                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS
                                                                                  FILED
In re P.P.                                                                      May 24, 2019
                                                                             EDYTHE NASH GAISER, CLERK
No. 18-1049 (Upshur County 18-JA-01)                                         SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA




                              MEMORANDUM DECISION


        Petitioner Father C.P.-1, by counsel Brian W. Bailey, appeals the Circuit Court of Upshur
County’s November 5, 2018, order terminating his parental rights to P.P.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a response
in support of the circuit court’s order. The guardian ad litem (“guardian”), Hunter D. Simmons,
filed a response on behalf of the child, also in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in denying him an improvement period and
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.

        The parents have an extensive and egregious history of Child Protective Services (“CPS”)
intervention dating back over a decade. In 2007, the parents gave birth to their first child
together, C.P.-2. Shortly thereafter, petitioner physically abused then-ten-week-old C.P.-2 such
that the child suffered two skull fractures, a subdural hematoma, two rib fractures, fingerprint
bruising to the forehead and top of the head, and bruising to the back. C.P.-2’s injuries were so
severe that he required a partial lobotomy to relieve pressure in the skull, leaving him

       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). Because petitioner and a child discussed in this
matter share the same initials, we will refer to them as C.P.-1 and C.P.-2, respectively,
throughout this memorandum decision.




                                                1
permanently impaired. The DHHR        filed a child abuse and neglect petition against the parents,
which ultimately resulted in the      involuntary termination of the mother’s parental rights.
Petitioner voluntarily relinquished    his parental rights to C.P.-2, pled guilty to child abuse
resulting in bodily injury, and was   sentenced to not less than one nor more than five years of
incarceration.

        Following petitioner’s release from incarceration in 2010, he and the mother reunited and
had two more children together. The DHHR filed child abuse and neglect petitions against the
parents based upon their prior abuse. Petitioner voluntarily relinquished his rights to one of the
children in 2011, and his parental rights to the other child were terminated in 2013 after the
circuit court found that he failed to acknowledge the abuse perpetrated against C.P.-2 or remedy
the circumstances of abuse. Of note, petitioner had three other children from prior relationships
and his rights to those children were not terminated as they lived with their respective mothers
and had no contact with petitioner.

        Petitioner and the mother conceived a fourth child, P.P., who was born in December of
2017. P.P. is the only child at issue on appeal. The DHHR filed the instant child abuse and
neglect petition against the parents in January of 2018, alleging aggravated circumstances and
their continued failure to remedy the circumstances that resulted in the prior termination of their
parental rights. Petitioner waived his preliminary hearing.

        In August of 2018, the circuit court held an adjudicatory hearing. Testimony established
that the parents’ home was clean and appropriate for the child, and that the parents were
employed. Further, petitioner appeared concerned about the child, called the DHHR often to
inquire about the child’s wellbeing, provided care items for the child, and previously completed a
domestic violence program. However, during the investigation following P.P.’s birth, petitioner
denied responsibility for C.P.-2’s injuries and stated that his prior termination of parental rights
was the result of having been “railroaded by the State” and that he “didn’t do anything wrong.”
Indeed, petitioner testified that, on the night C.P.-2 received his injuries, petitioner had taken
medication that caused grogginess before going to bed. Upon waking up to feed C.P.-2,
petitioner, under the effects of the medicine, failed to turn on the light and sat down on a couch
while holding the child in the crook of his arm, unintentionally hitting the child’s head on the
wooden arm of a couch. He failed, however, to explain C.P.-2’s broken ribs or fingerprint
bruises. Further, in 2016, petitioner was convicted of domestic battery second offense, a lesser
included offense to the original charge of domestic battery third offense, in which the mother
was the victim. As such, although petitioner completed a domestic violence program following
this conviction, it was in no way related to his prior abuse of C.P.-2.

       After hearing evidence, the circuit court found that the parents remained untruthful nearly
eleven years later regarding the injuries sustained by C.P.-2 and further found that they

       failed to demonstrate that they have remedied the problems which led to the prior
       involuntary terminations sufficient to parent a subsequent-born child as they both
       continue to fail to acknowledge the prior abuse and neglect of their child and fail
       to accept any responsibility for the severe physical injury inflicted upon their son.



