                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS
                                                                                 FILED
In re: B.W. and G.W.                                                         October 23, 2017
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
No. 17-0536 (Kanawha County 16-JA-249 & 16-JA-250)                               OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Father, D.W., by counsel Kevin P. Davis, appeals the Circuit Court of
Kanawha County’s May 19, 2017, order terminating his parental rights to B.W. and G.W.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Steven R.
Compton, 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 and a supplemental appendix. On appeal, petitioner argues that the circuit
court erred in (1) finding by clear and convincing evidence that he abused and/or neglected his
children and (2) terminating his parental rights without first granting an 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In May of 2016, the DHHR filed an abuse and neglect petition against petitioner and the
mother. According to the petition, the DHHR received a referral that the mother dropped the
children, B.W. and G.W., off with her father and never returned for them. Regarding petitioner,
the DHHR alleged that he failed to provide the children with necessary food, clothing,
supervision, housing, and financial support. Petitioner moved to Arkansas in approximately 2012
or 2013 and had no contact with the children thereafter. The DHHR alleged that the parents were
not sufficiently motivated or organized to provide for the children’s needs and that their conduct
constituted extreme maltreatment and negligent treatment which threatened the children’s life,
health, and welfare.

     In November of 2016, the circuit court held an adjudicatory hearing, during which the
DHHR presented the testimony of the mother’s father and her former boyfriend. Both witnesses

       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).


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testified that petitioner had no contact with the children following his move to Arkansas. The
witnesses stated that petitioner failed to pay child support, never attempted to call or visit the
children, and never sent the children gifts or money on their birthdays or Christmas. Petitioner
testified on his own behalf. When asked whether he ever provided anything for the children by
way of clothing, food, or otherwise, petitioner admitted that he failed to do so after leaving West
Virginia in 2012 or 2013. Petitioner also admitted that he never paid child support, but claimed
he knew nothing about that obligation. The circuit court adjudicated petitioner as an abusing
parent, finding that he abandoned the children and failed to provide financial, emotional,
physical, or psychological support.

        The circuit court held a dispositional hearing in January of 2017. On behalf of the
DHHR, a Child Protective Services (“CPS”) worker testified that the allegations against
petitioner included his failure to provide for the children after moving away and having no
further contact with them. Petitioner testified on his own behalf and admitted to abusing and/or
neglecting his children by not providing for them. Petitioner admitted that he failed to pay child
support, contact the children, or enforce his right to custody of the children. Ultimately, the
circuit court terminated petitioner’s parental rights to the children.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
       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).

        Petitioner argues on appeal that the circuit court erred in finding, by “clear and
convincing” evidence, that petitioner abused or neglected the children by abandoning them. He
argues that evidence of abandonment in the proceedings below was speculative at best. We do
not agree. Pursuant to West Virginia Code § 49-1-201, “‘[a]bandonment’” means any conduct
that demonstrates the settled purpose to forego the duties and parental responsibilities to the
child[.]” Further, we have described the “clear and convincing” standard as one in which


       2
        Both parents’ parental rights were terminated below. According to the DHHR, the
children are placed in the home of their maternal grandfather with a goal of adoption therein.
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       the evidence in an abuse and neglect case does not have to satisfy the stringent
       standard of beyond a reasonable doubt; the evidence must establish abuse by clear
       and convincing evidence. This Court has explained that “‘clear and convincing’ is
       the measure or degree of proof that will produce in the mind of the factfinder a
       firm belief or conviction as to the allegations sought to be established.” Brown v.
       Gobble, 196 W.Va. 559, 564, 474 S.E.2d 489, 494 (1996)

In re F.S. and Z.S., 233 W.Va. 538, 546, 759 S.E.2d 769, 777 (2014).

