                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


                                                                                     FILED
In Re: A.H., S.W., & H.W.                                                           October 1, 2013
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
No. 13-0308 (Barbour County 12-JA-11, 12-JA-12, & 12-JA-13)                       OF WEST VIRGINIA




                                 MEMORANDUM DECISION

        Petitioner Father, by counsel Roger D. Curry, appeals the Circuit Court of Barbour
County’s February 27, 2013 order terminating his parental rights to S.W. and H.W., and also his
custodial rights to A.H. 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, Karen Hill Johnson, filed a response on behalf of the children supporting
the circuit court’s order. The DHHR and the guardian also filed a joint supplemental appendix.
On appeal, petitioner alleges that the circuit court erred in terminating his parental rights because
it relied on an impermissible presumption that he was using illegal drugs and because the
evidence was insufficient to support termination.

       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 June of 2012, the DHHR filed a petition alleging that petitioner abused his two
children, S.W. and H.W., as well as his girlfriend’s child, A.H.. Petitioner’s girlfriend, A.S., and
her daughter both resided with petitioner. The petition alleged that petitioner abused the children
by engaging in substance abuse and domestic violence. On June 25, 2012, the circuit court
commenced the adjudicatory hearing and took in camera testimony from A.H. before ordering the
hearing be continued. Thereafter, in July of 2012, the police responded to petitioner’s home after
his girlfriend called 911 seeking medical assistance because petitioner smoked a synthetic
substance and had a seizure. Law enforcement later testified that petitioner struck his girlfriend
during this incident, which resulted in criminal charges. Petitioner pled guilty to domestic battery
in relation to this incident. During a review hearing regarding this incident in September of 2012,
the circuit court ordered petitioner to undergo drug testing at the conclusion of the hearing.

       On October 10, 2012, the circuit court reconvened for the continued adjudicatory hearing,
during which the circuit court took in camera testimony from the remaining children. The mother,
B.M., also provided testimony concerning petitioner’s past domestic violence toward her,
submitting medical records and pictures showing various injuries to her mouth, face, eyes, and

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arms to corroborate her testimony. On the GAL’s motion, the circuit court left the adjudicatory
hearing open so that she could obtain criminal records regarding petitioner’s domestic violence
against his own father. The circuit court again ordered that petitioner undergo drug testing at the
conclusion of the hearing.

        On November 8, 2012, the circuit court concluded the adjudicatory hearing and
adjudicated petitioner as an abusing parent. Petitioner stood silent and presented no evidence
during the entirety of the proceeding below. The circuit court also noted that petitioner failed to
submit to drug testing following the prior hearing, and made a finding that “[petitioner] would
have tested positive for some type of illegal drugs.” Approximately two weeks later, on
November 19, 2012, the circuit court held a dispositional hearing. Petitioner failed to attend and
told counsel that his car had broken down. Petitioner’s counsel requested a continuance, and the
circuit court denied the request. The circuit court thereafter terminated petitioner’s parental rights
to S.W. and H.W. and also any custodial rights to A.H. It is from this 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 termination of petitioner’s
parental and custodial rights. While petitioner argues that the evidence was insufficient to support
termination, the record establishes that the circuit court was presented with ample evidence upon
which to terminate petitioner’s parental and custodial rights. Specifically, petitioner argues that
the evidence of domestic violence was insufficient to support termination because the alleged
victim, his girlfriend A.S., testified that he had never committed domestic violence against her.
However, the circuit court found A.S.’s testimony to be “incredible, not believable, and not
truthful as it flies in the face of other testimony given, and it is completely contrary to the
testimony of the police officer.”

       Additionally, the circuit court was presented with petitioner’s own guilty plea to the
incident of domestic violence that he now asserts never occurred, as well as evidence from law

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enforcement concerning the incident. The circuit court also considered evidence of petitioner’s
extended history of domestic violence, which included incidents of domestic violence committed
against two women, A.S. and B.M., as well as against his own father. Most importantly, the
circuit court took in camera testimony from the children, all of whom corroborated instances of
domestic violence and abuse in the home. We have previously held that “. . . in the context of
abuse and neglect proceedings, the circuit court is the entity charged with weighing the credibility
of witnesses and rendering findings of fact.” In re Emily, 208 W.Va. 325, 339, 540 S.E.2d 542,
556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478, 525 S.E.2d 66 (1999)).
Based upon our review, it is clear that the circuit court was presented with overwhelming
evidence upon which to base its finding that A.S.’s testimony as to petitioner never having
inflicted domestic violence upon her was not credible.

        Further, the record is clear that petitioner failed to admit to the underlying issues of abuse
and neglect that gave rise to the petition and failed to participate in the proceedings below in such
a way as to attempt to achieve reunification with his children. Petitioner stood silent during the
proceedings below, never offering any testimony or attempt to refute the DHHR’s evidence.
Further, petitioner defied the circuit court’s order to submit to drug testing. More importantly, the
circuit court found that petitioner’s failure to admit to the issues of abuse and neglect even
corrupted A.S.’s testimony, finding that “[A.S.] is totally under the control of [petitioner],” and
that, in her testimony denying domestic violence, she was “covering for [petitioner] and she has
chosen [petitioner] over her child.”

        We have previously held that “in 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 . . . , results in making
the problem untreatable . . . .” In re Kaitlyn P., 225 W.Va. 123, 126, 690 S.E.2d 131, 134 (2010)
(quoting W.Va. Dep’t of Health and Human Res. v. Doris S., 197 W.Va. 489, 498, 475 S.E.2d
865, 874 (1996)). Because petitioner failed to admit the truth of the basic allegations of abuse and
neglect, the problem was therefore untreatable and the circuit court did not err in proceeding to
termination. Based upon the evidence above, it is clear that petitioner failed to respond to or
follow through with a reasonable family case plan or other rehabilitative efforts designed to
reduce or prevent the abuse or neglect of the children. Pursuant to West Virginia Code 49-6­
5(b)(3), this constitutes a situation in which there is no reasonable likelihood that the conditions
of abuse or neglect can be substantially corrected in the near future. For this reason, and because
the circuit court found that termination was in the children’s best interest, the circuit court was
correct to terminate petitioner’s parental and custodial rights to the children as directed by West
Virginia Code § 49-6-5(a)(6).

        Finally, the Court declines to address petitioner’s assignment of error alleging that the
circuit court erred in making a presumption of drug use because of his refusal to submit to drug
testing. The Court notes that the evidence above was sufficient to support termination absent the
circuit court’s finding in regard to this presumption. Further, the record is clear that the circuit
court placed little emphasis on this presumption in reaching termination. However, it is important
to note that petitioner’s refusal to submit to drug testing only further supports the evidence that

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petitioner was unwilling to respond to or follow through with rehabilitative efforts designed to
reduce or prevent the abuse of the children at issue.

       For the foregoing reasons, we find no error in the decision of the circuit court and its
February 27, 2013 order is hereby affirmed.


                                                                                      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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