                                                 2
Accordingly, the circuit court determined that P.P. had been abused and neglected by her parents
due to their failure to correct the conditions that led to the prior termination of their parental
rights and adjudicated them as abusing parents.

         A dispositional hearing was held in October of 2018. The DHHR recommended
termination of the parents’ parental rights given their failure to acknowledge the abuse
perpetrated against C.P.-2 and their resulting inability to address the conditions of abuse that led
to the instant petition’s filing. Both parents requested post-adjudicatory improvement periods and
testified that they would comply with the terms and conditions of the same. After hearing
evidence, the circuit court denied the parents’ request for improvement periods and terminated
their parental rights. In making its findings, the circuit court stated that the facts that the parents
were employed, maintained clean and appropriate housing, and provided for the child were not
dispositive issues in this matter. Rather, the issues in the prior abuse and neglect proceedings,
and which ultimately led to the instant petition’s filing, were domestic violence and the
continued denial of severe physical abuse of C.P.-2. The circuit court found that petitioner was
convicted of a domestic-violence-related incident as recently as 2016, and further found that the
remedial measures argued by the parents, such as domestic violence counseling and related
courses, failed to address the issues in this case. Based upon the parents’ failure to acknowledge
the abuse perpetrated upon C.P.-2, the court opined that they were unable to “remedy a problem
that they continue to deny exists.” Ultimately, the circuit court determined that there was no
reasonable likelihood that the parents could correct the conditions of abuse in the near future and
that termination was in the child’s best interest. It is from the November 5, 2018, dispositional
order that petitioner appeals.2

        The Court has previously established the following standard of review in cases such as
this:

                “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).



        2
            The child was placed in the care of a foster family and the permanency plan is adoption.




                                                   3
Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).

        On appeal, petitioner argues that the circuit court erred in denying him an improvement
period when he demonstrated that he had corrected the circumstances of abuse that led to the
termination of his parental rights in a prior case. In support, petitioner cites to Syllabus Point 4 of
In the Matter of George Glen B., Jr., 205 W. Va. 435, 518 S.E.2d 863 (1999), wherein this Court
held that

               [w]hen an abuse and neglect petition is brought based solely upon a
       previous involuntary termination of parental rights to a sibling pursuant to West
       Virginia Code § [49-4-605(a)(3)], prior to the lower court’s making any
       disposition regarding the petition, it must allow the development of evidence
       surrounding the prior involuntary termination(s) and what actions, if any, the
       parent(s) have taken to remedy the circumstances which led to the prior
       termination(s).

While petitioner concedes that the DHHR was required to file the instant petition based upon his
previous termination of parental rights to an older child,3 he argues that the evidence established
that he had taken significant steps to remedy the circumstances of abuse that led to that
termination. Specifically, petitioner argues that he is much more mature now than he was eleven
years ago, that he completed a domestic violence program, that he maintained an appropriate
home, that he tended to the needs of P.P., and that he was employed. As such, petitioner
“submits that he did everything he could to remedy the problems which existed before” and was
improperly denied an improvement period “precisely because they all feared that [petitioner]
would successfully complete an improvement period.” We disagree.

        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) (“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) (“It 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).

        We first note that the circuit court allowed for the development of evidence surrounding
petitioner’s prior involvement in abuse and neglect proceedings pursuant to George Glen B.
Contrary to petitioner’s argument, his alleged maturity, appropriate housing, and employment do
not demonstrate that he was likely to fully participate in an improvement period. Here, the issues


       3
         Pursuant to West Virginia Code § 49-4-605(a)(3), the DHHR shall file or join in a
petition where the parent’s parental rights to another child have previously been involuntarily
terminated.



