                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

                                                                                  FILED
In re: T.T. and B.P.                                                            May 22, 2017
                                                                               RORY L. PERRY II, CLERK
No. 16-1119 (Mercer County 15-JA-002-DS & 15-JA-003-DS)                      SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Father F.T., by counsel Gerald R. Linkous, appeals the Circuit Court of Mercer
County’s November 4, 2016, order terminating his parental, custodial, and guardianship rights to
T.T. and B.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”), Elizabeth A. French, 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 terminating his
parental, custodial, and guardianship rights without requiring the DHHR to determine if he could
care for the children with long-term services and without considering a less-restrictive
dispositional alternative.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 January of 2015, the DHHR filed an abuse and neglect petition against the parents
based on a referral regarding infant T.T.’s recent emergency room visits. According to 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).
       2
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective on May 20, 2015. In this memorandum decision, we apply the statutes as they
existed during the pendency of the proceedings below. It is important to note, however, that the
abuse and neglect statutes underwent minor stylistic revisions and the applicable changes have
no impact on the Court’s decision herein.



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petition, the child, born in October of 2014, had been to the emergency room three times with
upper respiratory infections that required x-rays. During a visit when the child was roughly two
months old, medical staff identified a healing fracture on the ninth rib that was not present during
the child’s previous visit. Thereafter, at a visit shortly before the petition’s filing, staff identified
the same fracture in addition to a new healing fracture on the child’s tenth rib with a potential
fracture on the eleventh rib.

         Initially, the parents were unable to explain how the child sustained these injuries.
Moreover, the paternal grandparents, with whom the parents lived, similarly could not explain
the injuries. As such, the DHHR implemented a protection plan whereby the parents were not to
be left alone with the child. Eventually, the parents explained the injuries by stating that in late
November/early December of 2015, petitioner fell asleep with the child on his chest and the child
fell off. According to petitioner, he grabbed the child to keep him from falling. The parents also
indicated that, as a result of the child’s respiratory infection, he stopped breathing on another
occasion which required the grandmother to shake him. Ultimately, the West Virginia State
Police consulted Dr. Joan Phillips, who recommended that the child be taken to a hospital to be
evaluated for potential physical abuse.

        According to the petition, the child was admitted to the hospital on January 7, 2015, and
the DHHR later received a report that the child sustained fractures to his ninth, tenth, and
eleventh ribs. The report further concluded that these injuries were suspicious for non-accidental
trauma, with a pediatric abuse expert indicating that there was a ninety-five percent predictability
that the injuries were due to abuse. The expert further opined that the parents’ explanations were
not reasonable in light of the injuries. The DHHR also learned that petitioner had another child,
B.P., who lived with a different mother. According to the DHHR, petitioner sought neither
custody of, nor visitation with, B.P., and he stated that he wished to voluntarily relinquish his
parental rights to that child.

        In June of 2015, the circuit court held an adjudicatory hearing, during which petitioner
stipulated to injuring T.T. in a physical altercation with the mother. Specifically, petitioner
indicated that he and the mother were fighting over who would get to hold the infant when the
child sustained the injuries. The circuit court also granted petitioner a post-adjudicatory
improvement period. As part of his improvement period, petitioner underwent a psychological
evaluation.

        During his evaluation, petitioner indicated that Child Protective Services (“CPS”) became
involved in the matter because he took his child to the emergency room. He also told the
psychologist that he threw the infant up in the air a few times. According to the psychologist,
petitioner did not know an infant cannot be thrown in this manner and similarly did not know
that an infant needed to be held in such a way as to support its neck. He additionally told the
psychologist that the mother slammed the child on the bed. Following the evaluation, the
psychologist listed the diagnostic impressions of petitioner as child neglect, mild intellectual
disability, and antisocial personality disorder. The evaluation detailed petitioner’s long-term
history of violence and aggression and concluded that his tendencies were concerning, given the
child’s injuries. According to the psychologist, petitioner indicated that “he has had rages with
blackouts in which he was violent toward others.” Petitioner also disclosed that he was

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suspended from high school more than thirty times, including an incident in which he assaulted
the school’s principal. Based upon these issues, the psychologist expressed “significant doubt
about [petitioner’s] ability to care for himself or for a child.” Moreover, the psychologist was
concerned by the fact that petitioner believed that he was a competent and capable parent, while
he viewed “his children in extremely negative terms.”

