                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                      FILED
In re A.S.
                                                                                 February 23, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 17-0785 (Kanawha County 17-JA-99)
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 


                                                          MEMORANDUM DECISION
        Petitioner Father J.S., by counsel Rebecca Stollar Johnson, appeals the Circuit Court of
Kanawha County’s August 2, 2017, order terminating his parental rights to A.S.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”), Jennifer R.
Victor, filed a response on behalf of the child in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in adjudicating him as an abusing parent and denying
him a post-adjudicatory improvement period.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 February of 2016, the DHHR filed an abuse and neglect petition that alleged the
parents neglected the child. According to the petition, the parents were arrested earlier that
month and charged criminally with child neglect creating risk of injury when law enforcement
found the parents and the child in a residence described as “dangerous and unfit for human
habitation.” The petition alleged that the home was filled with mold, mildew, unprotected
electrical connections and an exposed oven face. Additionally, there were roaches and roach
droppings on every surface in the kitchen, and the dishwasher was filled with mold, mildew,
insects, and insect droppings. Officers also discovered drug paraphernalia, including used
needles, within the child’s reach. Additionally, the petition alleged a history of domestic violence
between the parents and drug use. Specifically, the DHHR indicated that the prior month,
petitioner tested positive for benzodiazepines and opiates, which required the administration of
                                                            
              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
        On appeal, petitioner does not raise a specific assignment of error regarding the
termination of his parental rights.
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Narcan. Further, the mother tested positive for a number of drugs during her pregnancy with the
child, who also tested positive for drugs at birth. Finally, the petition alleged that the mother’s
rights to an older child were previously involuntarily terminated. During a later preliminary
hearing, the circuit court heard testimony from a law enforcement officer concerning the
conditions in the home and also admitted into evidence the criminal complaints filed against the
parents.

        In March of 2017, the circuit court held an adjudicatory hearing, during which it heard
testimony from petitioner and the child’s paternal grandmother. The circuit court admitted a
DHHR court summary into evidence and also considered all previously-introduced evidence.
Based upon the evidence, the circuit court found that the home from which the child was
removed “was unsafe and not suitable for human habitation.” According to the evidence, the
home “was contaminated with rodent and insect feces and mold[,]” in addition to being
“structurally dangerous, with missing flooring, nonfunctioning plumbing, and rotting cabinetry.”
Moreover, the circuit court found that the home “was covered with spoiled food and open
garbage” and also “contained drug paraphernalia such as straws, razor blades and matches.”
Based upon this evidence, the circuit court found that the parents “knowingly exposed the child
to a filthy, dangerous environment.” As such, the circuit court adjudicated petitioner as an
abusing parent.

        In May of 2017, the circuit court held a dispositional hearing. Petitioner moved for a
post-adjudicatory improvement period, but the circuit court ultimately denied that motion. The
circuit court based this ruling, in part, upon evidence that petitioner was not “willing to
acknowledge any parenting deficiencies amenable to correction.” The circuit court also found
that petitioner’s testimony during the proceedings was not credible because he “exhibited mental
and emotional instability and bizarre behavior.” Based upon this evidence, the circuit court found
that petitioner “failed to demonstrate that [he was] likely to comply with the terms and
conditions of a post-adjudicatory improvement period.” Thereafter, the circuit court terminated
petitioner’s parental rights to the child.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

                                                            
              3
         In addition to the termination of petitioner’s parental rights, the parental rights of the
mother to the child were terminated below. According to respondents, the permanency plan for
the child is adoption in the current relative placement.


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       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 him as an abusing
parent. In support of this assignment of error, petitioner argues that the DHHR failed to present
any evidence of drug use or domestic violence. He further argues that the home from which the
child was removed was not his residence and that he had suitable housing for the child during the
proceedings. Moreover, petitioner argues that law enforcement responded to the home several
days prior to removal, but permitted the child to remain in the home, thus establishing that it was
appropriate for the child. We do not find these arguments compelling.

       In regard to 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). Based
upon this holding, it is clear that petitioner’s arguments are without merit. First, the fact that the
DHHR did not establish petitioner’s drug abuse or the presence of domestic violence in the home
is immaterial, given that the circuit court ultimately adjudicated petitioner of exposing the child
to the uninhabitable environment. Similarly, the issue of whether or not the home in question
was petitioner’s primary residence is also immaterial, given that the evidence established that
petitioner often spent the night in the home with the child and that the child was found in the
home. In fact, testimony at the preliminary hearing established that petitioner “had been residing
there for some time” after having been removed from a different residence.