                                                  4
giving rise to the child abuse and neglect petitions against petitioner included his severe physical
abuse against C.P.-2 and continued refusal to acknowledge or accept responsibility for that
incident. During the underlying proceedings on the instant petition, petitioner continued to deny
that he abused C.P.-2, despite his conviction and incarceration based upon the same. Indeed,
petitioner incredibly testified at the adjudicatory hearing that C.P.-2’s extensive injuries were
caused by bumping his head against the wooden arm of a couch. We have previously noted that

       [f]ailure 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 Charity H., 215 W.
Va. at 217, 599 S.E.2d at 640). Because petitioner failed to acknowledge the severe abuse he
perpetrated against C.P.-2, the problem of abuse remains untreatable and renders an
improvement period an exercise in futility at P.P.’s expense. Therefore, we find no error in the
circuit court’s decision to deny petitioner an improvement period.

        Petitioner next argues that the circuit court erred in terminating his parental rights.
According to petitioner, the circuit court erred in focusing on his prior abuse and neglect
proceedings rather than the evidence which showed he was gainfully employed, was residing in
stable housing, was willing to participate in services, had completed a domestic violence
program, and had demonstrated his engagement in the proceedings and willingness to parent the
child. He argues that, “[d]espite all of these facts, which essentially were undisputed, the [circuit
c]ourt continued to focus like a laser on the first case involving [C.P.-2], and the fact that it did
not believe [petitioner’s] testimony as to what happened to that child.” Petitioner avers the circuit
court’s termination of his parental rights to P.P. based on his first child abuse and neglect case,
without further allegations of abuse, is in direct contradiction to this Court’s decision in In re
K.L., 233 W. Va. 547, 759 S.E.2d 778 (2014), wherein we noted that child abuse and neglect
petitions brought as a result of subsequent-born children must raise allegations of abuse or
neglect regarding those children. Having reviewed the record, we find that petitioner’s arguments
regarding the termination of his parental rights are without merit.4



       4
         Petitioner also argues that the circuit court erred in shifting the burden from the DHHR
to petitioner. In support, petitioner again cites to K.L., wherein we reversed and remanded the
matter upon finding that the circuit court violated the parent’s constitutional due process rights
when it shifted the burden to her to show a change in circumstances since the previous
termination of her parental rights to another child. See K.L., 233 W. Va. at 553, 759 S.E.2d at
784. Contrary to petitioner’s argument, the circuit court below did not impermissibly shift the
burden from the DHHR to petitioner. In fact, at the adjudicatory hearing, the DHHR stated
“when there’s . . . aggravated circumstances . . . the . . . burden does not shift to the Respondent
Parents. It remains on the [DHHR], and the [DHHR] is charged with – doing an investigation to
determine whether or not there has been a significant change of circumstances.” Accordingly, the

                                                                                    (continued . . .)
                                                 5
        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
children’s welfare. “No reasonable likelihood that conditions of neglect or abuse can be
substantially corrected” means that “the abusing adult or adults have demonstrated an inadequate
capacity to solve the problems of abuse or neglect on their own or with help.” Id. § 49-4-604(c).

        The record establishes that petitioner demonstrated an inadequate capacity to solve the
problems of abuse or neglect given his refusal to acknowledge the issues of abuse. We first note
that, contrary to petitioner’s assertions that the circuit court “held up its subjective disbelief of
the explanations provided by [petitioner] during his own testimony about the event from 2007,”
the record is clear that petitioner severely abused C.P.-2, pled guilty to child abuse resulting in
bodily injury, and was incarcerated for that crime. As such, there is no “subjective disbelief” on
the part of the circuit court. Rather, petitioner has been found guilty of that crime and the issue in
every subsequent abuse and neglect proceeding has revolved around whether he has corrected
the circumstances of abuse from that first case.

        However, at each subsequent proceeding, petitioner has denied ever harming C.P.-2.
Petitioner gave incredible explanations for the injuries and minimized the incident by repeatedly
stating “I should have flipped the light on.” As such, the record is clear that, despite his
conviction and resulting incarceration, petitioner has never accepted responsibility for the
injuries inflicted upon C.P.-2. As set forth above, this continued lack of acknowledgement has
rendered the circumstances of abuse untreatable.

