                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS
                                                                                FILED
In re J.C.                                                                 November 19, 2018
                                                                             EDYTHE NASH GAISER, CLERK
No. 18-0559 (Roane County 17-JA-83)                                          SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Father J.R., by counsel Marc A. Moore, appeals the Circuit Court of Roane
County’s May 18, 2018, order terminating his parental rights to J.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”), Ryan M.
Ruth, filed a response on behalf of the child in support of the circuit court’s order. Petitioner
filed a reply. On appeal, petitioner argues that the circuit court erred in adjudicating him as an
abusing parent, denying his motion for a post-adjudicatory improvement period, and finding
there was no reasonable likelihood that he could substantially correct the conditions of neglect in
the near future.

        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 2017, a petition was filed to initiate abuse and neglect proceedings
involving J.C.’s sibling and mother. An amended petition was filed to add additional infant and
adult respondents, including petitioner and the child at issue in this appeal. There were no
allegations of abuse and neglect against petitioner until the third amended petition was filed on
November 14, 2017. According to the DHHR, it was reported that petitioner repeatedly sent the
then-five-year-old child to school in ill-fitting, urine soaked clothing. It was also reported that
petitioner failed to provide proper supervision for the child. Petitioner contested the preliminary
hearing held on November 16, 2017. However, the circuit court found that the child was in
imminent danger at the time of his removal from petitioner’s custody.


       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).



                                                1
 
        On December 18, 2017, the circuit court held an adjudicatory hearing during which the
DHHR presented evidence that a Child Protective Services (“CPS”) worker and a service
provider witnessed the child at school wearing ill-fitting clothing and with extremely poor
hygiene. According to the DHHR, the child’s school reported ongoing problems with the child’s
appearance and hygiene. The CPS worker testified that, after noticing the overwhelming smell of
urine, she observed the child urinate on himself, his clothing, and the floor. She described the
child as “very dirty” with dirty ears and fingernails and no sign that he had recently bathed. The
DHHR also presented evidence that petitioner frequently left the child alone and unsupervised.
Accordingly, petitioner was adjudicated as an abusing parent. A dispositional hearing was
scheduled for February of 2018, but continued multiple times for an evaluation of petitioner and
his medical records, due to his assertion that he was mentally ill.

        In March of 2018, the circuit court suspended petitioner’s visitation with the child
because he threatened the visitation supervisor. In April of 2018, petitioner moved for a post-
adjudicatory improvement period. On May 14, 2018, the circuit court held a dispositional
hearing. At the beginning of the hearing, petitioner moved for a continuance in order to
participate in therapy to address his mental health issues. The circuit court denied the
continuance. According to the circuit court’s dispositional order, the DHHR presented evidence
of petitioner’s psychological evaluation. The evaluation reported that while petitioner expressed
affection for his son, he refused to acknowledge his parental deficits and use of poor judgment.
The examiner opined that petitioner would need psychotherapy, counseling, and anger
management, but his prognosis for parental improvement was found to be “extremely guarded to
poor.” The DHHR also presented evidence that during a visit, in front of the child, petitioner
screamed at and repeatedly threatened to hit the visitation supervisor when the supervisor
requested proof that petitioner completed the requisite drug screening. Petitioner was also
ordered to cease communication with the DHHR offices in both Roane and Jackson Counties
after repeated threatening telephone conversations. However, in his testimony, petitioner
minimized his actions toward the visitation supervisor and the DHHR, claiming he was trying to
protect the child. Counsel for petitioner informed the circuit court that petitioner suffered from
bipolar disorder. Prior to the dispositional hearing, petitioner started participating in counseling
and was prescribed Zoloft.

        According to the circuit court’s dispositional order, petitioner “personally questions
whether he has any mental illness or defect affecting his ability to properly parent” the child. The
circuit court found that petitioner failed to acknowledge the conditions of abuse and neglect and
blamed others for his problems. Further, according to the circuit court’s order, petitioner’s
attitude and threatening behaviors were a danger to the child and service providers. The circuit
court found there was no reasonable likelihood that petitioner could substantially correct the
conditions of neglect in the near future and that termination of his parental rights was in the
child’s best interests. Ultimately, the circuit court terminated petitioner’s parental rights and




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denied his motion for a post-adjudicatory improvement period in its May 18, 2018, dispositional
order. It is from this order that petitioner appeals.2

        The Court has previously established the following standard of review in cases such as
this:

                “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).

        On appeal, petitioner first argues that the circuit court erred in finding clear and
convincing proof of abuse and neglect. Petitioner further argues that the circuit court erred in
adjudicating him as an abusing parent because no allegation regarding his mental health
condition was included in the petition. In support, he asserts that if an allegation regarding his
mental health condition was included in the petition, he “would have been able to more
effectively consider what admissions could or should have been made” at the adjudicatory
hearing. We do not find this argument persuasive.

        We have held that

                “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). Further,
pursuant to West Virginia Code § 49-1-201, a neglected child is one


        2
       The child’s mother voluntarily relinquished her parental rights to the child in August of
2018. According to respondents, the permanency plan for the child is adoption by his maternal
aunt.


