                                  STATE OF WEST VIRGINIA
                                SUPREME COURT OF APPEALS

In re H.G. and K.G.
                                                                                       FILED
No. 18-0743 (Roane County 17-JA-133 and 17-JA-134)                                  April 19, 2019
                                                                                   EDYTHE NASH GAISER, CLERK
                                                                                   SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA


                                   MEMORANDUM DECISION


         Petitioner Father K.S., by counsel Lauren A. Estep, appeals the Circuit Court of Roane
County’s July 25, 2018, order terminating his parental rights to H.G. and K.G.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Betty
Clark Gregory, 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 his motion for a post-
adjudicatory improvement period.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 December of 2017, the DHHR filed an abuse and neglect petition alleging that
petitioner and his live-in girlfriend failed to provide necessary food, clothing, shelter, and
supervision for the children. Specifically, the DHHR alleged that the home was in a deplorable
and dangerous condition. A Child Protective Services (“CPS”) worker observed “excessive
clutter, prescription bottles and animal waste strewn throughout the home.” The DHHR further
alleged that a bathroom was used to keep chickens and one bedroom was used to house cats. The
children did not have a proper bedroom and slept on a couch. The CPS worker reported “an

          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).
          2
              Petitioner does not raise an assignment of error regarding the termination of his parental
rights.


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overwhelming odor of animal . . . feces” in the home. Additionally, in December of 2017, the
children were sent home from school with head lice. The DHHR alleged that the condition of the
home caused the children emotional trauma. The children reported that they were embarrassed
by the way their clothes smelled and that showering did not help eliminate the smell. They were
also embarrassed that they were sent home from school for having lice. The CPS worker also
observed “excessive clutter outside the family home that caused safety hazards” to the children.

        Subsequently, an amended petition was filed to include allegations that petitioner has a
substantial criminal history in Ohio and Pennsylvania and that he made numerous harassing and
threatening social media posts regarding the removal of the children. Additionally, the DHHR
alleged that his parental rights to at least one other child were involuntarily terminated. Further,
the amended petition alleged that petitioner’s girlfriend’s rights to a disabled son were
involuntarily terminated in Kanawha County, West Virginia, due, in part, to allegations of sexual
abuse. On January 29, 2018, petitioner stipulated to the allegations of abuse and neglect and
moved for a post-adjudicatory improvement period.

         On June 4, 2018, the circuit court held a dispositional hearing. Petitioner testified that he
was unable to see his shortcomings as a parent and blamed others for his problems. He admitted
to being arrested at least fifteen times for criminal activity. Petitioner’s psychological evaluation
was admitted into evidence, which indicated “a significant attempt to conceal information, to
minimize his responsibility, to deny critical issues, and to skew his responses to present himself
in an unrealistically positive manner.” The report concluded that petitioner had no motivation for
improvement, and that his prognosis for parental improvement was “extremely poor.”
Petitioner’s girlfriend testified that the home was cleaned after the children were removed and
that she planned to keep it in “good condition.” After hearing evidence, the circuit court denied
petitioner’s motion for a post-adjudicatory improvement period and found that despite his
admissions at adjudication, petitioner “failed to acknowledge that any of his behaviors or
conduct caused this case to be filed and his children to be in state custody.” The circuit court
further found that petitioner was unwilling to work with his girlfriend to clean the house or “even
pick up after himself. He denies any shortcomings, and says that he needs others to point them
out to him. He has gone to great lengths to try to convince this Court that he is the victim, when,
in fact, he has been the perpetrator.” Moreover, the circuit court found no reasonable likelihood
that petitioner could substantially correct the conditions of abuse and neglect in the near future
and that the termination of petitioner’s parental rights was necessary for the children’s welfare.
Ultimately, the circuit court terminated petitioner’s parental rights in its July 25, 2018,
dispositional order.3 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


       3
        Petitioner’s girlfriend’s custodial rights to the children were also terminated and the
children’s mother voluntarily relinquished her parental rights. According to respondents, the
permanency plan for the children is adoption by their maternal aunt.


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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, this Court
finds no error in the proceedings below.

        In his sole assignment of error, petitioner argues that the circuit court erred in denying his
motion for a post-adjudicatory improvement period. Petitioner claims that he and his girlfriend
“cleaned the home almost immediately upon the children’s removal” and that the guardian
visited the home thereafter, found that the parties had made “great progress,” and did not find
any “obvious safety hazards in the home.” Petitioner also notes that he testified at the
dispositional hearing that he was willing to participate in services. However, we do not find his
argument compelling.

        Pursuant to West Virginia Code § 49-4-610(2)(B), a circuit court may grant a parent an
improvement period when the parent “demonstrates, by clear and convincing evidence, that the
[parent] is likely to fully participate in the improvement period.” Additionally, “West Virginia
law allows the circuit court discretion in deciding whether to grant a parent an improvement
period.” In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015).

        Here, petitioner failed to demonstrate by clear and convincing evidence that he would be
likely to fully participate in an improvement period. Although he claims the house was cleaned
after the children were removed, the circuit court found that petitioner did not help his girlfriend
clean the home and that he failed to make any improvements during the proceedings.

       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)). The record shows that petitioner was unable or
unwilling to recognize his shortcomings as a parent and blamed others for his problems. The

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circuit court specifically found that petitioner “failed to acknowledge that any of his behaviors or
conduct caused this case to be filed and his children to be in state custody.” Because petitioner
failed to acknowledge the conditions of abuse and neglect or take responsibility for his actions, it
is clear that the issues could not be remedied. Based on this evidence, we find no error in the
circuit court’s denial of petitioner’s motion for a post-adjudicatory improvement period.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 25, 2018, dispositional order is hereby affirmed.
                                                                                     Affirmed.



ISSUED: April 19, 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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