                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS

                                                                                     FILED
                                                                                     June 28, 2013
In Re: C.W., D.W., S.W., X.W. & I.W.                                            RORY L. PERRY II, CLERK

                                                                              SUPREME COURT OF APPEALS

                                                                                  OF WEST VIRGINIA

No. 13-0172 (Wood County 09-JA-50 through 09-JA-53 &10-JA-71)


                                 MEMORANDUM DECISION

       Petitioner Mother’s appeal, by counsel Robin S. Bonovitch, arises from the Circuit Court
of Wood County, wherein the circuit court terminated only her custodial rights to the children by
order entered January 22, 2013. Petitioner also appeals the February 25, 2011 order granting the
West Virginia Department of Health and Human Resources’ (“DHHR”) motion to reopen the
abuse and neglect proceedings. The DHHR, by counsel Lee A. Niezgoda, has filed its response in
support of the circuit court’s orders. The guardian ad litem, James M. Bradley Jr., has also filed a
response in support of the circuit court’s orders.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

         In July of 2009, the DHHR filed a petition alleging physical abuse to C.W. by
Respondent Father and also alleging abuse against petitioner for failure to protect the children.
Petitioner and Respondent Father, her husband, successfully completed an improvement period
following their disclosures that Respondent Father had unintentionally caused significant physical
injuries to their oldest child, C.W., then age six. While the parents were able to achieve
reunification with the children and the abuse and neglect matter was dismissed, related criminal
charges were brought against both parents for the abuse to C.W. In September of 2010, the
DHHR filed a second petition against the parents, alleging that petitioner intentionally burned
C.W. with a fork she had allowed him to hold over an open flame and alleging that Respondent
Father failed to protect the children. Following an adjudicatory hearing on this second petition,
the circuit court found that the DHHR had failed to establish that the children were abused and/or
neglected by clear and convincing evidence. The matter was dismissed by order entered on
December 7, 2010, though ongoing services were ordered for the family.

        On December 23, 2010, a sentencing order was entered in Respondent Father’s related
criminal proceedings. Respondent Father was sentenced to a term of incarceration of one to five
years following his entry of a guilty plea to one count of child abuse resulting in injury. The
circuit court also sentenced Respondent Father to a twenty-year term of supervised release

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following his incarceration and, as a term of the supervised release, ordered that Respondent
Father have no contact with the children. The circuit court also noted that, contrary to his
admissions in the 2009 abuse and neglect proceedings, Respondent Father admitted under oath
that he intentionally struck C.W., causing him injury. The circuit court presiding over the criminal
matter directed the DHHR to seek to reopen the 2009 abuse and neglect proceedings because
Respondent Father had perpetrated a fraud upon the court by completing his improvement period
under the guise that his abuse of C.W. was unintentional. In January of 2011, the DHHR filed a
motion to reopen the previous abuse and neglect proceedings based upon Respondent Father’s
admission that he intentionally harmed C.W. The circuit court granted the motion, and a later-
born child, I.W., was included in the proceedings.

        In February of 2011, following the entry of guilty pleas, petitioner was sentenced on three
misdemeanor counts of contributing to the neglect of a child. The criminal court sentenced her to
one year in jail for each count, but suspended two of the sentences in lieu of a total period of
probation of four years. Thereafter, petitioner entered into a stipulated adjudication as to her abuse
and neglect of all five children based upon her failure to protect them from Respondent Father,
her failure to acknowledge that the actions occurred, and her failure to acknowledge her own role
in the abuse. Petitioner was granted an improvement period on February 7, 2012. The circuit court
began a dispositional hearing in September of 2012, eventually concluding the same on October
16, 2012. Because the children were already residing with family members, the circuit court chose
to terminate only petitioner’s custodial rights to the children.1

       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).




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         According to the parties, the circuit court took no action in regard to Respondent Father’s
parental rights, in light of the terms of his supervised release prohibiting him from having contact
or residing with minor children, including his own.
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        To begin, the Court finds no error in regard to petitioner’s allegation that the circuit court
erred in granting the DHHR’s motion to reopen the 2009 abuse and neglect proceedings against
the parents. Simply put, the circuit court was not precluded from revisiting the substantiated
conditions of abuse and neglect that were present in 2009 simply because the matter was no
longer pending. While petitioner argues that reopening the case was improper because the parents
completed the terms and conditions of their prior improvement period such that they achieved
reunification with the children, it is clear that appropriate terms and conditions for such
improvement period could not have been established due to dishonesty regarding the specific
abuse present. Although the DHHR improperly titled the motion,2 modification of a prior
disposition is allowed under West Virginia Code § 49-6-6(a) upon motion of the DHHR, and the
circuit court was not precluded from revisiting the matter simply because of a prior disposition.

        In fact, we have previously held that “[t]he plain language of W. Va.Code § 49–6–6 . . .
permits a child, a child’s parent or custodian, or the West Virginia Department of Health and
Human Resources to move for a modification of the child’s disposition where a change of
circumstances warrants such a modification.” Syl. Pt. 1, In re Cesar L., 221 W.Va. 249, 654
S.E.2d 373 (2007). The Court finds that Respondent Father’s admission to intentionally abusing
the child created a change of circumstances warranting modification, especially in light of the fact
that petitioner and Respondent Father completed their prior improvement periods under false
pretenses, thereby failing to address the actual underlying conditions of abuse. As such, the Court
finds no merit in petitioner’s argument that the proceedings should not have been reopened as to
her because the evidence shows that Respondent Father’s fraud materially affected the abuse and
neglect proceedings as to both parents. As such, the circuit court’s February 25, 2011, order
granting the DHHR’s motion to reopen the abuse and neglect proceedings is affirmed.

