                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS
                                                                                  FILED
In re R.A.-1, L.A, and M.C.                                                   March 15, 2019
                                                                             EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
No. 18-0943 (Hampshire County 17-JA-86, 17-JA-87, and 17-JA-88)                  OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Mother A.C., by counsel David C. Fuellhart, III, appeals the Circuit Court of
Hampshire County’s July 31, 2018, order terminating her parental rights to R.A.-1, M.C., and
L.A.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”), Marla Zelene Harman, 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 her
motion for a post-dispositional improvement period, terminating her parental rights, and denying
her post-termination visitation.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 November of 2017, the DHHR filed a petition alleging that petitioner’s step-daughter,
G.A., was sexually abused by her father, R.A.-2, and that petitioner failed to protect her children
from potential abuse. G.A.’s biological mother is R.A.-2’s ex-wife, J.A. Although, G.A. did not

       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, as a child and petitioner’s husband
share the same initials, we refer to them as R.A.-1 and R.A.-2, respectively, throughout this
decision.
       2
         Petitioner refers to a “dispositional improvement period” in her assignment of error.
However, West Virginia Code § 49-4-610 provides for preadjudicatory, post-adjudicatory, and
post-dispositional improvement periods. Considering the circumstances of these proceedings and
petitioner’s argument, we assume petitioner’s assignment of error refers to a post-dispositional
improvement period and address it as such.



                                                1
live with petitioner and R.A.-2, the DHHR alleged that G.A. visited their home regularly with
her mother, J.A. The DHHR alleged that petitioner found R.A.-2 and G.A. in the bathroom
during an incident of sexual abuse, but did not disclose the incident to the police or the DHHR.
According to the DHHR, R.A.-2 continued to have consistent contact with G.A. following the
abuse. Petitioner waived her preliminary hearing.

        The circuit court held three adjudicatory hearings in January, March, and April of 2018.
The forensic interview of G.A. was admitted into evidence without objection. The circuit court
found that the forensic interview of G.A. was reliable, credible, and probative as to the question
of whether the child was sexually abused by R.A.-2. In the interview, G.A. stated that she first
disclosed to her friend that someone inappropriately touched her. G.A. described a time that
R.A.-2 tickled her to the point that she urinated on herself and then he took her inside his home
to change her clothes. G.A. was asked what part of the body she was touched on and she
responded by circling the vagina on an anatomically correct female drawing. The interviewer
asked G.A. what she was touched with and she circled the penis on a male drawing. The circuit
court found that G.A. stated that “she felt horrible, she felt sick, and she told him to stop.” When
the interviewer asked what made it stop, the child stated that petitioner “walked in and ‘caught
him.’” The circuit court noted that the child indicated she told her mother, J.A., but “she didn’t
say anything about it.” The circuit court further noted that the child “had a difficult time
discussing what happened to her in the Child First Interview and broke out in a rash and/or hives
during the process.”

        According to the circuit court’s findings, petitioner testified that, during the “bathroom
incident,” she noted that R.A.-2 and the child were gone for a long time and she became
concerned. She yelled for R.A.-2 inside the home, but heard no response. Eventually, she went
into the bathroom and

       observed the minor child, G.A., sitting on the toilet completely naked; that her
       arms were around [R.A.-2]; that [R.A.-2] was crouched down in . . . front of the
       child; that he had one arm around the child; that his other hand was in . . . front of
       him, but his hand was not visible to her.

Petitioner asked R.A.-2 what he was doing and he stated that he was giving the child a hug.
Petitioner testified that R.A.-2 “looked as if he had seen a ghost, like he jumped out of his skin”
and that G.A. looked terrified. Following that incident, petitioner and J.A. agreed not to allow
R.A.-2 around the children alone. However, petitioner admitted that it was not always possible to
supervise the children while R.A.-2 was around.

       Further, petitioner stipulated to the allegations that she failed to protect the children from
R.A.-2 following the “bathroom incident.” Despite her stipulation, petitioner testified that, while
she did believe that G.A. was sexually abused, she was unsure that R.A.-2 was the person who
abused her. Petitioner explained that she continued to be in a relationship with R.A.-2, but would
end the relationship if it would hurt her chances of receiving custody of her children.

       Ultimately, the circuit court found that G.A.’s “disclosure of sexual abuse was credible
and consistent with the observations of [petitioner], which were to a degree corroborated with

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[J.A.].” The circuit court further found that none of the respondents “could articulate a reason as
to why [G.A.] would in any way fabricate any allegations of sexual abuse” and that there was
“no indication or evidence” that she was coached to make the disclosures. The circuit court
concluded that G.A. was sexually abused by R.A.-2 and that petitioner failed to protect the
children. The circuit court adjudicated petitioner as an abusing parent.

