                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

                                                                            FILED
                                                                         March 6, 2014
In Re: H.S.                                                              released at 3:00 p.m.
                                                                         RORY L. PERRY II, CLERK
                                                                       SUPREME COURT OF APPEALS
No. 13-0486 (Kanawha County 12-JA-159)                                     OF WEST VIRGINIA




                              MEMORANDUM DECISION

                The respondent father below and petitioner herein, C.S.1 (hereinafter “father”),
appeals from an order entered April 26, 2013, from the Circuit Court of Kanawha County.
By that order, the circuit court terminated the father’s parental rights and placed the minor
child in the permanent custody of the mother.2 On appeal to this Court, the father argues that
the circuit court erred and asks that his parental rights be reinstated. The West Virginia
Department of Health and Human Resources (hereinafter “WVDHHR”) agrees with the
circuit court’s termination of the father’s parental rights. The guardian ad litem (hereinafter
“guardian”), on behalf of the minor child, does not fully concur with the circuit court’s
disposition of the case. The guardian is clear that he believes termination of the father’s
parental rights was correct. However, the guardian departs from the circuit court in his belief
that the circuit court should have considered post-termination visitation and requests that the
case be remanded for that purpose. Based on the parties’ arguments, the record designated
for our consideration, and the pertinent authorities, we affirm the rulings made by the circuit
court.

               The action before this Court was timely perfected, and the appendix record
accompanied the petition. Based upon the parties’ written submissions and oral arguments,
the portions of the record designated for our consideration, and the pertinent authorities, we
find that the circuit court was correct in terminating the father’s parental rights to the minor
child. Accordingly, we affirm the underlying circuit court order. This Court further finds
that this case presents no new or significant questions of law and, thus, will be disposed of


              1
               “We follow our past practice in juvenile and domestic relations cases which
involve sensitive facts and do not utilize the last names of the parties.” State ex rel. W. Va.
Dep’t of Human Servs. v. Cheryl M., 177 W. Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1
(1987) (citations omitted).
              2
               The mother was a respondent in the underlying action, the result of which was
the mother being awarded permanent custody of the minor child; she is not a party to the
instant proceeding and did not file responsive pleadings herein.
through a memorandum decision as contemplated by Rule 21 of the Revised Rules of
Appellate Procedure.

               The underlying facts of this case began with the WVDHHR’s filing of a
petition for abuse and neglect on July 3, 2012. In the petition, it was alleged that the father
sexually abused and neglected the child. The basis for the allegation was a disclosure the
child made to a therapist that the father “touched her pee-pee” and that she does not like
going to visit her father’s house.

               The preliminary hearing was held July 9, 2012. Marta Gillespie, the therapist
to whom the child made the disclosure, testified that the child’s disclosure was made to her
on two occasions: once at the child’s home during play therapy and once when she visited
the child at school. The child told her therapist that the father would take her out of her
grandparent’s bed at night afer they had all gone to sleep, and he would carry her to another
room and touch her “pee pee.” The child motioned to her privates and said she wished her
father would not touch her there. Further, Ms. Gillespie testified that the child begged her
not to send her back to her father’s house and asked Ms. Gillespie to protect her. Ms.
Gillespie testified that she had no indication in her meetings with the child that would lead
her to think the child was being prompted or induced to tell her anything.

                Thereafter, at the adjudicatory hearing on August 9, 2012, Ms. Gillespie again
testified and stated that she had continued to meet with the child on a regular basis for
therapy. At the most recent session, a week prior to the adjudicatory hearing, the child said
that her father had not touched her privates. However, the child still stated that she did not
want to go visit her father or to stay the night at his home. The minor child then declined to
address the issue further and answered continued questions with “I don’t know.” At the
conclusion of the hearing, the circuit court found that the evidence was clear and convincing
that the child was abused and neglected by the father, and granted supervised visitation based
on the guardian’s request and the child’s tender age of five years.

