                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                     FILED
In Re: S.D. & A.D.                                                                 February 18, 2014

                                                                                RORY L. PERRY II, CLERK

                                                                              SUPREME COURT OF APPEALS

No. 13-0883 (Pocahontas County 12-JA-07 & 12-JA-08)                               OF WEST VIRGINIA




                                 MEMORANDUM DECISION

         Petitioner Father, by counsel Michael R. Whitt, appeals the Circuit Court of Pocahontas
County’s August 5, 2013, order terminating his parental rights to S.D. and A.D. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel William P. Jones,
filed its response in support of the circuit court’s order. The guardian ad litem, Martin V. Saffer,
filed a response on behalf of the children supporting the circuit court’s order. On appeal,
petitioner alleges that the circuit court erred in failing to consider less restrictive dispositional
alternatives, in disregarding procedural rules, and in terminating his parental rights without first
granting an improvement period or requiring the DHHR to make reasonable efforts toward
reunification.

        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 2012, the DHHR filed an emergency ratification petition alleging that the
parents abused the children. According to the petition, a Child Protective Services (“CPS”)
worker received a referral that three-month-old A.D. had sustained a head injury that resulted in a
brain bleed and was being treated at the Greenbrier Valley Hospital emergency room. The CPS
worker and a state trooper responded and interviewed the parents at the hospital, both of whom
stated they did not injure the child or know who did. According to a nurse at the hospital, the
child had bruises to the face, ear, and arm that were not consistent with accidental trauma. Due to
the severity of the injuries, the child was transferred to Charleston Area Medical Center Women
and Children’s Hospital in Charleston, West Virginia.

        The petition further alleged that, in the hours that followed, the CPS worker discovered
that petitioner returned to his residence rather than going to the hospital in Charleston to be with
the child. As such, the CPS worker and trooper went to petitioner’s home for further
investigation. They discovered drug paraphernalia in the home, and petitioner admitted to using
marijuana. The home was cluttered and dirty, with multiple holes in the walls, rat poison scattered
about the kitchen, and numerous dirty bottles with curdled milk. There was also a bassinette with
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a broken leg and a mattress covered in black mold, which petitioner admitted the child had slept
in until as recently as the night before when the bassinette’s leg was broken. The CPS worker and
trooper also viewed multiple videos on petitioner’s cell phone of domestic altercations between
the parents. In one video that petitioner stated was taken the night before, reference was made to
the child’s head injury. Interviews with neighbors indicated that the parents frequently engaged in
domestic altercations. One neighbor even stated that on July 4, 2012, the parents were fighting
and the mother threw A.D. at petitioner and told him to care for the child. Later, the CPS worker
conferred with multiple medical professionals that confirmed A.D.’s injuries were non-accidental.
A.D.’s treating physician, Dr. Mouna Chebib, stated that retinal scanning indicated the child had
been shaken violently, resulting in severe retinal hemorrhages.

        On July 25, 2012, the circuit court held a preliminary hearing and found probable cause to
believe that the children were abused and neglected at the time of removal. The circuit court then
held adjudicatory hearings on April 11, 12, and 15, 2013, and ultimately rejected the DHHR’s
assertion of aggravated circumstances based upon A.D.’s injuries. However, the circuit court did
find the children to be abused and neglected due to evidence of domestic violence, petitioner’s
admitted drug use, drug paraphernalia in the home, the unsanitary conditions in the home, and the
parents’ failure to explain the serious injuries to A.D. The circuit court ordered both parents to
undergo psychological evaluations and deferred ruling on petitioner’s motion for an improvement
period and supervised visitation until the results of his evaluation were known. In July of 2013,
the circuit court held a dispositional hearing, during which it denied petitioner an improvement
period and terminated petitioner’s parental rights. 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 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 denial of petitioner’s
request for an improvement period or in the termination of petitioner’s parental rights. To begin,
West Virginia Code § 49-6-12(b)(2) gives circuit courts discretion in granting post-adjudicatory

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improvement periods upon a showing that the parent will fully participate in the same. The record
in this matter supports the circuit court’s denial because of petitioner’s failure to show, by clear
and convincing evidence, that he would fully comply with the terms of a post-adjudicatory
improvement period.