         In July of 2018, the circuit court held the final dispositional hearing. The DHHR
presented evidence to support the termination of petitioner’s parental rights. Petitioner did not
testify. The circuit court found that “[petitioner] remains in a relationship with [r]espondent
[R.A.-2]. She provided no testimony to dispute this fact at the disposition hearing.” Additionally,
the circuit court found that petitioner’s failure to leave the relationship made her stipulation
“disingenuous and incongruous with the best interest and safety of her children” and rendered
her unlikely to fully participate in an improvement period. Finally, the circuit court found that
there was no reasonable likelihood that petitioner could correct the behaviors that warranted the
removal of the children and that termination of petitioner’s parental rights was in the best interest
of the children. The circuit court also denied petitioner post-termination visitation with the
children on the basis that she could not ensure the safety of the children. Accordingly, the circuit
court terminated petitioner’s parental rights by its July 31, 2018, order. Petitioner now appeals
that order.3

       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 her motion for a post-
dispositional improvement period because she demonstrated by clear and convincing evidence
that she would participate in the improvement period. Petitioner asserts that the circuit court’s

       The respective fathers’ parental rights were also terminated. According to the parties, the
       3

permanency plan for the children is adoption in their current foster placement.



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finding that she would not end her relationship with R.A.-2 is contrary to the record. Further,
petitioner argues that the DHHR’s failure to present evidence that petitioner would not comply
with an improvement period lowers the evidentiary burden. We disagree. West Virginia Code §
49-4-610(3)(B) provides that 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.” 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 . . . .”).

        The circuit court did not err in denying petitioner’s motion for a post-dispositional
improvement period because she failed to prove by clear and convincing evidence that she would
participate in the improvement period. Although petitioner stipulated to the allegations that she
failed to protect her step-daughter from R.A.-2’s sexual abuse, she failed to acknowledge that a
continued relationship with R.A.-2 would place her own children in danger. 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)). According to the record, petitioner considered
ending her relationship with R.A.-2 only if the relationship would damage her chances that the
children would return to her custody. Petitioner clearly did not realize that R.A.-2’s conduct was
harmful to her children and could not be corrected. Petitioner testified that the relationship
continued during the April of 2018 adjudicatory hearing and never presented any evidence that
she sought to end the relationship thereafter. The record fully supports the circuit court’s finding
that petitioner continued to place her children in danger. Further, petitioner’s argument that the
DHHR’s failure to present evidence as to her inability to participate in an improvement period
lowered her evidentiary burden is not supported by the law of this State or this Court’s prior
holdings. West Virginia Code § 49-4-610 clearly provides that the parent must demonstrate “by
clear and convincing evidence” that she is likely to participate in an improvement period.
However, in this case, petitioner demonstrated an inability to grasp the danger that R.A.-2
presented to her children. Accordingly, we find that the circuit court did not err in denying
petitioner’s motion for a post-dispositional improvement period.

        Second, petitioner argues that the circuit court’s finding that that there was no reasonable
likelihood that the conditions of abuse and neglect could be substantially corrected in the near
future was erroneous and not supported by the record. Petitioner asserts that a temporary
guardianship, pursuant to West Virginia Code § 49-4-604(b)(5), would have given her an
opportunity to participate in services with the DHHR and remedy the conditions of abuse and

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neglect. We find no merit to petitioner’s argument. West Virginia Code § 49-4-604(b)(6)
provides, in relevant part, 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 children’s welfare. West
Virginia Code § 49-4-604(c) provides, in relevant part, that there is no reasonable likelihood the
conditions of abuse and neglect can be substantially corrected when “the abusing adult or adults
have demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own
or with help.”

        The circuit court properly found that there was no reasonable likelihood that petitioner
could substantially correct the conditions of abuse and neglect based on petitioner’s failure to
acknowledge the danger in her continued relationship with R.A.-2. Despite clear and convincing
evidence that G.A. was sexually abused by R.A.-2, petitioner took no action to leave her
relationship with R.A.-2. Even more concerning, petitioner regressed from her admission that she
failed to protect her children from R.A.-2 to the point that she no longer believed R.A.-2 sexually
abused G.A. Petitioner expressed her desire to continue that relationship unless it hurt her
chances that the children would be returned to her. She did not express any desire to protect her
children from potential sexual abuse. Accordingly, we find no error in 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.

        Further, the circuit court properly found that termination was necessary for the welfare of
the children. Petitioner’s ongoing relationship with R.A.-2 exposed her children to the threat of
sexual abuse, and petitioner could not show that she would take appropriate action to provide for
their safety. We have also held as follows:

                “Termination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [West Virginia
       Code § 49-4-604] . . . 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)] . . . that conditions of neglect or abuse
       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). The circuit court’s findings
support the termination of petitioner’s parental rights. Contrary to petitioner’s argument in
support of temporary guardianship, the circuit court did not abuse its discretion by terminating
petitioner’s parental rights rather than imposing a less-restrictive dispositional alternative.
Accordingly, we find petitioner is entitled to no relief in this regard.

         Finally, petitioner argues that the circuit court erred in denying her post-termination
vitiation with the children. Petitioner asserts there was no evidence presented to prove that
visitation would not be in the children’s best interest and petitioner testified that she would leave
her relationship with R.A.-2, which would remove any danger to the children. We find no merit
to petitioner’s argument.



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                “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). Although petitioner relies on
her testimony that she would end the relationship with R.A.-2, she presented no evidence that she
took any steps to do so. Further, petitioner presented no evidence that visitation would be in the
best interest of the children, that a close emotional bond existed, or that continued contact would
not be detrimental to the children’s well-being. Accordingly, we find no error in the circuit
court’s denial of post-termination visitation between petitioner and the children.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 31, 2018, order is hereby affirmed.

                                                                                         Affirmed.

ISSUED: March 15, 2019


CONCURRED IN BY:

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




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