                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                      FILED
In re B.C. and J.C.-1                                                            February 23, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 17-0810 (Kanawha County 16-JA-155 and 156)                                   SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Father, J.C.-2, by counsel Herbert L. Hively, II, appeals the Circuit Court of
Kanawha County’s July 27, 2017, order terminating his parental rights to B.C. and J.C.-11 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. The guardian ad litem (“guardian”),
Jennifer R. Victor, 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 finding that he failed to
successfully complete his post-adjudicatory improvement period and 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.

        On March 17, 2016, the DHHR filed an abuse and neglect petition against petitioner.
According to the DHHR, there were four prior referrals for the family with safety plans included.
The referrals included allegations that petitioner’s home was unsanitary and that he failed to
provide the children with necessary food, clothing, and supervision. On March 23, 2016, the
circuit court held a preliminary hearing at which a Child Protective Services worker testified that
there was an open case regarding petitioner’s dirty home. She testified that it had been in
“deplorable” condition, but later cleaned somewhat.

        On July 14, 2016, the circuit court held an adjudicatory hearing at which petitioner
stipulated to the allegations of abuse and neglect set forth in the petition. Specifically, he
                                                            
              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 have
the same initials, they will be referred to as J.C.-1 and J.C.-2, respectively, throughout this
memorandum decision.


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stipulated that his home was uninhabitable and unclean at the time of the petition’s filing. The
circuit court granted petitioner a post-adjudicatory improvement period. Additionally, the
guardian noted that the children were developmentally delayed and that B.C. was not fully potty-
trained at age seven, which continued to be a serious issue.

        On October 14, 2016, the circuit court held a review hearing. The DHHR informed the
circuit court that petitioner had not sought out services and requested that the parties have
additional time to comply with the improvement period. On January 19, 2017, the circuit court
held a review hearing. The circuit court found that petitioner’s post-adjudicatory improvement
period had expired, but allowed the DHHR to continue to provide services.

         On March 1, 2017, the circuit court held a dispositional hearing at which the DHHR
recommended termination of petitioner’s parental rights because the parents failed to obtain
suitable housing, provide bedding for the children, and seek housing assistance. A CPS worker
testified that when she began working on petitioner’s case, the house was littered with garbage
and that the floors and windows were dirty. She further testified that the children’s bedroom was
inappropriate as there was only one twin bed for the two children and the bedding was dirty.
Further, according to the DHHR, the parents failed to provide proper discipline regarding the
children’s behavior and the children were developmentally behind in school. Petitioner testified
that he did not neglect his children or think his children were being harmed by having to live in a
dirty home. The circuit court continued the dispositional hearing.

         In June of 2017, the circuit court concluded the dispositional hearing. According to the
DHHR, after the March of 2017 hearing, it offered services to petitioner including parenting,
adult life skills, and supervised visitation services. Further, the DHHR reported that the condition
of the home had regressed and was again uninhabitable. Additionally, petitioner and the mother
had very little interaction with the children at visitations. Petitioner testified that he did not
participate in parenting classes because he did not believe providers could teach him anything he
did not already know about parenting. He further testified that, because he had nieces and
nephews, he knew how to parent his children. The DHHR moved for termination of petitioner’s
parental rights and argued that there was no reasonable likelihood that the conditions of abuse
and neglect could be corrected in the near future and that post-termination visitation should not
be granted. The circuit court noted that petitioner made no progress towards maintaining an
appropriate home for the children and that visits had not gone well, as the parents failed to
properly discipline and interact with the children. The circuit court found that the termination of
petitioner’s parental rights was in the children’s best interests. Ultimately the circuit court
terminated petitioner’s parental rights in its July 27, 2017, order.2 It is from the dispositional
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

                                                            
              2
      The mother’s parental rights were also terminated. According to the guardian and the
DHHR, the children are placed with a relative with a permanency plan of adoption in that home.
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       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 proceedings below.

        First, petitioner argues that the circuit court erred in finding that he did not successfully
complete his post-adjudicatory improvement period. Petitioner alleges that he recognized that his
dirty house was unsuitable for his children to live in and that he “made some corrections to his
house to make it safer for his children.” However, we do not find petitioner’s argument
compelling. Petitioner was granted a six-month post-adjudicatory improvement period and was
offered services for nearly six months after the post-adjudicatory improvement period ended.
While it is true that petitioner made some improvements to his home, the DHHR established that
the condition of the home had regressed by disposition and was again uninhabitable. In addition
to the issues with the home, petitioner also failed to show the ability to properly parent and
discipline his children. Petitioner refused to participate in parenting classes because he did not
believe that he could learn anything he did not already know. Based on this evidence, the circuit
court did not err in finding that petitioner failed to successfully complete his post-adjudicatory
improvement period.

        Petitioner also argues that the circuit court erred in terminating his parental rights.
Petitioner asserts that his parental rights were terminated without an “opportunity to address
parental shortcomings.” We disagree. West Virginia Code § 49-4-604(b)(6) provides 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 child’s welfare. West Virginia Code § 49-4-604(c)(3) provides
that no reasonable likelihood that the conditions of abuse or neglect can be substantially
corrected exists when “[t]he abusing parent . . . ha[s] not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts[.]”
       We have also 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.

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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)). Although petitioner argues that he was denied an
opportunity to address his parental shortcomings, he was granted a six-month post-adjudicatory
improvement period and offered services for nearly six additional months until the dispositional
hearing. Despite being given an improvement period, petitioner refused to acknowledge his
failure to properly parent his children and refused to participate in parenting classes. Further,
petitioner failed to obtain suitable housing, despite services offered to assist him in doing so.
Based on this evidence, the circuit court found that there was no reasonable likelihood that
petitioner could correct the conditions of abuse and neglect in the near future and that
termination was necessary for the children’s welfare. West Virginia Code § 49-4-604(b)(6)
provides that circuit courts are to terminate parental rights upon such findings. Accordingly, we
find no error in the circuit court’s decision to terminate petitioner’s parental rights.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 27, 2017, order is hereby affirmed.


                                                                                       Affirmed.

ISSUED: February 23, 2018


CONCURRED IN BY:

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

 

 




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