                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                FILED
In re: L.D.-1 and L.D.-2
                                                                           November 10, 2016
                                                                               RORY L. PERRY II, CLERK
No. 16-0550 (Wood County 15-JA-38 & 15-JA-39)                                SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Father T.D., by counsel George M. Torres, appeals the Circuit Court of Wood
County’s May 23, 2016, “Order Dismissing Motion For Reconsideration.”1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed its
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Debra L.
Steed, filed a response on behalf of the children also in support of the circuit court’s order and
filed a supplemental appendix. On appeal, petitioner alleges that the circuit court erred in
terminating his parental rights and in denying his “Motion For Reconsideration.”2, 3

      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

       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). Additionally, because the children share the same initials, we
will refer to them as L.D.-1 and L.D.-2 throughout the memorandum decision. Finally, the Court
notes that the proceedings below concerned an additional child that is not petitioner’s biological
child. Petitioner raises no assignment of error in regard to this child on appeal. Accordingly, our
holding in this memorandum decision does not concern the circuit court’s rulings regarding this
child.
       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         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and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.
       3
         The Court notes that the West Virginia Rules of Procedure for Child Abuse and Neglect
proceedings do not allow for a motion for reconsideration. Instead, Rule 46 provides for
modification of a circuit court’s order in abuse and neglect proceedings. As such, the Court will
treat petitioner’s “Motion For Reconsideration” as a motion to modify the dispositional order at
issue in this memorandum decision.
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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 March of 2015, the DHHR filed an abuse and neglect petition that alleged abuse by the
children’s mother, A.N.4 Although the petition named petitioner as the children’s biological
father, it listed his whereabouts as unknown and did not make any allegations of abuse or neglect
in regard to him. In November of 2015, the DHHR filed an amended petition that alleged
petitioner, who was incarcerated in the State of Ohio, failed to provide his children with
appropriate shelter, supervision, financial or emotional support, medical assistance, educational
direction, food, and clothing. The amended petition also alleged that petitioner left the children
in the mother’s care without taking action to protect them from abuse and neglect.

        In April of 2015, the children’s paternal grandparents moved to intervene in the
proceedings and to obtain custody of the children. However, the circuit court denied the
grandparents’ motions based on evidence that one of the grandparents had sexual contact with
L.D.-1 at some point in 2012. According to a Wood County Deputy Sheriff who testified in these
proceedings, L.D.-1 disclosed sexual abuse by her grandparent in 2012. Despite this disclosure,
petitioner and the mother allowed the children to reside with the grandparents as late as 2015,
when they were removed from the mother’s custody. In January of 2016, the circuit court held an
adjudicatory hearing, during which it adjudicated petitioner as an abusing parent for his failure to
provide the children with basic necessities. The circuit court also found that petitioner was absent
from the children’s lives for the preceding eight years.

        In March of 2016, the circuit court held a dispositional hearing. At the time, petitioner
remained incarcerated with a release date of September of 2018. Additionally, petitioner’s
motion for early release was denied shortly before this hearing, although he subsequently filed
another motion for early release that was pending as of the dispositional hearing. At disposition,
the circuit court heard evidence about petitioner’s visits with the children while incarcerated,
including a period of approximately two years where petitioner did not see the children because
the grandparents had transported the children to the visits with petitioner but could no longer do
so because of the sexual abuse. Moreover, the evidence established that petitioner did not believe
L.D.-1’s allegations of sexual abuse by the grandparent and that he continued to expose the child
to the grandparent during his incarceration. At the hearing, the circuit court indicated that it
would terminate petitioner’s parental rights in its order.

        Prior to the circuit court’s entry of its order terminating petitioner’s parental rights,
petitioner was released from incarceration. On April 4, 2016, petitioner filed a “Motion For
Reconsideration” of the circuit court’s decision at disposition. On April 19, 2016, the circuit
court entered its order terminating petitioner’s parental rights. Thereafter, on May 23, 2016, the
circuit court entered an order denying petitioner’s “Motion For Reconsideration.” It is from this
order that petitioner appeals.

         4
             The mother’s parental rights to the children were terminated during the proceedings
below.
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       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).

        First, the Court finds no error in regard to petitioner’s allegation that the circuit court
erred in terminating his parental rights. On appeal, petitioner alleges that the circuit court should
have imposed a less-restrictive dispositional alternative in light of what he describes as a close
emotional bond with the children. Specifically, petitioner alleges that the circuit court should
have granted him an improvement period as disposition. The Court does not agree. First, the
record on appeal does not support petitioner’s contention that he shares a strong bond with the
children. According to petitioner, even though he was incarcerated for approximately eight years
before the instant proceedings, he fostered a strong emotional bond with the children during their
visits at his correctional facility. However, it is unlikely that these visits constitute a sufficient
amount of time to foster a close bond, as “[o]ur cases indicate that a close emotional bond
generally takes several years to develop.” In re Alyssa W., 217 W.Va. 707, 711, 619 S.E.2d 220,
224 (2005). Moreover, the lack of a bond between petitioner and the children is supported by the
fact that a report from a therapist that provided counseling to the children indicated that they
expressed indifference toward petitioner.

