                               STATE OF WEST VIRGINIA
                             SUPREME COURT OF APPEALS                                 FILED
                                                                                  October 23, 2017
                                                                                     RORY L. PERRY II, CLERK
In re: M.A., A.A.-1, and A.A.-2                                                    SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA

No. 17-0394 (Randolph County 2016-JA-069, 2016-JA-070, & 2016-JA-071)


                                MEMORANDUM DECISION
        Petitioner Mother S.A., by counsel J. Brent Easton, appeals the Circuit Court of Randolph
County’s March 27, 2017, order terminating her parental rights to M.A and A.A.-2.1 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”),
Heather M. Weese, 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 adjudicating her upon
insufficient evidence and terminating her parental rights without first granting her an
improvement period.

        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 August of 2016, the DHHR filed an abuse and neglect petition against the parents that
alleged they drank alcohol with A.A.-1, then sixteen years old, and one of her underage friends.2
The petition further alleged that the parents played a game with the children while drinking that
included “sexual truth or dare.” According to the petition, this game resulted in A.A.-1 and her
friend engaging in various sexual dares wherein the parents urged the children to wrestle each
other’s clothing off, kiss, and perform oral sex on one another. The petition further alleged that

       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). Further, because two parties to this proceeding share the
same initials, we will refer to them as A.A.-1 and A.A.-2 throughout this memorandum decision.
Finally, the record shows that A.A.-1 reached the age of majority during the proceedings below
and was, accordingly, dismissed from the proceedings. Insomuch as petitioner bases part of her
argument in support of her assignments of error upon findings regarding this child, she is
relevant to this appeal and referenced herein
       2
           Petitioner is not the biological mother of A.A.-1.
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the parents failed to obtain appropriate medical treatment for A.A.-2, who was born with a cleft
palate that resulted in hindered speech and development. Further, the DHHR alleged that the
parents were eventually incarcerated on related criminal charges and, therefore, abandoned their
children. The DHHR later filed an amended petition that included additional allegations, such as
drug use in the home; more specific sexual abuse disclosures from A.A.-1; more specific
information regarding A.A.-2’s medical condition; and the allegation that the father was a
registered sex offender.

        In December of 2016, the circuit court held an adjudicatory hearing, during which it
heard testimony from multiple individuals to whom A.A.-1 had disclosed the sexual abuse in
question. The witnesses all testified that A.A.-1 consistently disclosed the details of the abuse,
including her repeated statement that the parents provided alcohol for her and her underage
friend to drink while they played a game with sexual overtones. However, A.A.-1 testified at the
hearing that she lied about the abuse because the father would not allow her boyfriend to stay
overnight night with her. Contrary to her testimony, the circuit court heard other evidence that
A.A.-1 fabricated her recantation, including A.A.-1’s admission that, approximately two weeks
before the hearing, she texted the same underage friend who engaged in the actions giving rise to
the petition and told her that she recanted her testimony so that her siblings would be allowed to
go home. The circuit court also heard testimony from the friend wherein she stated that A.A.-1
asked her to lie about the abuse and say it did not happen. A.A.-1’s friend also testified about the
abuse consistent with her statement to law enforcement. Neither parent testified at the
adjudicatory hearing or otherwise presented any evidence. The circuit court ultimately
adjudicated petitioner as an abusing parent, based on having provided A.A.-1 and her friend
alcohol and engaging in a sexual game with the children.3 The circuit court also found evidence
of medical neglect sufficient to adjudicate the parents.

        In January of 2017, the circuit court held a dispositional hearing, during which petitioner
requested an improvement period. The circuit court denied this motion on a finding that she
failed to establish that she was likely to fully participate in an improvement period. The circuit
court also found that petitioner failed to acknowledge the abuse and terminated her parental
rights to the children.4 It is from the dispositional order that petitioner appeals.

       The Court has previously established the following standard of review:



       3
         The circuit court actually adjudicated petitioner as an “abusing and neglecting parent.”
However, West Virginia Code § 49-1-201 defines “abusing parent” as “ a parent . . . whose
conduct has been adjudicated by the court to constitute child abuse or neglect as alleged in the
petition charging child abuse or neglect.” Because the statutory definition of “abusing parent’
encompasses a parent who has been adjudicated of abuse or neglect, we will use the correct
statutory term throughout this memorandum decision.
       4
        The parents’ parental rights to M.A. and A.A.-2 were terminated below. According to
the record, A.A.-1 reached the age of majority during the proceedings and was subsequently
dismissed. According to the parties, M.A. and A.A.-2 are currently placed together in a foster
home with a permanency plan of adoption in that home.
                                                 2

               “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 proceedings below.

        First, petitioner argues that the circuit court erred in adjudicating her as an abusing
parent. In support of this assignment of error, petitioner argues that the evidence was insufficient
to support her adjudication, as the DHHR failed to establish that the parents sexually abused the
child. This argument, however, misstates the circuit court’s findings at adjudication, as it did not
make a finding that petitioner engaged in sexual abuse. Specifically, the circuit court found that
“[c]lear and convincing evidence exists that there was alcohol at the home of [the parents] on the
night testified to by the witnesses, and that the alcohol was poured by one of the [parents] for the
two teenage girls.” While the circuit court went on to find that evidence also established that the
parents played a game with the children that included sexual innuendoes, the relevant finding
from the circuit court was that “the evidence shows that there was clearly inappropriate conduct
by the . . . parents toward teenage children, sufficient to show clear and convincing evidence”
that petitioner was an abusing parent. We agree.

