                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: J.D. II, J.D., & K.D.                                                        FILED
                                                                               November 24, 2014
No. 14-0653 (Calhoun County 13-JA-65 through 13-JA-67)                        RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA


                               MEMORANDUM DECISION
        Petitioner Mother, by counsel Erica Brannon Gunn, appeals the June 11, 2014, order of
the Circuit Court of Calhoun County that terminated her parental rights to seven-year-old J.D. II,
five-year-old J.D., and four-year-old K.D. The children’s guardian ad litem, Tony Morgan, filed
a response in support of the circuit court’s order. The Department of Health and Human
Resources (“DHHR”), by its counsel Lee A. Niezgoda, also filed a response in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in making the
following findings: (1) that petitioner should have recognized signs that another child in the
home, S.D., was being abused by her father,1 (2) that petitioner’s testimony about her lack of
knowledge about the sexual abuse was “not credible and was misleading,” and (3) that
petitioner’s testimony about where her children slept in the household was also misleading, not
credible, and indicative of her continued failure to cooperate and acknowledge her lack of
judgment. Petitioner also argues that the circuit court erred by not making the proper findings
necessary to terminate parental rights, denying petitioner an improvement period, and
terminating her 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.

        In November of 2013, the DHHR filed an abuse and neglect petition against petitioner,
petitioner’s husband, and S.D.’s parents. The petition alleged that all of the parents, subject
children, S.D., and S.D.’s brother lived in the same home when S.D.’s father was sexually
abusing S.D. The petition alleged that all four parents had knowledge of this sexual abuse and
failed to protect S.D. and the other children from this abuse and incest. The petition alleged that,
instead, the parents blamed S.D. for “bringing the sexual abuse upon herself.” The petition also
alleged that the parents threatened the children’s health through their inability to supply them
with a safe and stable home environment and through their inadequate health and dental care, as

       1
          Child S.D. is not petitioner’s biological child and is not a subject child as it relates to
this appeal. S.D.’s father and mother were also named in the underlying abuse and neglect
petition. S.D. is the sister of petitioner’s husband.


                                                 1
exhibited by the children’s tooth decay, chronic head lice, and periods of hunger. The petition
also alleged that due to the aggravated circumstances of sexual abuse, the DHHR was not
required to offer services in the home.

        After multiple adjudicatory hearings, including one in camera hearing with S.D., the
circuit court adjudicated the parents as abusing parents and the children as abused and neglected
children. The circuit court found that when the entire family previously resided together in
Braxton County, there were multiple serious referrals and allegations made to Child Protective
Services against the adults concerning incest and sexual misconduct; although investigations
were made, the children were never removed from the home. The circuit court further found that
sexual abuse against S.D., by her father, had occurred when the family lived in Braxton County
and continued when the family moved to Calhoun County, and was continuing at the time of the
children’s removal. The circuit court adjudicated petitioner and her husband based upon the
following: exposing the children to the risk of possible abuse by S.D.’s father; their failure to
take any remedial action to protect S.D. from further sexual abuse even after petitioner walked in
on S.D.’s brother sexually abusing S.D.; petitioner and her husband’s decision to allow their
children to live in the same home as S.D.’s parents and to sleep in an adjoining room to S.D.’s
parents, despite signs that S.D. was being sexually abused by her father; their failure to take
action after witnessing S.D.’s father physically assault S.D., who was then pregnant with his
child, by punching her on the floor, causing her to suffer a blackened eye; and their failure to
provide the children with adequate health and dental care.

        Thereafter, petitioner filed a motion for an improvement period prior to the circuit court’s
dispositional hearing. Following the dispositional hearing, the circuit court denied this motion
and terminated the parental rights of petitioner and her husband. The circuit court found that the
serious sexual assault in the home made efforts to preserve the family unreasonable and
impossible; that S.D.’s sexual abuser would be a serious threat to any children in the home; and
that the parents’ failure to appear for two scheduled psychological evaluations indicated their
defensiveness, guilt, and unwillingness to participate and cooperate with a family case plan. The
circuit court also found that petitioner’s testimony concerning her children’s sleeping
arrangements, and her belief that S.D. was not being sexually abused, was not credible and was
evidence of her denial that sexual abuse was occurring in the home. The circuit court also found
that the subject children displayed significant symptoms of trauma from continual abuse and did
not have a bond with their parents. After also finding that the parents lacked the ability to parent
and protect the children, that there was no reasonable likelihood that the abuse and neglect could
be substantially corrected, and that termination of parental rights was in the children’s best
interests, the circuit court terminated the parents’ parental rights to the children. Petitioner now
appeals.

