                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS                               FILED
                                                                           September 19, 2016
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
In re: E.H., D.J., A.J., and B.L.                                                OF WEST VIRGINIA


No. 16-0458 (Mercer County 15-JA-132, 15-JA-133, 15-JA-134, & 15-JA-135)


                              MEMORANDUM DECISION
        Petitioner Father C.H., by counsel David B. Kelley, appeals the Circuit Court of Mercer
County’s March 24, 2016, order terminating his parental, custodial, and guardianship rights to
one-year-old E.H., three-year-old D.J., seven-year-old A.J., and five-year-old B.L.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”), Earl H.
Hager, 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 adjudicating the minor children as abused
and terminating his parental, custodial, and guardianship rights without an improvement period.

        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 August of 2015, the DHHR filed an abuse and neglect petition against the parents.
According to the petition, the parents took E.H., then three months old, to the emergency room
for a head injury after petitioner fell while carrying E.H. Upon arrival at the hospital, E.H. did
not have a pulse and was unresponsive. Thereafter, E.H. developed seizures. Additionally, a CT
scan revealed that E.H. had subdural hematomas. Further medical imaging showed that E.H. had
healing fractures of three rib bones, the right radius bone, and the femur bone. According to the
petition, the parents could not explain E.H.’s injuries. Subsequently, the parents waived their
right to a preliminary hearing.

        In December of 2015, the circuit court held two adjudicatory hearings during which it
heard testimony from multiple witnesses. A physician testified that E.H.’s brain injuries were not

       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).



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consistent with petitioner’s explanation of the events, but that the hemorrhages were instead
consistent with “shaking.” The physician also addressed the fact that E.H.’s broken bones were
not consistent with a fall and that the broken bones occurred prior to this event. Ultimately, the
physician testified that the injuries were the result of child abuse. A West Virginia State Police
Officer further testified that E.H.’s mother admitted to the officer that petitioner pushed her
against a wall while she was pregnant with E.H., and that prior to this incident, she heard a “pop
or snapping noise while [petitioner] was holding E.H.”

        During the adjudicatory hearings, petitioner offered the testimony of two doctors to refute
the DHHR’s witnesses. However, one of petitioner’s witnesses further corroborated the
testimony of the DHHR’s physician that, given all of E.H.’s symptoms, her diagnosis would be
“non-accidental trauma to the brain.” Other witnesses familiar with petitioner and E.H. testified
that they did not see any signs of abuse on any of the children. Petitioner also testified on his
own behalf that he “whipped his children” and “spanked” them with his hand. After considering
the evidence, the circuit court adjudicated E.H. as an abused child and found that there is clear
and convincing evidence that petitioner injured E.H. The circuit court also found that petitioner’s
abuse “rises to the level of [] aggravated circumstance of felonious assault[.]” Despite this
finding, the circuit court granted petitioner supervised visitation with his children.

         In March of 2016, the circuit court held a dispositional hearing which petitioner failed to
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attend. A Child Protective Services worker testified that petitioner failed to exercise any
visitation with his children following the adjudicatory hearing. Ultimately, the circuit court
terminated petitioner’s parental, custodial, and guardianship rights to the children. This appeal
follows.

       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).




       2
           Petitioner’s counsel was present at the dispositional hearing.


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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 adjudication of petitioner as an abusing parent or in terminating his
parental, custodial, and guardianship rights without an improvement period.

        First, petitioner assigns error to the circuit court’s adjudication of him as an abusing
parent. 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.” W.Va. Code § 49-1-3(1)(A) (2012). We have explained that

               “W.Va. Code, 49-6-2(c) [1980], requires the State Department of Welfare
       [now the Department of Human Services], in a child abuse or neglect case, to
       prove ‘conditions existing at the time of the filing of the petition . . . by clear and
       convincing proof.’ The statute, however, does not specify any particular manner
       or mode of testimony or evidence by which the State Department of Welfare 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) (internal citations omitted).

        Petitioner claims the DHHR failed to prove abuse or neglect by clear and convincing
evidence and ignored favorable testimony. This Court has previously held, “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)). “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.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388,
497 S.E.2d 531, 538 (1997). While petitioner presented some favorable testimony, he ignores the
other evidence of abuse. Expert testimony established that E.H.’s hemorrhages were consistent
with “shaking” E.H. and not explained by the version of events proffered by petitioner. Further,
expert testimony established that E.H. suffered five broken bones in the first three months of his
life. Based upon the number of injuries and symptoms, one of petitioner’s own experts opined
that E.H.’s injuries could be classified as “non-accidental trauma to the brain.” Based upon our
review, it is clear that the circuit court considered the evidence as a whole and was presented
with sufficient evidence upon which to base its finding that petitioner “injured” E.H., and “that
such abuse rises to the level of . . . aggravated circumstances[.]”As such, we find no error.

       Lastly, petitioner contends that the circuit court erred in terminating his parental,
custodial, and guardianship rights to his children without granting him an improvement period.
We disagree. Pursuant to § 49-4-610

       the court may grant an improvement period not to exceed six months as a
       disposition pursuant to section six hundred four of this article when (A) The
       respondent moves in writing for the improvement period, [and] when (B) the
       respondent demonstrates, by clear and convincing evidence, that the respondent is


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       likely to fully participate in the improvement period and the court further makes a
       finding, on the record, of the terms of the improvement period.

(Emphasis added.) We have often noted that the decision to grant or deny an improvement period
rests in the sound discretion of the circuit court. In re: M.M., 236 W.Va. 108, 778 S.E.2d 338
(2015) (stating 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”). We have also held that a parent’s
“entitlement to an improvement period is conditioned upon the ability of the parent/respondent to
demonstrate ‘by clear and convincing evidence, that the respondent is likely to fully participate
in the improvement period . . . .’” In re: Charity H., 215 W.Va. 208, 215, 599 S.E.2d 631, 638
(2004).

          Here, the record does not support that petitioner filed a written motion requesting an
improvement period. Be that as it may, petitioner failed to meet his burden of proof of his
likelihood to fully comply. While it is clear that the circuit court granted petitioner supervised
visitation with his children following the adjudicatory hearing, the circuit court also heard
testimony that he failed to visit his children during the underlying proceedings. Furthermore,
petitioner’s argument ignores the circuit court’s finding that the abuse constituted aggravated
circumstances. West Virginia Code § 49-4-604(b)(7) provides, in relevant part, that “the
[DHHR] is not required to make reasonable efforts to preserve the family if the court determines
. . . [t]he parent has subjected the child, another child of the parent or any other child residing in
the same household . . . to aggravated circumstances which include, but are not limited to . . .
chronic abuse.” Therefore, the DHHR was not required to make reasonable efforts to preserve
the family. As such, we find no error in this regard.

       For the foregoing reasons, we find no error in the circuit court’s March 24, 2016, order,
and we hereby affirm the same.


                                                                                           Affirmed.

ISSUED: September 19, 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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