                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


                                                                                  FILED
In re: S.B., A.B., and K.B.
                                                                              March 24, 2017
                                                                               RORY L. PERRY II, CLERK
No. 16-0832 (Tyler County 16-JA-5, 16-JA-6, & 16-JA-7)                       SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                              MEMORANDUM DECISION
         Petitioner Father R.B., by counsel John E. Gainer, appeals the Circuit Court of Tyler
County’s August 22, 2016, order terminating his parental rights to S.B., A.B., & K.B.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Elmer
Earl Bowser, Jr., filed a response on behalf of the children supporting the circuit court’s order.
On appeal, petitioner argues that the circuit court erred in denying his motion for a post­
adjudicatory improvement period and in 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.

       In April of 2016, the DHHR filed an abuse and neglect petition and alleged that petitioner
abused the children by possessing and exposing at least one child to child pornography.
According to the petition, during a forensic interview one child disclosed her knowledge of “kid
sex” videos. Thereafter, petitioner waived his preliminary hearing.

        In May of 2016, the circuit court held an adjudicatory hearing, during which petitioner
admitted to possessing child pornography. Moreover, a West Virginia State Trooper testified
that, during his investigation of petitioner, he discovered over 100 images and approximately 10
videos of child pornography on petitioner’s computer. According to the trooper, all the children
depicted were female and he estimated the children’s ages to be between four and ten. A Child
Protective Services worker further testified to her forensic interview with S.B., then eight years
old. During the interview, the child admitted to watching child pornography, although she
indicated that she watched it on her cousin’s tablet, not petitioner’s computer. However, the

       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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interviewer testified that the child avoided answering questions about petitioner and additionally
exhibited sexual knowledge that was atypical for an eight year old, including a description of
performing oral sex. Petitioner also testified and admitted that the children had access to the
computer where he kept the child pornography. Petitioner additionally denied exposing his
children to the materials. The circuit court took the matter under advisement.

        During a hearing in June of 2016, the circuit court adjudicated petitioner as an abusing
parent. Following that hearing, petitioner filed a motion for a post-adjudicatory improvement
period. In July of 2016, the circuit court held a dispositional hearing, during which it denied
petitioner’s motion. The circuit court further terminated petitioner’s parental rights. It is from
this order that petitioner appeals.2

       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 denial of petitioner’s motion for a post-adjudicatory improvement
period or in its termination of petitioner’s parental rights.

        To begin, it is important to note that petitioner asks this Court to apply an incorrect
standard to the circuit court’s denial of his motion for an improvement period. Petitioner argues
that a circuit court must allow a parent an improvement period “unless the court finds compelling
circumstances to justify a denial.” Syl. Pt. 2, in part, State ex rel. W.Va. Dep’t of Human Services
v. Cheryl M., 177 W.Va. 688, 356 S.E.2d 181 (1987). Petitioner relies upon case law that has
been rendered inapplicable by changes to the abuse and neglect statues and ignores the fact that
subsequent statutory enactments clarified that the burden of proof falls upon the parent
requesting an improvement period. Indeed, West Virginia Code § 49-4-610(2)(B) provides that a

       2
         According to the DHHR, as of the filing of its response brief the children were all placed
in the home of their mother while she completed the terms of a post-adjudicatory improvement
period. Both the guardian and the DHHR state that the permanency plan for the children is
reunification with the mother, while the guardian adds that the concurrent permanency plan is
adoption by the maternal aunt and uncle.
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circuit court may grant a post-adjudicatory improvement period when “[t]he [parent]
demonstrates, by clear and convincing evidence, that the [parent] is likely to fully participate in
the improvement period . . . .” The record on appeal is clear that petitioner failed to produce any
evidence in support of his motion. Other than the blanket assertion in his motion that petitioner
would “fully participate in the improvement period,” petitioner presented no evidence, either
testimonial or otherwise, that he was likely to fully participate in an improvement period. As
such, we find no error in the circuit court’s denial of petitioner’s motion.

         Finally, the Court finds no error in the circuit court’s termination of petitioner’s parental
rights. In support of this argument, petitioner asserts that the DHHR “did not prove that [he] ever
exposed his children to child pornography” and that the DHHR could have implemented steps to
prevent them from being exposed to it in the future. Petitioner argues that the circuit court’s
finding that there was no reasonable likelihood the conditions of abuse and neglect could be
substantially corrected was in error. We do not agree. In fact, petitioner’s argument on appeal
illustrates the fact that the conditions of abuse in the home persist. Importantly, direct evidence
of petitioner’s exposure of the children to child pornography was not necessary to establish he
was an abusing parent. The fact that he allowed the children access to the computer where he
kept the images was sufficient to threaten their welfare. Moreover, petitioner fails to
acknowledge the fact that his daughter exhibited sexual knowledge atypical of a child of her age,
and the fact that the child admitted to viewing pornography with her cousin is not determinative
of how she came to possess this knowledge. Nor does it explain how she knew to search for “kid
sex” on her cousin’s tablet in the first instance.

       Simply put, petitioner has failed to acknowledge his role in the abuse that took place in
the home. We have previously 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 . .
       ..

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)). Because petitioner failed to acknowledge the
extent of his abuse, it is clear that the circuit court correctly found that there was no reasonable
likelihood the conditions of abuse could be substantially corrected. Moreover, the circuit court
also found that termination was necessary for the children’s welfare. Pursuant to West Virginia
Code § 49-4-604(a)(6), circuit courts are directed to terminate parental rights upon these
findings.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 22, 2016, order is hereby affirmed.


                                                                                           Affirmed.



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ISSUED: March 24, 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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