              On October 15, 2012, the adjudicatory order was entered with the following
findings by the circuit court: “1. That [the child] has disclosed in therapy that her father
touches her ‘pee pee[,]’ [and] 2. [The child] has further disclosed that she does not like her
‘pee pee’ being touched and that she does not like going to her father’s house.” The
WVDHHR’s status report from October 1, 2012, had recommended termination of the
father’s parental rights and for the child to be placed in the mother’s custody. The guardian,




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however, moved for the termination of the mother’s parental rights, which the circuit court
denied.3

                Thereafter, on April 26, 2013, the termination order was entered. In so doing,
the circuit court found that the father had not followed through with a reasonable family case
plan or other rehabilitative services, nor had he made efforts to rectify the circumstances that
led to the filing of the petition. The circuit court terminated the father’s parental rights and
ordered permanent placement of the child with her mother. The father appeals to this Court.

               Generally, in the realm of an abuse and neglect case,
                       [a]lthough 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 the Interest of: Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).
Mindful of the applicable standards, we proceed to consider the parties’ arguments.



              3
                The mother and father had been the subject of two previous petitions, which
eventually were dismissed. As a result of those previous petitions, which are not part of this
appeal, the mother received services. The testimony at the hearings stated that the mother
complied and excelled as a result of the offered services and that there were no current
complaints. The petition presently before this Court originally named the mother as a
respondent based on her inability to provide organized and appropriate care; however, the
mother excelled at the offered services, and the WVDHHR altered its request and asked for
the mother to be granted full custody of the child. The guardian disagreed with placing the
child with the mother; however, no action was taken to appeal the lower court’s ruling, and
it is not a question that is before this Court.

                                               3

               On appeal to this Court, the father assigns error to the circuit court’s
termination of his parental rights. The father asserts that allegations contained in the petition
were unsupported by evidence. Specifically, he contends that the WVDHHR failed to prove
that he touched the child inappropriately. While the guardian appears to agree that the
father’s parental rights should be terminated, the guardian disagrees with the circuit court’s
disposition of the case in that the guardian believes that the lower court failed to consider a
less restrictive alternative and, therefore, asks this Court to remand the case for a
consideration of post-termination visitation. Contrarily, the WVDHHR argues that the
evidence, through the child’s disclosures to the therapist, was clear and convincing proof that
the father abused the child.

                As in all cases involving children, this Court holds paramount the best interests
of the child, while also balancing a parent’s right to his or her child. See Syl. pt. 3, In re
Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“Although parents have substantial rights
that must be protected, the primary goal in cases involving abuse and neglect, as in all family
law matters, must be the health and welfare of the children.”). See also Michael K.T. v. Tina
L.T., 182 W. Va. 399, 405, 387 S.E.2d 866, 872 (1989) (“[T]he best interests of the child is
the polar star by which decisions must be made which affect children[.]” (citation omitted)).
“Though constitutionally protected, the right of the natural parent to the custody of minor
children is not absolute and it may be limited or terminated by the State, as Parens patriae,
if the parent is proved unfit to be entrusted with child care.” Syl. pt. 5, In re Willis, 157
W. Va. 225, 207 S.E.2d 129 (1973).

                 The father argues that there was a lack of evidence to support the circuit court’s
termination of his parental rights. In this regard we have recognized that the allegations of
abuse or neglect must be shown by clear and convincing evidence. See Syl. pt. 3, in part, In
re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995) (“W. Va. Code, 49-6-2(c) . . .
requires . . . in a child abuse or neglect case, [the petitioner] to prove ‘conditions existing at
the time of the filing of the petition . . . by clear and convincing proof.’” (internal citations
omitted)). The lower court found there was clear and convincing evidence that the father
sexually abused the child. The evidence, specifically, was that the child spontaneously
disclosed to the therapist, on two occasions, that she had been sleeping with her grandfather
and grandmother and that her father took her out of the bed in the middle of the night and
took her to the other room and touched her “pee pee.” The therapist stated that the child
motioned toward her private parts during these disclosures. Further, the evidence disclosed
that the child begged not to be sent back to her father’s house. Significantly, the therapist
indicated that she did not think the child was being prompted or influenced to make such
statements. The occurrences when the child refused to talk or stated “no” or “I don’t know”
to inquiries concerning the relationship with her father were explained as instances when the
child was confused, not that the child was recanting her disclosures. Based on the child’s