        While petitioner claims that he remedied the circumstances of abuse by maintaining
housing and employment, these issues do not demonstrate that there was a reasonable likelihood
that he could correct the conditions of abuse. Housing and employment were never at issue in
these proceedings. Again, the sole issue arises from petitioner’s physical abuse of C.P.-2, which
was so severe that he suffered two skull fractures, rib fractures, and extensive bruising. The child
is permanently impaired as the result of a partial lobotomy performed to relieve pressure on the
brain. Clearly, maintaining employment and a clean home do not show that petitioner has
corrected his behavior in regard to this egregious physical abuse. To the extent that petitioner


DHHR acknowledged its burden and did not shift it to petitioner. Therefore, this portion of his
argument is entirely without merit.

        Second, petitioner argues that because his parental rights to two other children (ages
fifteen and nine) from different mothers remain intact, his parental rights to P.P. should not have
been terminated. However, the record demonstrates petitioner has essentially no contact with
those children. Petitioner testified that he had not seen either child in years and further admitted
that the nine-year-old’s mother would require court intervention before allowing petitioner to
visit the child. These situations are far from caring for an infant such as P.P. and provide no
support for petitioner’s argument that his parental rights to P.P. should not have been terminated.



                                                  6
argues that he completed a domestic violence program, we note that he was forced to complete
this program as a result of his criminal conviction in 2016. Further, the director of the program
submitted a letter to the circuit court wherein she stated that issues of child abuse and neglect
were beyond the scope and intent of the program. As such, his completion of a program entirely
unrelated to the issue of abuse against his child does little to support his argument.

        Likewise, petitioner’s reliance on K.L. does not support his argument that his parental
rights to P.P. should not have been terminated. In K.L., this Court reversed and remanded the
matter based upon the circuit court’s improper shifting of the burden to the parent to prove that
there had been a change in circumstances since her prior involuntary termination of parental
rights to an older sibling. In so doing, we noted that

        [t]he DHHR’s petition against the petitioner was based solely on the prior
       involuntary termination, without further allegations. There must be specific
       allegations and evidence of abuse or neglect of K.L., which could include
       demonstrating that K.L. was abused and/or neglected by showing the petitioner
       failed to correct the conditions that led to the prior termination of her parental
       rights and/or that other circumstances exist which would establish abuse and/or
       neglect.

K.L., 233 W. Va. at 554, 759 S.E.2d at 785 (emphasis added). Here, contrary to petitioner’s
assertions, the DHHR did make allegations in addition to the fact that his parental rights to an
older child had previously been terminated. The DHHR alleged, and the circuit court found, that
P.P. had been abused and neglected because petitioner failed to remedy the circumstances of
abuse by refusing to acknowledge the abuse of C.P.-2. Failure to remedy the prior circumstances
of abuse is an allegation in addition to a prior termination of parental rights that is clearly
contemplated by our findings in K.L. Accordingly, petitioner’s argument in this regard is without
merit.

        In sum, we agree that petitioner’s failure to acknowledge the abuse of C.P.-2 rendered the
circumstances of abuse untreatable, and further demonstrated that there was no reasonable
likelihood that petitioner could correct the conditions of abuse and neglect in the near future and
that termination was necessary for the P.P.’s welfare. Although petitioner appears to be a stable
adult in terms of housing and employment, we have previously held that “[c]ourts are not
required to exhaust every speculative possibility of parental improvement . . . where it appears
that the welfare of the child will be seriously threatened.” Cecil T., 228 W. Va. at 91, 717 S.E.2d
at 875, syl. pt. 4, in part (citing syl. pt. 1, in part, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114
(1980)). Given petitioner’s blatant denial of prior abuse, we find no error in the circuit court’s
termination of his parental rights.

        For these reasons, we find no error in the decision of the circuit court, and its November
5, 2018, order is hereby affirmed. However, we direct the DHHR to file a new petition against
petitioner in regard to his two older children who are not at issue on appeal.


                                                                                          Affirmed.

                                                 7
ISSUED: May 24, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




                                    8