        Ultimately, the psychologist concluded that petitioner’s “history of aggression and
violence, uncontrollable anger, drug abuse and criminal activity” rendered him unfit to care for
children. Specifically, the psychologist stated that “there is nothing . . . to recommend
[petitioner] as a parent and much to indicate he is incapable of effectively caring for a child and
likely represents a danger to a child.” According to the psychologist, petitioner’s issues impeding
his ability to care for a child were “all but insurmountable” and his prognosis for improved
parenting was “virtually non-existent.”

        Thereafter, petitioner retained a separate psychologist to review his evaluation and render
his own conclusions. By letter dated December 17, 2015, this second psychologist stated that
“[t]he fact that [the first psychologist] did not offer any recommendations is not entirely
surprising given [petitioner’s] reported highly problematic history.” The second psychologist
then offered a list of actions petitioner could take that would show he is more suitable to raise a
child. This list included, among other requirements, that petitioner display no aggressive or
violent behavior toward another person and participate in social skills training classes with no
unexcused absences. According to this second psychologist, if petitioner complied with the
requirements regarding sustaining responsible and adaptive behavior, “he could be ready to start
interacting with his son in six months to a year.”

         The circuit court held a dispositional hearing in October of 2016. During the hearing, the
ongoing CPS worker testified that petitioner had not improved during the proceedings. He failed
to visit child B.P. at all and he indicated that he did not want to continue complying with services
such as parenting and adult skills education. The DHHR also expressed concerns over the
paternal grandparents because of the grandfather’s prior involuntary termination of parental
rights to children and the grandmother’s violent and aggressive behavior toward service
providers. The CPS worker also testified to an incident in which petitioner scared T.T by
screaming in a car they were traveling in, in addition to engaging the mother in an altercation
over a cell phone. Ultimately, the CPS worker testified that petitioner did not have the capacity
to parent the child, especially given the child’s special needs as a result of his cleft palate that
required multiple surgeries. Petitioner’s parenting provider testified that he made no progress in
making the home safer for the children as he displayed no improvement in his ability to
understand the parenting information conveyed to him. The provider also testified to instances in
which petitioner would swear because he found it difficult to change the child’s diaper.
Moreover, the circuit court heard evidence that petitioner attended only half of his scheduled
visits with the child. Petitioner also testified to his ongoing reporting to the local day report
center over charges of domestic battery related to B.P.’s mother. Ultimately, the circuit court




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terminated petitioner’s parental, custodial, and guardianship rights to the children because of his
inability to parent them.3 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). Upon our review, the Court finds
no error in the circuit court’s termination of petitioner’s parental, custodial, and guardianship
rights.

       First, petitioner argues that the circuit court erred in terminating his parental, custodial,
and guardianship rights without requiring the DHHR to make a determination as to whether he
could parent the children with intensive, long-term assistance. We have previously held that

               “Where allegations of neglect are made against parents based on
       intellectual incapacity of such parent(s) and their consequent inability to
       adequately care for their children, termination of rights should occur only after the
       social services system makes a thorough effort to determine whether the parent(s)
       can adequately care for the children with intensive long-term assistance. In such
       case, however, the determination of whether the parents can function with such
       assistance should be made as soon as possible in order to maximize the
       child(ren)’s chances for a permanent placement.” Syllabus point 4, In re Billy Joe
       M., 206 W.Va. 1, 521 S.E.2d 173 (1999).



       3
         Petitioner’s parental rights to both children were terminated below. According to
respondents, as of the filing of their briefs, child B.P. remains in the custody of her non-
offending mother with a permanency plan of remaining in the home. Respondents further state
that child T.T. remains in the same foster home he has resided in since the DHHR originally took
custody. According to respondents, the permanency plan for T.T. is adoption into this home.
However, the parties and the record are silent as to the parental rights of the mother of T.T.