        Additionally, the record on appeal is clear that the circuit court was required to terminate
petitioner’s parental rights upon its findings that there was no reasonable likelihood that
petitioner could substantially correct the conditions of abuse and neglect and that termination of
his parental rights was necessary for the children’s welfare. We have previously held as follows:

               When no factors and circumstances other than incarceration are raised at a
       disposition hearing in a child abuse and neglect proceeding with regard to a
       parent’s ability to remedy the condition of abuse and neglect in the near future,
       the circuit court shall evaluate whether the best interests of a child are served by
       terminating the rights of the biological parent in light of the evidence before it.
       This would necessarily include but not be limited to consideration of the nature of
       the offense for which the parent is incarcerated, the terms of the confinement, and

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       the length of the incarceration in light of the abused or neglected child’s best
       interests and paramount need for permanency, security, stability and continuity.

Syl. Pt. 3, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). In addition to his incarceration,
the circuit court also considered evidence that petitioner failed to acknowledge L.D.-1’s sexual
abuse by her grandparent and the lack of an emotional bond between petitioner and the children.
On appeal, petitioner alleges that he did not fail to acknowledge the child’s sexual abuse. Instead,
he argues that he asked the child about her accusation and the child indicated that she was not
sexually abused. Additionally, petitioner argues that he actually granted custodial rights to the
maternal grandparents and, as such, cannot be responsible for the mother leaving the children
with the paternal grandparents after L.D.-1’s disclosure of sexual abuse. The Court, however,
does not find these arguments compelling.

         As noted above, L.D.-1 disclosed the abuse to a law enforcement officer in 2012, and
CPS substantiated the claim at that time. However, petitioner continued to attend visits with the
children and the grandparent in question well after the accusation. Further, there is no indication
that petitioner objected to the children traveling with the grandparent to visit him. Additionally,
regardless of petitioner’s attempt to transfer custody of the children to the maternal grandparents,
it is clear that the children were allowed to reside with the paternal grandparents after L.D.-1’s
disclosure. As such, it is clear that petitioner not only failed to acknowledge the abuse in
question, but he continued to expose the children to the abuser after L.D.-1’s disclosure.

       This Court has 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
       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. 208, 217, 599 S.E.2d 631, 640 (2004)). As outlined above, the record on appeal is clear
that petitioner failed to acknowledge the abuse that L.D.-1 suffered and, in fact, exposed the
children to the potential for further abuse by allowing the abuser continued access to them.
Because petitioner failed to acknowledge the abuse, the circuit court did not err in denying him
an improvement period as disposition. Moreover, West Virginia Code § 49-4-610(3) grants
circuit courts discretion in granting improvement periods as disposition, and we find no abuse of
that discretion on appeal. As noted above, the circuit court specifically found that there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect and that termination of his parental rights was necessary for the children’s well-being.
Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate a
parent’s parental rights upon such findings. Accordingly, we find no error in the circuit court’s
termination of petitioner’s parental rights without imposing a less-restrictive dispositional
alternative.



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        Finally, the Court finds no error in the circuit court’s denial of petitioner’s motion to
modify the dispositional order. Although petitioner filed the motion prior to the order’s entry, it
is clear from the record that, following the dispositional hearing, the parties were aware that the
circuit court’s order from that hearing would terminate petitioner’s parental rights. In support of
his motion, petitioner alleged that he was released from prison subsequent to the dispositional
hearing and that his release corrected the conditions of abuse and neglect present. As such,
petitioner requested an improvement period so as to achieve reunification with the children. The
Court, however, finds no error in the circuit court’s order denying the motion. According to Rule
46 of the West Virginia Rules of Abuse and Neglect Proceedings, a circuit court may modify an
order upon a showing “of a material change of circumstances . . . .” In this matter, as noted
above, petitioner’s incarceration was not the only issue upon which termination was based.
Therefore, his release did nothing to mitigate the fact that he did not acknowledge his daughter’s
sexual abuse and that he continued to expose the children to potential abuse by allowing the
abuser additional contact with the children. More importantly, upon his release, petitioner
resided in his parents’ home. As such, it is clear that reunification with the children was not
appropriate, given that petitioner’s home was not suitable for the children because of the past
instance of abuse by a paternal grandparent. For these reasons, the Court finds no error in the
circuit court’s order denying petitioner’s “Motion For Reconsideration.”

       For the foregoing reasons, we find no error in the circuit court’s May 23, 2016, order, and
we hereby affirm the same.


                                                                                        Affirmed.

ISSUED: November 14, 2016


CONCURRED IN BY:

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




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