        Finally, the fact that law enforcement permitted the child to remain in the home prior to
the ultimate removal has no bearing on whether or not the DHHR satisfied its legal burden of
establishing petitioner was an abusing parent. Importantly, testimony at the preliminary hearing
indicated that the home’s condition deteriorated between the initial contact with law enforcement
and the child’s removal. Further, testimony established that the child was permitted to remain in
the home upon the grandmother’s assurance that she could keep the child away from the
dangerous conditions in the part of the home in which the parents were staying, while the parents
were removed. Ultimately, because petitioner continued to expose the child to the specific
conditions that law enforcement identified as inappropriate, the child was removed from the
home.



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        Contrary to petitioner’s arguments, the DHHR clearly satisfied its burden of proof
regarding adjudication. While petitioner argues that the DHHR presented only one witness in
support of its burden, he fails to acknowledge that testimony from himself and his mother, the
only witnesses presented on his behalf, was found entirely incredible. Specifically, the circuit
court found that the grandmother’s “testimony was not credible” because she was not candid. As
a result, the circuit court held that it would “disregard her testimony entirely.” Moreover, the
circuit court found petitioner’s testimony during the entire proceedings lacked credibility
because of his “mental and emotional instability and bizarre behavior.” The DHHR, however,
presented extensive testimony concerning the deplorable condition of the home, which led the
circuit court to find that petitioner “knowingly exposed the child to a filthy, dangerous
environment” because the home from which the child was removed “was unsafe and not suitable
for human habitation.”

        West Virginia Code § 49-1-201 defines “neglected child” as, in part, one “[w]hose
physical or mental health is harmed or threatened by a present refusal, failure or inability of the
child’s parent . . . to supply the child with necessary shelter [or] supervision[.]” The evidence
below clearly established that petitioner failed to provide the child with necessary shelter or
supervision, as the home in question was not only uninhabitable, but also contained many
dangerous conditions and items that were within the child’s reach. Accordingly, we find no error
in the circuit court’s adjudication.

        Finally, petitioner argues that the circuit court erred in denying his motion for a post-
adjudicatory improvement period. We do not agree. While petitioner argues that the evidence at
disposition established that he would be willing to fully comply with the terms of an
improvement period, the record is clear that petitioner simply failed to acknowledge his
parenting deficiencies such that an improvement period would have been inappropriate. On
appeal, petitioner focuses on the DHHR’s failure to corroborate its allegation that he failed a
drug screen by obtaining the results of the screen in question. He further stresses that substance
abuse was not an issue for which he was adjudicated. However, petitioner ignores the fact that he
failed to acknowledge the conditions of abuse and neglect for which he was adjudicated.

        Specifically, petitioner denied many of the allegations from law enforcement at the
dispositional hearing. Although petitioner testified that there were “some issues” with the home
in question, including holes in the floor, he claimed that there was no drug paraphernalia in the
home or that, if there was, it belonged to someone else. Alternatively, petitioner claimed that law
enforcement lied about the presence of drug paraphernalia, as evidenced by their failure to
provide photographic evidence of the same. Petitioner further blamed his arrest and the child’s
subsequent removal on harassment and abuse from law enforcement. Ultimately, petitioner
acknowledged some personal problems in the past, but claimed that he fixed them upon the birth
of the child. This evidences petitioner’s failure to acknowledge the conditions of abuse and
neglect that necessitated the child’s removal. We have previously 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

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       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)).

        We have also noted that the decision to grant or deny an improvement period rests in the
sound discretion of the circuit court. See In re: M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345
(2015) (holding that “West Virginia law allows the circuit court discretion in deciding whether to
grant a parent an improvement period”); Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479
S.E.2d 589 (1996) (holding that “[i]t is within the court’s discretion to grant an improvement
period within the applicable statutory requirements”). Because petitioner failed to acknowledge
the conditions of abuse and neglect that necessitated the petition’s filing, we find no abuse of
discretion in the circuit court’s denial of his motion for a post-adjudicatory improvement period.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 2, 2017, order is hereby affirmed.


                                                                                       Affirmed.

ISSUED: February 23, 2018


CONCURRED IN BY:

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

 




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