                                                4

disclosures to her therapist, the child’s fear attached with visiting her father, and the fact that
contact with the father caused the child’s behavior to regress, the father’s parental rights were
terminated.

               We are cognizant that termination of parental rights is an extreme, but
sometimes necessary, step to protect a child when there is no hope that the offending parent’s
behavior will change. See Syl. pt. 4, In the Matter of Jonathan P., 182 W. Va. 302, 387
S.E.2d 537 (1989) (“‘Termination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, W. Va. Code, 49–6–5
[1977] 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) [1977] 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).”). The record in the present case reveals that the
father, because of medication he takes for injuries, cannot care for the child on his own. He
lives with his parents; therefore, the child was cared for by the paternal grandparents much
of the time when she was with her father. The grandmother’s care was found to be troubling
in one of the previous petitions, and the father was specifically ordered that the child was not
allowed to be with his mother, the child’s grandmother. Not only did the father not follow
through with this order, he left the child alone with her grandmother. Significantly, the
underlying testimony was that the child’s severe behavioral issues improved under the
mother’s care and regressed considerably after visits with her father. Because this case
represents the third petition that had been filed regarding this child, it is clear to this Court
that the father has been provided numerous opportunities to comply with court orders and
that his noncompliant behavior illustrates his lack of respect for such orders that were put
into place to protect his child. Significantly, the father has not admitted to sexually abusing
the child. There are no services to be provided to a sexual abuser when the abuser fails to
admit the actions. See West Virginia Dep’t of Health & Human Res. v. Doris S., 197 W. Va.
489, 498, 475 S.E.2d 865, 874 (1996) (stating that failure to acknowledge existence of
problem results in making problem untreatable and improvement period an exercise in futility
at child’s expense).

               Despite the finding of sexual abuse of the child by the father, the guardian
seeks a remand of this case for a consideration of post-termination visitation. We find this
request in contravention of the evidence that the child’s behavior regressed markedly after
visits with her father. See Syl. pt, 5, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692
(1995) (“When parental rights are terminated due to neglect or abuse, the circuit court may
nevertheless in appropriate cases consider whether continued visitation or other contact with
the abusing parent is in the best interest of the child. Among other things, the circuit court
should consider whether a close emotional bond has been established between parent and
child and the child’s wishes, if he or she is of appropriate maturity to make such request. The

                                                5

evidence must indicate that such visitation or continued contact would not be detrimental to
the child’s well being and would be in the child’s best interest.”). In Honaker v. Burnside,
182 W. Va. 448, 452-53, 388 S.E.2d 322, 326 (1989), we stated that “a child’s best interests
must be the primary standard by which his rights to continued contact with other significant
figures in his life are to be determined.” In the instant case, it has been shown that the father
has an inability to provide proper care on his own to the child because of medications needed
by the father. The father’s attempt to parent the child included leaving the child with the
child’s grandparent, despite the lower court’s order that the child not be alone with the
grandparent. Importantly, the child disclosed to her therapist sexual abuse by her father,
which the circuit court found was proved by clear and convincing evidence. Under the facts
of this case, there is no basis upon which to remand the case for a determination of post-
termination visitation, and we decline to do so.

              For the foregoing reasons, we affirm the circuit court’s termination of the
father’s parental rights to the minor child at issue herein.

                                                                                      Affirmed.


ISSUED: March 6, 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




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