       In addressing the burden of proof at adjudication, we have held as follows:

               “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).

Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (citations omitted). Here, the
record is clear that the DHHR met its burden. While petitioner argues that the evidence at
adjudication was insufficient due to the fact that A.A.-1 testified that she fabricated the abuse in
question because the father would not allow her boyfriend to spend the night in the home, we do
not find this argument persuasive. Simply put, petitioner fails to acknowledge the additional
evidence that called A.A.-1’s credibility into question. This included evidence of several text
messages to her friend that indicated A.A.-1 was lying about her recantation in order to protect

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her siblings, which the friend refused to do. While petitioner argues that A.A.-1’s friend testified
that she could not recall who provided the children the alcohol, she ignores the fact that the
friend testified that petitioner not only permitted the children to consume the alcohol in her
presence, but also consumed alcohol with the children. This conduct alone constitutes abuse
sufficient upon which to adjudicate petitioner as an abusing parent.

       West Virginia Code § 49-1-201 defines an “abused child[,]” in part, as

       a child whose health or welfare is being harmed or threatened by . . . [a] parent,
       guardian or custodian who knowingly or intentionally inflicts, attempts to inflict
       or knowingly allows another person to inflict, physical injury or mental or
       emotional injury, upon the child or another child in the home.

Here, the record overwhelmingly established that petitioner abused the children by knowingly
inflicting or attempting to inflict mental or emotional injury upon them, among other issues. The
record shows that petitioner actively consumed alcohol with two children, in addition to other
improper behavior. Further, the circuit court did not find A.A.-1’s testimony concerning her
recantation to be credible, especially in light of the evidence establishing that she was being
untruthful in her recantation in order to protect her sibling. On the contrary, A.A.-1’s friend
testified to petitioner’s actions consistent with her prior statement to law enforcement, as
established by testimony from both the friend and the investigating officer. We have 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). Accordingly, we find no error in the circuit court’s adjudication of
petitioner.5

       Finally, petitioner argues that the circuit court erred in denying her motion for a post­
adjudicatory improvement period before terminating her parental rights. In support of this
assignment of error, petitioner argues that she complied with the services offered during the
proceedings and, thus, established that she was likely to fully comply with the terms of an
improvement period. We do not agree. Specifically, the circuit court found that the parents

       5
         In support of petitioner’s assignment of error regarding the sufficiency of the evidence at
adjudication, she additionally takes issue with several aspects of multiple witnesses’ testimony
regarding the specifics of her alleged abuse and neglect. This includes her argument that the
DHHR failed to prove several factual allegations, such as whether the children wore only their
underwear on the night in question or wrestled or kissed during the game. According to
petitioner, the DHHR’s alleged failure to establish these facts resulted in her adjudication upon
insufficient evidence. The Court finds, however, that it is unnecessary to address these additional
issues, as petitioner’s conduct regarding the children consuming alcohol in her presence is
sufficient to support adjudication, as set forth above. Petitioner additionally argues that the
evidence establishing medical neglect was insufficient. Again, because the evidence at
adjudication regarding petitioner’s conduct in permitting children to consume alcohol in her
presence is sufficient to support adjudication, it is unnecessary to address this argument on
appeal.
                                                 4

“ha[d] not acknowledged any deficiencies in their parenting[,]” and that their “failure to
acknowledge the abuse and neglect at adjudication in this matter render[ed] them unable to meet
[the] burden [necessary to obtain an improvement period].” This is in keeping with our prior
holdings, wherein we have stated 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)). Simply put, petitioner’s failure to acknowledge
the conditions of abuse resulted in her inability to establish that she was likely to fully participate
in an improvement period, as required by West Virginia Code § 49-4-610(2)(B). While petitioner
argues that her attendance at hearings and multidisciplinary team meetings, as well as negative
drug screens, established that she was likely to fully comply with an improvement period, she
further admits that she failed to take the stand to testify to her possible compliance with a
proposed improvement period. As such, we find no error in the circuit court’s denial of
petitioner’s motion for a post-adjudicatory improvement period.

       Additionally, the circuit court specifically found that there was no reasonable likelihood
the conditions of abuse could be substantially corrected. 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 in the near future 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
       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 .
       ...

As set forth above, petitioner refused to acknowledge any deficiency in her parenting
whatsoever, thereby making her unable to follow through with a reasonable family case plan
designed to remedy such conditions. The circuit court further found that termination of
petitioner’s parental rights was necessary for the children’s welfare. Pursuant to West Virginia
Code § 49-4-604(b)(6), circuit courts are directed to terminate parental rights upon such findings.
Accordingly, we find no error in the termination of petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
March 27, 2017, order is hereby affirmed.


                                                                                            Affirmed.

                                                  5

ISSUED: October 23, 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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