       This 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


                                                 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 of the record, we find no error in the circuit court’s findings, its denial
of petitioner’s motion for an improvement period, and its termination of petitioner’s parental
rights. We have held that “in the context of abuse and neglect proceedings, the circuit court is the
entity charged with weighing the credibility of witnesses and rendering findings of fact.” In re
Emily, 208 W.Va. 325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis
W., 206 W.Va. 478, 525 S.E.2d 669 (1999)). Under West Virginia Code § 49-1-3(1)(A), an
“abused child” is one “whose health or welfare is 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.” We also bear in mind the following:

              The term “knowingly” as used in West Virginia Code § 49–1–3(a)(1)
       (1995) does not require that a parent actually be present at the time the abuse
       occurs, but rather that the parent was presented with sufficient facts from which
       he/she could have and should have recognized that abuse has occurred.

Syl. Pt. 7, W.Va. Dept. of Health and Human Res. ex rel. Wright v. Doris S., 197 W.Va. 489, 475
S.E.2d 865 (1996). The record reveals that petitioner testified that she once walked into a room
where S.D. and S.D.’s brother were together and sitting very close to each other, but with their
clothes on. After seeing them together like this, petitioner testified that she did not feel
uncomfortable, but that she worried about S.D. and told her husband that he should go check on
S.D. and S.D.’s brother and “make sure everything was okay.” In contrast to petitioner’s
testimony, S.D. previously testified, in camera, that when petitioner walked in on S.D. and her
brother, S.D.’s brother was sexually abusing S.D. and that petitioner thereafter notified her
husband of this abuse, but that neither petitioner nor her husband did anything to remedy the
abuse. When petitioner was questioned about S.D.’s testimony, petitioner testified that she would
have no reason to believe that S.D. would lie about being abused, but insisted that she never
witnessed S.D.’s brother sexually abusing S.D. Further, petitioner testified that her children
would fall asleep in the living room beside S.D.’s father’s room, but she was not concerned. The
record also reveals that petitioner and her husband were present when S.D. and S.D.’s father
would leave the home for unexplained periods of time and that they were present when S.D.’s
father physically assaulted her. This evidence supports the circuit court’s findings in its orders
below. We find no reasons to overturn these findings.




                                                 3
       This Court further finds no error with the circuit court’s termination of petitioner’s
parental rights without an improvement period. Under West Virginia Code § 49-6-12(c), circuit
courts have the discretion to grant an improvement period at disposition if the subject parent
demonstrates by clear and convincing evidence that he or she will likely fully participate in the
improvement period. We have also held as follows:

       [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.

W.Va. Dept. of Health and Human Res. v. Doris S., 197 W.Va. 489, 498, 475 S.E.2d 865, 874
(1996). Moreover, West Virginia Code § 49-6-5(a)(7)(A) directs that the DHHR is not required
to make reasonable efforts to preserve the family if the circuit court determines that the parent
has subjected the children in the home to aggravated circumstances of sexual abuse.

        The record reveals that, at the dispositional hearing, petitioner continued to deny that she
ever witnessed any sexual abuse against S.D. or had any reason to believe that sexual abuse
existed in the home. Petitioner also missed appointments for her psychological evaluation both
times it was scheduled. Our review of the record shows that petitioner did not meet her burden in
proving that she would fully participate in an improvement period. Under these circumstances,
the DHHR was not required to make reasonable efforts to preserve the family. Accordingly, we
find no error in the circuit court’s denial of an improvement period for petitioner.

        Petitioner also argues that, in terminating her parental rights, the circuit court erroneously
failed to make a finding that there was no reasonable likelihood that the conditions of abuse and
neglect could be substantially corrected. However, our review of the record shows that the circuit
court clearly made this specific finding as its twenty-fourth finding of fact on the sixth page of
the dispositional order.2 The circuit court further found that the children’s welfare would be
seriously threatened if they were returned to their parents. Pursuant to West Virginia Code § 49­
6-5(a)(6), circuit courts are directed to terminate parental rights upon such findings.

      For the foregoing reasons, we affirm the June 11, 2014, order of the Circuit Court of
Calhoun County terminating petitioner’s parental rights to J.D. II, J.D., and K.D.

                                                                                           Affirmed.




       2
           The circuit court clearly found as follows:

       24. There is no reasonable likelihood that the conditions of child abuse and
       neglect can be substantially corrected in the foreseeable future considering the
       [children’s] need for continuity of care and caretakers and the amount of time
       required for the children to be integrated into a stable and permanent home
       environment.

                                                   4
ISSUED: November 24, 2014

CONCURRED IN BY:

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




                                 5