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Syl. Pt. 4, In re Maranda T., 223 W.Va. 512, 678 S.E.2d 18 (2009). According to petitioner, he
requested such a determination at the dispositional hearing, but was told that it was too late for
such an evaluation to be undertaken. The Court, however, notes that the determination as to
whether or not petitioner could properly parent the children with intensive, long-term assistance
was made early in the proceedings when petitioner underwent his psychological evaluation. As
set forth above, the psychologist that evaluated petitioner specifically concluded that petitioner’s
“history of aggression and violence, uncontrollable anger, drug abuse and criminal activity”
rendered him unfit to care for children. In fact, the psychologist not only found that petitioner
was incapable of caring for a child, but she found that he represented an active danger in his
capacity as a parent. Ultimately, the psychologist who evaluated petitioner found that the
impediments to his parenting were “all but insurmountable” and his prognosis for improved
parenting was “virtually non-existent.”

        Moreover, the psychologist who petitioner retained to review this evaluation explicitly
stated that the first psychologist’s lack of recommendations for improved parenting made sense,
given petitioner’s history. This second psychologist, however, did opine as to certain steps
petitioner could take in order to even be allowed to interact with his children in six months to one
year. These recommendations included petitioner refraining from displaying aggressive behavior
towards others and fully participating in adult skills education without any unexcused absences.
The record shows, however, that petitioner continued his aggressive behavior by engaging in
altercations in a service provider’s presence. Specifically, the provider testified to incidents in
which petitioner scared T.T. by yelling in a car and engaged in an altercation with the mother
over a cell phone. Additionally, petitioner was submitting to the local day report center due to
charges of domestic violence as of the dispositional hearing. Further, the record is clear that
petitioner specifically told one provider that he did not wish to continue with parent and adult life
skills education because he believed the DHHR was seeking termination of his parental rights.

       Accordingly, it is clear that petitioner was unable to comply with these basic
requirements for services to improve his parenting such that he might interact with the children.
The record shows that the DHHR obtained an opinion on petitioner’s inability to improve his
parenting and the psychologist recommended no services due to petitioner’s inability to correct
the conditions giving rise to the abuse and neglect at issue. Moreover, petitioner’s own
psychologist similarly recommended minimal steps for petitioner to take in improving his ability
to parent, yet he failed to comply with the same. As such, it is clear that, because of petitioner’s
violent and aggressive tendencies, coupled with his inability to follow the psychologist’s
recommendations, he would have been unable to properly care for the children even with the
implementation of long-term assistance. Accordingly, we find no error.

        Finally, petitioner argues that the circuit court should have implemented a less-restrictive
dispositional alternative. We do not agree. Pursuant to West Virginia Code § 49-4-604(c)(3), a
situation in which there is no reasonable likelihood the conditions of abuse and neglect can be
substantially corrected includes one in which

       [t]he abusing parent . . . [has] not responded to or followed through with a
       reasonable family case plan or other rehabilitative efforts of social, medical,
       mental health or other rehabilitative agencies designed to reduce or prevent the

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       abuse or neglect of the child, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child .
       ...

Based upon the substantial evidence outlined above, the circuit court was presented with
sufficient evidence upon which to base a finding that there was no reasonable likelihood that
petitioner could substantially correct the conditions of abuse and neglect because he failed to
follow through with services. Specifically, the circuit court found that petitioner lacked the
capacity to parent, as evidenced by his failure to follow through with the services offered or
implement the skills he learned therein. The circuit court further found that termination of
petitioner’s parental, custodial, and guardianship rights was in the children’s best interests.
Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate a
parent’s parental, custodial, and guardianship rights upon such findings. Further, we have held as
follows:

               “Termination 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). Accordingly, we find no error
below.

       Finally, because the record is silent as to the status of the parental rights of T.T.’s mother,
this Court reminds the circuit court of its duty to establish permanency for the children. Rule
39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires:

       At least once every three months until permanent placement is achieved as
       defined in Rule 6, the court shall conduct a permanent placement review
       conference, requiring the multidisciplinary treatment team to attend and report as
       to progress and development in the case, for the purpose of reviewing the progress
       in the permanent placement of the child.

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the
children within twelve months of the date of the disposition order. As this Court has stated,

               [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
       placement of an abused and neglected child following the final dispositional order
       must be strictly followed except in the most extraordinary circumstances which
       are fully substantiated in the record.



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Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that

               [i]n determining the appropriate permanent out-of-home placement of a
       child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4­
       604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
       home for the child and shall consider other placement alternatives, including
       permanent foster care, only where the court finds that adoption would not provide
       custody, care, commitment, nurturing and discipline consistent with the child’s
       best interests or where a suitable adoptive home can not be found.

Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 4, 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




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