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       [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
       food, clothing, shelter, supervision, medical care or education, when that refusal,
       failure or inability is not due primarily to a lack of financial means on the part of
       the parent. . . .

        The circuit court had substantial evidence to adjudicate petitioner based upon his neglect
of the child. A CPS worker observed the child and testified at the adjudicatory hearing that the
child went to school in clothing that was dirty and ill-fitting. She also testified that he appeared
not to have recently bathed. She witnessed the child urinate on himself and on the floor. Further,
the evidence showed that petitioner left the five-year-old child unsupervised on multiple
occasions. To the extent petitioner argues that the DHHR failed to include an allegation
regarding petitioner’s mental health condition in the petition, the DHHR had no reason to allege
any mental health issues because petitioner failed to assert any mental health condition until the
hearing that was originally scheduled for the disposition of the matter. No evidence presented
during the preliminary or adjudicatory hearings supported a finding that petitioner’s mental
illness contributed to the neglect of the child. Moreover, based upon the overwhelming evidence
of the neglect of the child, we find no error in the circuit court’s adjudication of petitioner as an
abusing parent.

        Petitioner next argues that the circuit court erred in denying his motion for a post-
adjudicatory improvement period. In support, petitioner asserts that the DHHR did not make a
thorough effort to determine whether petitioner could adequately care for the child with intensive
long-term assistance.3 We disagree. Pursuant to West Virginia Code § 49-4-610(2), the circuit
court may grant a parent a post-adjudicatory improvement period if the parent “moves in writing
for the improvement period” and “demonstrates, by clear and convincing evidence, that the [the
parent] is likely to fully participate in the improvement period[.]” Additionally, we have stated
that “West Virginia law allows the circuit court discretion in deciding whether to grant a parent
an improvement period.” In re M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015).


       3
           Petitioner relies on a case in which this Court held   
        
               “[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). However, petitioner fails to
acknowledge that no such allegations were made in the instant matter. Therefore, In re Billy Joe
M. does not apply to the instant matter.  


                                                     4
 
        Again, petitioner did not assert any mental health issues until several months into the
proceedings. Thereafter, the DHHR properly sought to determine the effects of his mental health
issues by providing petitioner with a psychological evaluation. The psychological evaluation
revealed that petitioner’s prognosis for parental improvement, even with psychotherapy,
counseling, and anger management services, was “extremely guarded to poor.” The evaluation
also reported that petitioner was unwilling to acknowledge his own parental deficits and use of
poor judgment. We have 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)). Throughout the proceedings, petitioner failed to
take responsibility for his actions or acknowledge the issues of neglect. At the dispositional
hearing, petitioner questioned whether his mental health issues affected his ability to properly
parent the child. Further, petitioner did not demonstrate that he would substantially comply with
a post-adjudicatory improvement period because he failed to cooperate with the DHHR and
service providers. Petitioner repeatedly called and threatened the DHHR and threatened to hit a
visitation supervisor when the supervisor asked for proof that petitioner took a drug screen prior
to visitation with the child. At the dispositional hearing, petitioner attempted to minimize his
hostile behaviors. Based on this evidence, a post-adjudicatory improvement period would have
been futile and the circuit court did not abuse its discretion in denying petitioner the same.

        Finally, we find no error in the circuit court’s termination of petitioner’s parental rights. 
Petitioner argues that the circuit court erroneously found no reasonable likelihood that he could
substantially correct the conditions of neglect in the near future.  Petitioner asserts that with
counseling and medication, he has exhibited signs of success.4 We do not find this argument
persuasive. West Virginia Code § 49-4-604(c) clearly indicates that a situation in which there is
no reasonable likelihood the conditions of abuse and neglect can be substantially corrected
includes one in which the abusing parent “demonstrated an inadequate capacity to solve the
problems of abuse or neglect on their own or with help.” Pursuant to West Virginia Code § 49-4-
604(b)(6), circuit courts are directed to terminate parental rights upon finding that there is no
reasonable likelihood the conditions of neglect can be substantially corrected in the near future
and when necessary for the child’s welfare. 

        While petitioner argues that no assessment regarding his parenting capabilities was made,
petitioner fails to acknowledge the psychological reports. As discussed above, the psychological
assessment revealed that petitioner needed extensive counseling and services, and that his


       4
        Any progress made by petitioner following disposition cannot be considered on appeal
because there is no evidence in the record to support it.


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prognosis for parental improvement was “extremely guarded to poor.” The assessment also
revealed that petitioner was unwilling to acknowledge his own parental deficits, which was
apparent throughout the proceedings. On appeal, petitioner makes no argument that returning the
child to his care would be in the child’s best interests. Due to the neglect suffered by the child
and the hostile actions by petitioner during the proceedings, the termination of petitioner’s
parental rights was necessary for the child’s welfare. To offer petitioner additional time or
services would only delay permanency for the child. Additionally, because petitioner refused to
acknowledge the issues of neglect in the instant proceedings, it is clear that there was no
reasonable likelihood that he could correct those issues. Therefore, we find no error in the circuit
court’s termination of petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 18, 2018, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: November 19, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment

 




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