and refusal to acknowledge the conditions of abuse. During the
underlying proceedings, petitioner was granted a preadjudicatory improvement period in June of
2016 and received services until his parental rights were terminated in April of 2018. Despite
such an extensive improvement period, petitioner continued to allow the children around the
mother and left the children at the paternal grandmother’s house, in violation of court order. At
the time of the January of 2018 dispositional hearing, petitioner failed to acknowledge the
conditions of abuse, claimed his children were lying, and blamed the DHHR for his situation,
stating “I could sit up here and talk probably for the next two days about how wrongly I feel I’ve
been done throughout this case.”

       We have previously held,

       [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)). Despite having ample time and resources,
petitioner continued to disobey court orders and failed to acknowledge the conditions of abuse,
rendering a post-adjudicatory improvement period futile. Therefore, the circuit court did not err
in denying him the same.

        We further find no error in the circuit court’s decision to terminate petitioner’s parental
rights. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate
parental rights upon findings that there is no reasonable likelihood the conditions of abuse and
neglect can be substantially corrected in the near future and when necessary for the children’s
welfare. West Virginia Code § 49-4-604(c)(3) sets forth that a situation in which there is no
reasonable likelihood that the conditions of abuse or neglect can be substantially corrected
includes one in which “[t]he abusing parent . . . ha[s] not responded to or followed through with
a reasonable family case plan or other rehabilitative efforts[.]”

        Here, the record demonstrates that petitioner was granted a preadjudicatory improvement
period in June of 2016 and offered several services, but failed to comply with the circuit court’s
orders prohibiting contact with the mother and placement of the children in the paternal
grandmother’s condemned home. Petitioner complied with his services sufficiently such that the
children were placed with him twice throughout the proceedings, but the children were
subsequently removed due to petitioner’s inability to comply with these orders. The evidence


                                                6
 
discussed above established that petitioner allowed the mother in the home, lied about her
identity to CPS workers, and left the children in the paternal grandmother’s condemned home for
approximately one week. Petitioner did so despite numerous clear instructions, accused CPS of
wrongfully dealing with him, and testified that the oldest child was lying about his disclosure
regarding the mother. As such, we find that the circuit court did not err in finding that there was
no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the
near future as he clearly did not respond to rehabilitative efforts over the course of the preceding
two years.

         Petitioner lastly argues that the circuit court erred in denying him post-termination
visitation with the children. According to petitioner, the record demonstrates that he did not
commit any “acts of abuse” against the children, had a close relationship with them, and enjoyed
spending time with them. Petitioner argues that the children should be permitted visitation with
him if they so desire. We find petitioner’s argument to be unpersuasive.

                “When parental rights are terminated due to neglect or abuse, the circuit
       court may nevertheless in appropriate cases consider whether continued visitation
       or other contact with the abusing parent is in the best interest of the child. Among
       other things, the circuit court should consider whether a close emotional bond has
       been established between parent and child and the child’s wishes, if he or she is of
       appropriate maturity to make such request. The evidence must indicate that such
       visitation or continued contact would not be detrimental to the child’s well being
       and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
       446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002). Here, petitioner failed to
establish that post-termination visitation would be in the best interests of the children. Petitioner
failed to properly care for or supervise the children by allowing the mother to contact them and
by leaving them in a condemned home. These actions resulted in the children’s removal from
petitioner’s care during the preadjudicatory improvement period. Further, petitioner failed to
demonstrate that his children, ages six and two, are of appropriate maturity to make a request for
visitation. As such, we find that the circuit court did not abuse its discretion in denying petitioner
post-termination visitation as the evidence supports a finding that it would not be in the
children’s best interests.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 1, 2018, order is hereby affirmed.



                                                                                           Affirmed.


ISSUED: November 19, 2018




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CONCURRED IN BY:

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




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