                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS                            FILED
                                                                            June 21, 2016
                                                                            RORY L. PERRY II, CLERK
In Re: Z.H.-1, Z.H.-2, J.H.-1, J.H.-2, and S.H.                           SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

No. 16-0079 (Mercer County 15-JA-096-OA, 15-JA-097-OA, 15-JA-098-OA, 15-JA-099-OA,
and 15-JA-100-OA)


                              MEMORANDUM DECISION
        Petitioner Mother A.H., by counsel John G. Byrd, appeals the Circuit Court of Mercer
County’s January 4, 2016, order terminating her parental rights to one-year-old Z.H.-1, one-year­
old Z.H.-2, four-year-old J.H.-1, seven-year-old J.H.-2, and eight-year-old S.H.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed
its response in support of the circuit court’s order. The guardian ad litem (“guardian”), William
O. Huffman, filed a response on behalf of the children also in support of the circuit court’s order.
On appeal, petitioner argues that the circuit court erred in failing to require the DHHR to make a
thorough effort to determine whether she could properly care for the children with intensive
long-term assistance.

        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 July of 2015, the DHHR filed an abuse and neglect petition against petitioner. In that
petition, the DHHR alleged that petitioner physically and verbally abused the children by hitting
them in the face and threatening them; resided with a convicted sex offender and permitted the
children to reside with him; was characterized by her mother as “not in her right state of mind to
care for the children”; and allowed one of her twin one-year-olds to develop a severe diaper rash.

        In August and September of 2015, petitioner was evaluated by two psychologists. First, a
psychologist with Laurel Ridge Psychological Associates evaluated petitioner and found that she
“reflects average levels of intellect and academic achievement,” although she demonstrated a

       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, as the children share initials, we have designated
them as Z.H.-1, Z.H.-2, J.H.-1, and J.H.-2 in this memorandum decision.

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possible personality disorder. Second, Dr. Timothy Saar, a licensed psychologist, evaluated
petitioner and found that “[i]t is unlikely additional services will produce improvement [in
petitioner’s parenting], and, as a result, none are recommended.”

        In September of 2015, the circuit court held an adjudicatory hearing. Given the evidence
of physical and other abuses, the circuit court adjudicated petitioner as an abusing parent.
Petitioner does not appear to have properly requested an improvement period.

        In December of 2015, the circuit court held a dispositional hearing. The circuit court
heard testimony from the two psychologists who evaluated petitioner in August and September
of 2015, respectively. A psychologist for three of the children also provided testimony. She
explained that the children exhibited sexualized behaviors and disclosed sexual activities and
physical abuse in petitioner’s home. The children’s psychologist explained that their disclosures
indicated that they were at some time the victims, not only of physical abuse, but of sexual abuse
as well. By order entered on January 4, 2016, the circuit court concluded that there was no
reasonable likelihood that petitioner could substantially correct the conditions of neglect in the
near future and that termination was in the children’s best interests. Therefore, the circuit court
terminated petitioner’s parental rights to the children. This appeal followed.

       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
       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). Further, our case law provides
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)); see also Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d
531, 538 (1997) (stating 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.”).




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        On appeal, petitioner argues that the circuit court erred in failing to require the DHHR to
make a thorough effort to determine whether she could properly care for the children with
intensive long-term assistance. This Court has explained that

               [w]here allegations of neglect are made against parents based on
       intellectual incapacity of such parent(s) and their consequent inability to
       adequately care for their children, termination of rights should occur only after the
       social services system makes a thorough effort to determine whether the parent(s)
       can adequately care for the children with intensive long-term assistance. In such
       case, however, the determination of whether the parents can function with such
       assistance should be made as soon as possible in order to maximize the
       child(ren)’s chances for a permanent placement.

Syl. Pt. 4, In re Billy Joe M., 206 W.Va. 1, 521 S.E.2d 173 (1999). Therefore, an effort to
establish long-term assistance may be required in child abuse and neglect based on the
intellectual incapacity of the parents.

        In the case sub judice, the DHHR was not required to make a thorough effort to
determine whether petitioner could care for her children with intensive long-term assistance
because this is not a case based upon intellectual incapacity. To the contrary, the psychologist
from Laurel Ridge Psychological Associates determined that petitioner exhibited “average levels
of intellect and academic achievement[.]” There is no indication in the record on appeal that
petitioner’s possible personality disorder is equivalent to an intellectual incapacity as
contemplated in In Re: Billy Joe M. Further, even assuming Syllabus Point 4 of In Re: Billy Joe
M. applied to this case, Dr. Saar explained in his report that he knew of no services that would
improve petitioner’s parenting. Therefore, given the circumstances of this case and the inability
of intensive long-term assistance to correct the conditions of neglect or abuse, we find no clear
error in the circuit court’s order terminating petitioner’s parental rights.

       For the foregoing reasons, we find no error in the circuit court’s January 4, 2016, order,
and we hereby affirm the same.


                                                                                         Affirmed.

ISSUED: June 21, 2016


CONCURRED IN BY:

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


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