        As to the termination of petitioner’s custodial rights, the Court finds no error in this
regard. While petitioner argues that the circuit court was precluded from finding that there was no
reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in
the near future because it previously found that she had corrected these conditions sufficient to
achieve reunification, the Court again notes that Respondent Father’s dishonesty precluded the
circuit court from making accurate findings in the earlier proceedings. Based on the evidence,
including Respondent Father’s admission that he intentionally abused C.W., the Court finds that
the original conditions of abuse and neglect present in 2009 were misrepresented to the circuit
court. As such, any findings as to those conditions having been corrected prior to Respondent
Father’s admission of intentional abuse have no preclusive effect on the circuit court reexamining
the conditions of abuse and neglect with full knowledge of the parents’ actual role in perpetrating
the abuse. This is especially true in light of the fact that modification of the prior disposition was
warranted, as addressed above.

       The circuit court found that there was no reasonable likelihood that the conditions of
abuse or neglect could be substantially corrected in the near future because petitioner failed to
comply with the specific terms of her improvement period. The circuit court cited to an individual

       2
           The DHHR titled its motion below as follows: “Motion to Re-open Case.”
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term that required petitioner to make full disclosures concerning the abuse during therapy sessions
and a psychological evaluation. Specifically, petitioner was required to fully disclose “the abuses
suffered by the children, her role in causing the abuses, her failure to protect the children and her
complicity in carrying out the cover-up perpetrated on the court by the father.” This term of her
improvement period was implemented in order to assure that petitioner and the Multi-disciplinary
Team (“MDT”) could “develop a plan that will assure that [the abuses] do not happen in the
future.”

        However, the circuit court found that petitioner never completed this term, as evidenced
by her failure to fully disclose or discuss Respondent Father’s abuse, her refusal to acknowledge
her failure to protect the children, and her lack of an admission to carrying out a cover-up of the
abuse in the prior abuse and neglect proceedings. While petitioner stated that she was unaware of
the prior abuse because she did not see it occur, the circuit court noted that petitioner should have
knowledge of the events because C.W. described the abuse to a Child Protective Services (“CPS”)
worker and because Respondent Father admitted to the abuse in his criminal proceeding. In short,
the circuit court found that accepting the fact that Respondent Father intentionally abused C.W.
“was, and continues to be, essential to [petitioner’s] successful completion of her improvement
period . . . .” However, the circuit court found that petitioner “has totally failed to accept the fact
that her husband, the Respondent Father, abused their eldest child.”

        West Virginia Code § 49-6-5(b)(3) states that a circumstance under which there is no
reasonable likelihood that the conditions of abuse and neglect can be substantially corrected in the
near future includes a situation where

       [t]he abusing parent . . . [has] not responded to or followed through with a
       reasonable family case plan or other rehabilitative efforts of social, medical,
       mental health or other rehabilitative agencies designed to reduce or prevent the
       abuse or neglect of the child, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child.

Based upon the foregoing, it is clear that petitioner failed to follow through with the terms of her
improvement period designed to prevent further abuse. Additionally, we have 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 foregoing, it is clear that the circuit court did not err in finding that there was no
reasonable likelihood that the conditions of abuse and neglect could be substantially corrected
because of petitioner’s inability to comply with the terms of her improvement period.

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        Because the circuit court properly found that petitioner could not substantially correct the
conditions of abuse and neglect in the near future and also found that continuation in the home
was contrary to the children’s welfare and best interests, it did not err in terminating petitioner’s
custodial rights. In fact, West Virginia Code § 49-6-5(a)(6) requires circuit courts to terminate
parental rights upon such findings. Further, the Court finds no merit in petitioner’s argument that
the circuit court lacked sufficient evidence to support this disposition. Petitioner’s argument on
this point is premised upon her testimony regarding her decision to continue her relationship with
Respondent Father. This includes petitioner’s assurances that she would protect the children from
Respondent Father and that she would not be cohabitating with him.

        This argument lacks merit because the evidence and findings outlined above were
sufficient to terminate petitioner’s custodial rights absent any of the additional findings regarding
petitioner’s decision to continue her relationship with her children’s abuser. Further, the Court
notes that petitioner even admitted that some contact between Respondent Father and the children
would be unavoidable, but that she would ensure it was minimal. According to her own
testimony, petitioner expressed an intention to facilitate Respondent Father in violating the terms
of his supervised release by exposing the children to him, regardless of how minimal she
contemplated the contact to be. As such, the Court finds no error in the circuit court relying on
petitioner’s continued relationship with Respondent Father in reaching termination.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 25, 2011 order granting the DHHR’s motion to reopen the abuse and neglect
proceedings and its January 22, 2013 order terminating petitioner’s custodial rights are hereby
affirmed.

                                                                                          Affirmed.

ISSUED: June 28, 2013

CONCURRED IN BY:

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




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