                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: J.P.                                                                         FILED
                                                                                  May 22, 2017
No. 17-0022 (Calhoun County 16-JA-16)                                             RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


                               MEMORANDUM DECISION
        Petitioner Mother K.B., by counsel D. Kyle Moore, appeals the Circuit Court of Calhoun
County’s December 8, 2016, order terminating her parental rights to J.P.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”), Tony
Morgan, filed a response on behalf of the child in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in adjudicating the child as neglected.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 June of 2016, the DHHR filed an abuse and neglect petition against the parents that
alleged domestic violence and deplorable living conditions in the home. According to the
petition, the parents’ home was in such a condition as to “def[y] description.” As of the DHHR’s
last visit to the home, the floors were covered with dog feces, filth, and other clutter so thick that
a provider refused to complete the walkthrough. It was also indicated that gnats in the home were
so prevalent that “they appeared as black clouds in every direction.” This home visit was
conducted during a prior abuse and neglect proceeding involving the parents based upon the
same allegations. That proceeding resulted in the parents voluntarily relinquishing their parental
rights to an older child in August of 2015. According to the petition in this matter, the parents

       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
         The circuit court actually found that the parents “abused and neglected” the child. As
such, petitioner’s assignment of error more accurately alleges that the circuit court erred in
finding the child was abused and neglected. However, as more thoroughly explained below, the
Court affirms the circuit court’s adjudication based solely on a finding of neglect. Accordingly,
the Court will not address any findings of abuse below.
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were previously instructed that if they ever hoped to have children in the future and live in their
current dwelling, they would have to make their home habitable, as both parents refused to move
from the home. Accordingly, the DHHR alleged that the parents took no steps to remedy the
conditions in the home, as a recent visit to the home revealed an odor so overwhelming that it
was detectable from outside the residence. Based upon these circumstances, the DHHR took
emergency custody of the child at the hospital shortly after her birth.

        During an adjudicatory hearing in August of 2016, the DHHR presented evidence that the
parents had not improved the conditions in the home since the prior abuse and neglect
proceedings. According to a caseworker who had recently visited their residence, the parents’
home lacked a working sewer system and contained two five-gallon buckets filled with human
and animal waste. The caseworker also observed molded food and used dishes cluttering the
kitchen, as well as flies and gnats throughout the home. According to the caseworker, the floors
were so cluttered with filth that it was difficult to walk through the home. Finally, the caseworker
expressed safety concerns, such as a large hole in the bathroom leading to the basement and
several exposed wires. The parents admitted the home was unfit for the child, though they
claimed that petitioner planned to live with the child in another location until such time as the
home was fit. Despite this testimony, a caseworker testified that he identified a bassinet and crib
in the home that had not yet been assembled. The parents also admitted that the father struck
petitioner during the pregnancy and was on probation for criminal charges related to that
incident. Ultimately, the circuit court found that the parents’ testimony regarding the plans for
the child to reside elsewhere to be “incredible,” especially given that the parents had told no one
else about the plans prior to the initiation of these proceedings and their explanation lacked
corroboration. As such, the circuit court found that the parents planned to return to the home with
the child, where “she would have been exposed to horrible living conditions which would have
posed a significant risk to her health, safety, and welfare.” Ultimately, the circuit court found that
the parents neglected the child.

        In September of 2016, the circuit court held a dispositional hearing. Based upon the
evidence, the circuit court terminated petitioner’s parental rights to the child.3 It is from this
order that petitioner appeals.4

       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

       3
         The parental rights of both parents to the child were terminated below. According to the
DHHR, the child is currently placed in a foster home with a permanency plan of adoption
therein.
       4
        On appeal, petitioner does not raise an assignment of error regarding the circuit court’s
termination of parental rights.
                                                  2

       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 adjudication of the child as neglected.

        Petitioner’s entire argument on this issue is premised on the fact that the child was taken
from the parents while at the hospital. As such, petitioner argues that the child was not subjected
to the conditions of the home because she never resided there. Accordingly, it is petitioner’s
contention that the child suffered no actual neglect, but instead the circuit court merely
speculated as to potential harm to the child. The Court does not agree. West Virginia Code § 49­
1-201, in relevant part, defines a neglected child as one “[w]hose physical or mental health is
harmed or threatened by a present refusal, failure or inability of the child’s parent . . . to supply
the child with necessary food, clothing, shelter, supervision, medical care or education . . . .”
(Emphasis added). Petitioner’s argument on appeal ignores the fact that the child’s health was
threatened by the parents’ failure to provide her with necessary and appropriate shelter.

        According to petitioner, the parents testified that they never intended to reside in the
home with the child. However, the circuit court specifically found that the parents’ testimony
lacked credibility and that they planned to return to the home with the child, where “she would
have been exposed to horrible living conditions which would have posed a significant risk to her
health, safety, and welfare.” We have previously held that “[a] reviewing court cannot assess
witness credibility through a record. The trier of fact is uniquely situated to make such
determinations and this Court is not in a position to, and will not, second guess such
determinations.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997).
Here, the circuit court, as the trier of fact, was free to make credibility determinations regarding
the parents’ testimony, especially in light of the fact that petitioner “admitted that she had not
told anyone of this plan prior to the child’s release from the hospital” and the general lack of
corroboration for their claims.

       We have previously held that

               “W.Va.Code, 49-6-2(c) [now West Virginia Code § 49-4-601(i)], requires
       the [DHHR], in a child abuse or neglect case, to prove ‘conditions existing at the
       time of the filing of the petition . . . by clear and convincing [evidence].’ The
       statute, however, does not specify any particular manner or mode of testimony or
       evidence by which the [DHHR] is obligated to meet this burden.” Syllabus Point
       1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).




                                                 3

Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (citations omitted). The record
in this matter is clear that the DHHR established that, as of the petition’s filing, the parents’
home was unfit for the child and, therefore, that the parents failed to provide the child with
necessary shelter. In fact, the parents admitted that the home was unsuitable for the child. As
such, we find that the DHHR met its burden at adjudication by establishing that the parents’
neglect constituted a threat to the child’s health. Accordingly, we find no error in the circuit
court’s adjudication of the child as neglected.5

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 8, 2016, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: May 22, 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




       5
         Petitioner raises an additional assignment of error concerning the circuit court’s findings
regarding domestic violence against petitioner during her pregnancy with J.P. as a basis for
adjudication. Petitioner argues that the circuit court erred in relying on this evidence for various
reasons, but ultimately asserts that adjudication was improper because the findings do not
constitute abuse or neglect. We find that, because the allegations regarding the parents’ living
conditions were sufficient to adjudicate the child as a “neglected child,” it is unnecessary to
address petitioner’s arguments concerning domestic violence.
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