                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS

                                                                                  FILED
                                                                                October 1, 2013
In Re: B.B., J.B., H.B., and L.M.                                           RORY L. PERRY II, CLERK

                                                                          SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA

No. 13-0432 (Calhoun County 12-JA-72 through 12-JA-75)

                                MEMORANDUM DECISION

        Petitioner Father filed this appeal, by counsel Drannon L. Adkins, from the Circuit Court
of Calhoun County, which terminated his parental rights to the subject children by order entered
on April 4, 2013. The guardian ad litem for the children, Tony Morgan, has filed a response
supporting the circuit court’s order. The Department of Health and Human Resources
(“DHHR”), by its attorney Lee A. Niezgoda, has also filed a response in support of the circuit
court’s order. Petitioner contends that the circuit court’s adjudication of him as an abusive and
neglectful parent was based on insufficient evidence and that it erroneously denied his motion for
a post-adjudicatory improvement period.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        In December of 2012, the DHHR filed its petition initiating this abuse and neglect case.
The petition alleged that petitioner and the children’s mother abused and neglected the children
through excessive punishment, exposure to domestic violence, and exposure to the use of illicit
substances. In January of 2013, the DHHR filed an amended petition, adding allegations that the
oldest child, B.B., had been sexually abused multiple times by petitioner and that her mother
knew of at least one of these incidents, but failed to protect B.B. During the course of these
proceedings, the circuit court held an in-camera hearing with B.B. and subsequently adjudicated
petitioner and the children’s mother as abusive and neglectful parents. No improvement periods
were granted in this case. Following a dispositional hearing, the circuit court entered an order
terminating both parents’ parental rights, from which Petitioner Father now 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


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       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).

        Petitioner raises two assignments of error on appeal. First, petitioner argues that the
circuit court erred in finding that there was sufficient credible evidence to support adjudicating
him as an abusive and neglectful parent. Petitioner asserts that, because child B.B.’s testimony
was inconsistent and unbelievable, it lacks credibility. Second, petitioner argues that the circuit
court erroneously denied him a post-adjudicatory improvement period. Petitioner asserts that
because his adjudication was based on insufficient evidence of sexual abuse, the circuit court
erred in finding that the DHHR was not required to make reasonable efforts to preserve the
family. Accordingly, petitioner argues that he should have received services through an
improvement period.

        Upon our review of the record, we find no abuse of discretion or error by the circuit
court. First, our review reflects that there was sufficient evidence to support the circuit court’s
findings and conclusions of abuse and neglect. As provided in West Virginia Code § 49-1-3,
children of abuse and neglect include those children whose health and welfare have been
threatened or harmed by domestic violence, excessive punishment, sexual abuse, or emotional
abuse. The transcript of B.B.’s in-camera testimony provides details of petitioner’s sexual abuse
against her, her mother’s knowledge of this abuse, and of her fear of petitioner. B.B. also
described the drug use, emotional abuse, and excessive punishment that occurred in the home
and in the presence of her and her siblings. On appeal, petitioner only argues against the sexual
abuse allegations, but the record indicates that the circuit court based its adjudicatory order on
other conditions of abuse and neglect as well.

        Second, with regard to the circuit court’s denial of an improvement period, the record
reflects that petitioner’s motion for an improvement period generally asserted that he “corrected
the issues” that existed at the inception of the abuse and neglect case, yet he did not acknowledge
the gravity of these issues nor did he demonstrate how he supposedly corrected them or would
substantially comply with terms of an improvement period. No other evidence has been
submitted in the appellate record to support petitioner’s contention that the circuit court erred in
denying him an improvement period. Thus, we find no error or abuse of discretion in the circuit
court’s decision to deny petitioner’s motion for an improvement period. Pursuant to West
Virginia Code § 49-6-12, a parent moving for an improvement period bears the burden of
proving by clear and convincing evidence that he or she will substantially comply with an
improvement period; consequently, the circuit court has the discretion to deny an improvement
period if it finds that this burden has not been met. Further, West Virginia Code § 49-6­
5(a)(7)(A) provides that the DHHR is not required to make reasonable efforts to preserve the
family if any of the children in the home have been subjected to torture or sexual abuse. As
discussed, we find that the circuit court’s adjudication of petitioner was based on sufficient


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evidence of not only petitioner’s sexual abuse against B.B. but of other abusive and neglectful
conditions in the home.

       We find that the circuit court was presented with sufficient evidence upon which it based
findings that there was no reasonable likelihood to believe that conditions of abuse and neglect
could be substantially corrected in the near future, and that termination was necessary for the
children’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to
terminate parental rights upon such findings.

       For the foregoing reasons, we affirm.

                                                                                       Affirmed.

ISSUED: October 1, 2013

CONCURRED IN BY:

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




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