                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS
                            FILED
                                                                             November 22, 2017
                                                                               EDYTHE NASH GAISER, CLERK
In re: N.C., L.C., J.C., and A.C.                                              SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

No. 17-0683 (Taylor County 16-JA-82, 16-JA-83, 16-JA-84 & 16-JA-85)


                                MEMORANDUM DECISION
        Petitioner Mother S.C., by counsel Malinda Ferris, appeals the Circuit Court of Taylor
County’s June 21, 2017, order terminating her custodial rights to N.C. and her parental rights to
L.C., J.C., and A.C.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”), Mary S. Nelson, filed a response on behalf of the children in
support of the circuit court’s order. Petitioner filed a reply. On appeal, petitioner argues that the
circuit court erred in adjudicating her as an abusing parent and terminating her custodial rights to
N.C. and her parental rights to L.C., J.C., and A.C.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 October of 2016, the DHHR filed a petition against petitioner alleging she abused and
neglected her three children and another child in her custody, N.C., by exposing them to her live-
in boyfriend, D.K., who previously voluntarily relinquished his parental rights to his biological
children during abuse and neglect proceedings based upon domestic violence, drug abuse, and
mental health issues.3 The petition also alleged that D.K. had an extensive criminal history. The
circuit court held a preliminary hearing at which petitioner stated that she had ended her


       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
         N.C.’s biological mother’s parental rights were terminated prior to the initiation of these
abuse and neglect proceedings. N.C. remained in S.C.’s custody until the petition was filed in the
current abuse and neglect proceedings. L.C., J.C. and A.C. are S.C.’s biological children.
       3
           None of D.K.’s children are at issue in this appeal.

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relationship with D.K. However, the DHHR presented testimony that petitioner was still living
with D.K., as recently as two days prior to the hearing.

        In February of 2017, the circuit court held an adjudicatory hearing at which petitioner
represented that she was no longer in a relationship with D.K., but that they remained in contact
as friends. She also explained that she found D.K. to be an appropriate person with which to have
a relationship and that she did not believe her children would be harmed by exposure to him. The
circuit court noted that D.K. had sexually molested his niece in 2015 and that there was a
protective order entered against him with regard to that child. The circuit court took judicial
notice of the molestation as well as his prior abuse and neglect cases, in which extensive findings
were made pertaining to his mental health problems and substance abuse issues.

        When the circuit court inquired as to a vacation that petitioner and D.K. allegedly took to
Savannah, Georgia, petitioner explained that it was a coincidence that they both were in Georgia
at the same time. She later stated that she and D.K. planned to meet in Georgia to exchange
paperwork. The DHHR presented testimony that petitioner had other issues with parenting
unrelated to her relationship with D.K. that needed to be addressed. The DHHR also presented
testimony that the children told their caseworker that they had seen D.K. and their uncle snorting
drugs in the children’s home. The DHHR further expressed concerns with the fact that petitioner
did not seem to realize that there was a problem with her children being around D.K. At the
conclusion of the hearing, petitioner moved for a post-adjudicatory improvement period, which
the circuit court denied. The circuit court found no likelihood that petitioner would be successful
in an improvement period inasmuch as she failed to recognize the abuse and neglect she caused
to all four of the children by exposing them to D.K. The circuit court found all four of the
children were abused and neglected pursuant to West Virginia Code § 49-1-201.

        In April of 2017, the circuit court held a dispositional hearing wherein petitioner orally
moved for a post-adjudicatory improvement period. However, petitioner declined to present any
evidence or testimony on her behalf. The circuit court took judicial notice of the prior evidence,
and the DHHR presented additional testimony that petitioner continued her relationship with
D.K. The circuit court noted that the children had disclosed drug abuse in their home by D.K.
and that D.K. is “mean.” The circuit court found that there was no reasonable likelihood that
petitioner could substantially correct the conditions of abuse and neglect in the near future and
that the children’s welfare necessitated termination. Ultimately, the circuit court terminated
petitioner’s custodial rights to N.C. and terminated her parental rights to L.C., J.C., and A.C. in
its June 21, 2017, order.4 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

       4
        C.C., the non-abusing father of all four of the children retained his rights. According to
the DHHR and the guardian, the children are in their father’s custody and the permanency plan is
for them to remain there.

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       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 circuit court’s proceedings below.

        First, petitioner argues that the circuit court erred in adjudicating her as an abusing
parent. She argues that she did not engage in any acts of physical, mental, or emotional abuse
and that there were no allegations that D.K. directly abused or neglected the children. West
Virginia Code § 49-1-201 provides that “‘[a]bused child’ means a child whose health or welfare
is being harmed or threatened by: (A) 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.” West Virginia
Code § 49-1-201 also provides that “‘[n]eglected child means a child: (A) Whose 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 . . . supervision[.]”

        Here, the record on appeal shows that petitioner attempted to threaten the health and
welfare of the children and failed to supply necessary supervision by allowing D.K. to reside in
the home with the children when she knew of his prior abuse and neglect history which resulted
in the voluntary termination of his parental rights to his biological children. Furthermore, she
chose to continue a relationship with D.K. even after the children were removed from her
custody based upon that relationship, and lied to the circuit court about her relationship with
D.K. Petitioner’s knowledge of D.K.’s history of abuse and neglect and her decision to allow
him to reside in the home with the children was sufficient evidence to adjudicate petitioner as an
abusing parent. Based on this evidence, we find no error in the circuit court’s adjudication of
petitioner as an abusing parent.

        Petitioner also argues that the circuit court erred in terminating her parental rights and ,
instead, should have considered a less-restrictive alternative. We disagree. West Virginia Code §
49-4-604(b)(6) provides that circuit courts are to terminate parental rights upon findings that
there is “no reasonable likelihood that the conditions of neglect or abuse can be substantially
corrected in the near future” and that termination is necessary for the children’s welfare. West
Virginia Code § 49-4-604(c)(3) provides that no reasonable likelihood that the conditions of
abuse or neglect can be substantially corrected exists when “[t]he abusing parent . . . ha[s] not
responded to or followed through with a reasonable family case plan or other rehabilitative
efforts[.]”



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        As discussed above, the record on appeal shows that petitioner threatened the health and
welfare of the children and failed to provide them necessary supervision by allowing D.K. to
reside in the home with the children. The DHHR presented testimony that D.K. had an extensive
criminal history; a history of domestic violence, abuse and neglect; and substance abuse and
mental health issues. Further, petitioner was aware of D.K.’s criminal history, continued a
relationship with him, and did not see a problem with him being around the children. 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)).

       The circuit court found that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future and that the children’s
welfare necessitated termination. As previously stated, pursuant to West Virginia Code § 49-4­
604(b)(6), circuit courts are directed to terminate parental rights upon these findings.

       Further, we have previously held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49-6-5 [now West Virginia Code § 49-4-604] . . . 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) [now West Virginia Code
       § 49-4-604(c)] . . . 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).

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). For these reasons, we find no
error in the circuit court’s termination of petitioner’s custodial rights to N.C. and the termination
of her parental rights to L.C., J.C., and A.C.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 21, 2017, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: November 22, 2017




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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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