        The evidence below was sufficient to establish that petitioner abused and neglected the
children by abandonment. The circuit court was presented with evidence that petitioner moved to
Arkansas in 2012 or 2013. After moving, petitioner had no contact with the children. He did not
pay child support, visit or speak to the children, or send any type of support, gifts, or money.
Petitioner’s role in the lives of his children was nonexistent. In fact, during the dispositional
hearing, when asked whether he was admitting to the circuit court that he abandoned his
children, petitioner responded “Yes. It’s obvious.” Accordingly, we find no error in the circuit
court’s adjudication of petitioner as an abusing parent.

         Petitioner next argues that the circuit court erred in terminating his parental rights without
first granting him an improvement period. We disagree. Pursuant to West Virginia Code § 49-4­
610, “[a] court may grant a [parent] an improvement period . . . when . . . the [parent] files a
written motion . . . [and] demonstrates, by clear and convincing evidence, that the [parent] is
likely to fully participate in the improvement period[.]” The record on appeal is devoid of any
such written motion. During his testimony, petitioner simply stated that he would comply with
any services, were they offered. Moreover, the decision to grant or deny an improvement period
rests in the sound discretion of the circuit court. See In re: M.M., 236 W.Va. 108, 115, 778
S.E.2d 338, 345 (2015) (holding that “West Virginia law allows the circuit court discretion in
deciding whether to grant a parent an improvement period”); Syl. Pt. 6, in part, In re Katie S.,
198 W.Va. 79, 479 S.E.2d 589 (1996) (holding that “[i]t is within the court’s discretion to grant
an improvement period within the applicable statutory requirements”). We have also held that a
parent’s “entitlement to an improvement period is conditioned upon the ability of the [parent] to
demonstrate ‘by clear and convincing evidence, that the [parent] is likely to fully participate in
the improvement period . . . .’” In re: Charity H., 215 W.Va. 208, 215, 599 S.E.2d 631, 638
(2004).

        Here, even if petitioner had filed a written motion, it is clear from the record that he
failed to demonstrate his ability to fully participate in an improvement period. As mentioned, the
circuit court was presented with evidence that petitioner abandoned the children. Petitioner did
not attempt to contact or visit his children after 2012 or 2013. Further, petitioner did not comply
with prior court orders to pay child support, nor did he provide for his children either physically,
financially, or emotionally. In fact, petitioner testified that he never sent or provided things such
as gifts, food, or clothing. However, rather than take responsibility for his actions, petitioner
blamed the mother for not allowing him to contact the children. During his testimony, petitioner
admitted that he made no attempts to rectify the situation through available legal means. We
have previously held that

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       [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. at 217, 599 S.E.2d at 640). Contrary to petitioner’s argument that he would successfully
comply with an improvement period, his actions show no effort to care for or contact his children
over the course of several years. Further, petitioner’s testimony showed that he took no
responsibility for his actions, nor recognized his parenting deficiencies. As such, we find no error
in the circuit court’s decision denying petitioner an improvement period.

        Further, 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. Moreover, we have previously held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the
       use of intervening less restrictive alternatives when it is found that there is no
       reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code
       § 49-4-604(c)] . . . that conditions of neglect or abuse can be substantially
       corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). West Virginia Code § 49-4­
604(c)(4) provides that no reasonable likelihood that the conditions of abuse or neglect can be
substantially corrected exists when “[t]he abusing parent or parents have abandoned the child[.]”
As previously mentioned, the circuit court found that petitioner abandoned his children due his
failure to provide financial, emotional, physical, or psychological support. Petitioner did not
visit, talk to, or send anything to the children or the mother after moving to Arkansas. While
petitioner asserts that his failure to see or provide for his children was due to the mother’s refusal
to allow him access to the children, he provided no evidence of attempts to contact the mother or
remedy the situation. Given these facts, we find that there was no reasonable likelihood that the
conditions of neglect or abuse could be substantially corrected in the near future. As such, we
find no error in the circuit court’s termination of petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 19, 2017, order is hereby affirmed.


                                                                                           Affirmed.



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ISSUED: October 23, 2017


CONCURRED IN BY:

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




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