                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                   FILED
                                                                                 November 26, 2013
In Re: K.R., A.R.-1, & A.R.-2                                                 RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
No. 13-0814 (Monongalia County 11-JA-7 through 11-JA-9)


                                 MEMORANDUM DECISION

        Petitioner Mother, by counsel Christopher Miller, and Petitioner Father, by counsel Olivia
S. Harris DeVall, jointly appeal the Circuit Court of Monongalia County’s June 10, 2013 order
terminating their parental rights to K.R., A.R.-1, and A.R.-2.1 The West Virginia Department of
Health and Human Resources (“DHHR”), by counsel Lee A. Niezgoda, filed its response in
support of the circuit court’s order. The guardian ad litem, DeAndra Burton, filed a response on
behalf of the children supporting the circuit court’s order. On appeal, petitioners allege that the
circuit court erred (1) in finding that the DHHR made reasonable efforts to provide services and
prevent removal of the children from the home, and (2) in terminating their 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Upon numerous referrals dating back to 2005, the DHHR filed an abuse and neglect
petition against petitioners in 2008, alleging sexual abuse and neglect due to lack of food,
supervision, and the conditions in the home. Before filing the prior petition, the DHHR had
offered the family numerous parenting and financial services, which the family refused.
Following a successfully completed improvement period during the prior abuse and neglect
proceeding, the children were returned to petitioners in 2009. Subsequently, the DHHR continued
to receive referrals on the family alleging that petitioners’ adult son was back in the home. Two of
the older girls, then ages twelve and fifteen, were interviewed at the Child Advocacy Center in
October of 2010, and disclosed sexual abuse by their two older brothers, both adults. In response,
the DHHR entered a safety plan with the family, whereby petitioners agreed to keep their adult
sons away from their children.



       1
        Because two children share the same initials, they will be referred to as A.R.-1 and A.R.­
2 throughout this memorandum decision.
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        In March of 2011, the DHHR made an unannounced visit to the home and discovered one
of the adult sons, J.R., staying there, if not living in the home on a permanent basis. On April 1,
2011, the DHHR filed a petition to obtain custody of the children, after which petitioners entered
a stipulated adjudication and J.R. made a statement to police admitting the sexual abuse. During
the proceedings below, petitioners were granted both post-adjudicatory improvement periods and
dispositional improvement periods. Additionally, the parents voluntarily relinquished their
parental rights to one child, H.R., and another, C.R., reached adult status during the pendency of
the abuse and neglect proceedings.2 On January 11, 2013, the circuit court held a dispositional
hearing, after which the petitioners’ parental rights were terminated. It is from the resultant 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).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

        Upon our review, the Court finds no error in the circuit court’s findings regarding the
DHHR’s reasonable efforts to provide services and prevent the children’s removal from the home,
or in the termination of petitioners’ parental rights. To begin, the record is clear that the DHHR
has been offering petitioners services since at least 2005, though petitioners did not always accept
them. During the instant proceedings, the circuit court noted that petitioners participated in
services with Dr. Laura Capage of the Monongalia Child Advocacy Center, and that the services
began in the Fall of 2010. Further, petitioners were provided with parenting and adult life skills
education, as well as supervised visitation with the children. While petitioners argue that the
circuit court’s findings regarding the DHHR’s reasonable efforts are erroneous because the
DHHR failed to continue family therapy, the Court disagrees.




       2
         The circuit court made no rulings regarding either of these children in the order being
appealed. As such, this memorandum decision addresses only the circuit court’s termination of
petitioners’ parental rights to K.R., A.R.-1, and A.R.-2.
                                                      2
        Petitioners were provided therapy, as were the children. However, the therapist for A.R.-1
and A.R.-2 testified that the children were not ready for family therapy at the time of disposition.
Upon our review, the Court finds that the circuit court committed no error in finding that the
DHHR made reasonable efforts to provide services and prevent the children’s removal from the
home. As more fully addressed below, the record is clear that a lack of family therapy was not the
basis for termination of parental rights. Instead, the circuit court relied upon petitioners’ inability
to implement what they learned through services and their failure to adequately provide for the
children. Further, the circuit court was not bound to order services that were not in the children’s
best interests, as stated in testimony from the children’s therapist. As such, petitioners’ argument
regarding a lack of family therapy is without merit.

        As to termination of petitioners’ parental rights, the Court finds no error in this regard
because the circuit court found that there was no reasonable likelihood that petitioners could
substantially correct the conditions of abuse or neglect in the near future. As set forth in West
Virginia Code § 49-6-5(b)(3), such conditions exist in situations where an abusing parent has
failed to follow through with a family case plan or other rehabilitative efforts designed to reduce
or prevent abuse. The circuit court heard testimony that petitioners failed to implement the
training provided through services and further found that, during their improvement periods,
petitioners exposed the children to past abusers and also provided cigarettes and alcohol to at least
one of their minor children. As such, the evidence supported the circuit court’s findings in regard
to the continuing conditions of abuse and neglect.

        While petitioners argue that the circuit court did not make a specific finding that
termination was necessary for the children’s welfare, the record is clear that such a finding would
be supported by substantial evidence. Specifically, the circuit court did find that returning the
children to petitioners could expose them to continued abuse or neglect, as evidenced by
“concerns regarding the ability of [petitioners] to ensure that the children are provided for
financially, that they will ensure that the children will attend school, and that the children will be
protected from potential abusers.” These concerns stemmed from ample testimony from service
providers, as well as testimony from the two children who were dismissed from the proceeding
regarding their sexual abuse perpetrated by their siblings. As such, the Court finds no error in the
circuit court’s failure to include a specific finding that termination of petitioners’ parental rights
was necessary for the children’s welfare, because the same is apparent from the evidence below.
Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are instructed to terminate parental
rights upon these findings, and we find no error in the termination of petitioners’ parental rights.

       For the foregoing reasons, we find no error in the decision of the circuit court and its June
10, 2013 order is hereby affirmed.


                                                                                            Affirmed.




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ISSUED: November 26, 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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