        Petitioner argues that he satisfied this burden by testifying that he believed he needed
personal and parental improvement, and that he would substantially comply with the terms of an
improvement period. However, this testimony is insufficient to show that petitioner would
substantially comply with the terms of an improvement period in light of his failure to
acknowledge the underlying conditions of abuse that necessitated the children’s removal. While
petitioner argues that “[i]t would be totally unrealistic to place upon [the parents] the affirmative
obligation to admit that one . . . of them had hurt [the child]” because they assert that they were
not responsible for the child’s injuries, this argument fails to address the other issues of abuse
present in the home. As noted in the dispositional order, petitioner’s psychological evaluation
indicated that petitioner “minimized the harm to [the] child, the domestic violence in [the] home,”
and also failed to “acknowledge maltreatment of [the] children . . . .” Further evidence established
that other than obtaining a new residence, petitioner “made no effort to improve [the]
environment in order to safely return the children to the home.”

       We have previously held that

       in 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 Kaitlyn P., 225 W.Va. 123, 126, 690 S.E.2d 131, 134 (2010) (quoting W.Va. Dep’t of Health
and Human Res. v. Doris S., 197 W.Va. 489, 498, 475 S.E.2d 865, 874 (1996)). Based upon the
evidence above, it is clear that petitioner failed to acknowledge the abuse and neglect he
perpetrated on the children. This encompasses more than the severe injuries to A.D.; it also
includes ongoing domestic violence issues and substance abuse. As such, it was not error to deny
petitioner’s motion for a post-adjudicatory improvement period.

         As to petitioner’s argument that the circuit court erred in proceeding to termination
because the DHHR never made reasonable efforts to reunify the family, the Court finds no merit
to this argument. While petitioner is correct that the circuit court rejected the DHHR’s allegations
of aggravated circumstances based upon A.D.’s severe injuries and did order the DHHR to
provide petitioner services, his allegation that the DHHR made no efforts to achieve reunification
is incorrect. In the adjudicatory order, the circuit court specifically stated that the DHHR “shall
provide services to the family to include psychological evaluations of the [parents].” It is
undisputed that petitioner received such services, which constitute reasonable efforts to achieve
reunification pursuant to West Virginia Code § 49-6-5(a), especially in light of the uncertainty
surrounding the child’s injuries.

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         The circuit court specifically delayed ruling on other services, such as supervised
visitation, pending completion of the psychological evaluations so that there would be a better
understanding of what services would be appropriate. However, after reviewing petitioner’s
psychological evaluation, the circuit court found that petitioner was “not motivated to address
[his] problems that led to the abuse and neglect of [his] children.” Therefore, there were no
additional efforts the DHHR could make to attempt reunification in light of petitioner’s failure to
acknowledge the underlying issues of abuse and neglect. For these reasons, the Court finds that
the DHHR made reasonable efforts to achieve reunification in this matter.

        Finally, petitioner argues that the circuit court erred in terminating his parental rights
because it failed to consider other dispositional alternatives and failed to follow applicable
procedural requirements for dispositional hearings. While petitioner alleges that the circuit court
“skipp[ed] the dispositional hearing altogether” and terminated his parental rights after a hearing
on his motion for a post-adjudicatory improvement period, the record does not support this
argument. It is true that at the dispositional hearing, the circuit court heard arguments on
petitioner’s motion, but the hearing was very clearly a dispositional hearing and petitioner was
afforded notice as required by Rule 31 of the West Virginia Rules of Procedure for Child Abuse
and Neglect Proceedings and the opportunity to be heard as required by that same rule and West
Virginia Code § 49-6-5(a). The adjudicatory order clearly stated that “[a] dispositional hearing
shall be held . . . on May 22, 2013,” and the record shows that this hearing was continued until
July 24, 2013. Finally, the transcript of the July 24, 2013, hearing shows that the circuit court
expressly began the hearing by stating that “we are here on a disposition.” For these reasons, the
Court finds no merit in petitioner’s argument that the appropriate procedural rules regarding
disposition were not followed.

         Further, the Court finds that the evidence upon which the circuit court based its denial of
petitioner’s motion for a post-adjudicatory improvement period also supports termination of
petitioner’s parental rights. As noted above, petitioner made no progress in attempting to remedy
the conditions of abuse and neglect in order to achieve reunification. Therefore, the circuit court
was correct to find that there was no reasonable likelihood that petitioner could substantially
correct the conditions of abuse or neglect in the near future in accordance with West Virginia
Code § 49-6-5(b)(3). The circuit court further found that termination of petitioner’s parental rights
was in the children’s best interest. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts
are directed to terminate parental rights upon such findings. While petitioner argues that the
circuit court failed to consider any less restrictive alternatives to termination of parental rights at
disposition, the Court finds no evidence of such a disregard for less restrictive alternatives in the
record. To the contrary, petitioner’s failure to acknowledge the conditions of abuse and neglect
left the circuit court no option other than to terminate petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
August 5, 2013, order is hereby affirmed.



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                                       Affirmed.

ISSUED: February 18, 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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