                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

In re B.B.                                                                          FILED
                                                                                 April 19, 2019
No. 18-0994 (Cabell County 17-JA-117)                                          EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA




                              MEMORANDUM DECISION


        Petitioner Father J.B., by counsel Richard L. Vital, appeals the Circuit Court of Cabell
County’s October 9, 2018, order terminating his parental rights to B.B.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”), Jacquelyn
Biddle, filed a response on behalf of the child, also in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in terminating his parental rights.2

        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.

        Prior to the initiation of the instant proceedings, in 2016, the DHHR filed a child abuse
and neglect petition against petitioner regarding two older children. 3 Petitioner was adjudicated
as an abusing parent and granted a post-adjudicatory improvement period, which required
petitioner to submit to drug screens, attend parenting and adult life skills classes, complete a
Batterer’s Intervention and Prevention Program (“BIPP”), and maintain stable housing and

       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).
       2
         Petitioner sets forth seven assignments of error, each of which relate to the termination
of his parental rights. They will be addressed as one herein.
       3
         The petition was also filed against the mother of B.B., the only child at issue on appeal.
At the time of the prior petition’s filing, petitioner and the mother were in a relationship and each
had two biological children from prior relationships, but B.B. had not yet been born.
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employment. However, petitioner failed to comply with the terms and conditions of his
improvement period, was expelled from the BIPP, and was unable to continue visiting with his
children because of his failure to complete that program. Ultimately, in April of 2017, the circuit
court permitted petitioner to voluntarily relinquish his parental rights rather than proceeding to
involuntarily termination.

        Approximately one month later, the mother gave birth to petitioner’s third child, B.B., the
only child at issue on appeal. Later in May of 2017, the DHHR filed the instant child abuse and
neglect petition, in which it alleged that petitioner was previously expelled from the BIPP in a
prior case and failed to complete his improvement period, ultimately resulting in the voluntary
relinquishment of his parental rights. The DHHR concluded that petitioner’s circumstances had
not changed since the filing of the prior petition in 2016. The DHHR further alleged that
petitioner and the mother were advised on multiple occasions that they were not to be in a
relationship due to their respective Child Protective Services (“CPS”) cases, but that they
continued their relationship despite this directive. The petition also indicated that, upon taking
custody of the child, petitioner “became belligerent and yelling, threatening to break people’s
windows out with a baseball bat.”

        In October of 2017, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the allegations contained in the petition. Specifically, petitioner testified that he
“had an anger management issue” at the time the petition was filed and had previously
relinquished his parental rights to two older children. The circuit court adjudicated petitioner as a
neglecting parent and granted him a post-adjudicatory improvement period, which required that
he submit to drug screens, attend parenting and adult life skills classes, and complete the BIPP,
among other things.

        Petitioner was granted an extension of his improvement period in April of 2018. The
circuit court held a dispositional hearing in September of 2018. Testimony established that
petitioner missed several drug screens and attended only forty percent of his supervised visits
with the child. At the visits he did attend, the child had to be reintroduced to petitioner due to the
substantial gaps in time and was anxious in petitioner’s presence. Petitioner also failed to bring
any basic care items to the visits and was only attentive to the child “at times.” Further, petitioner
failed to complete the BIPP and parenting classes. In a report, the parenting provider stated that
petitioner continued to lack accountability and blamed others.

         Petitioner testified that he missed drug screens due to his work schedule. Regarding
visits, petitioner testified that he missed several due to his sickness, the child’s sickness, and the
child’s unavailability. Petitioner stated that he did not complete the BIPP because the program
refused to readmit him due to his prior expulsion, despite the circuit court’s order that the
program grant him re-entry. Petitioner further denied that he was belligerent, yelling, or
threatening anyone at the time the child was removed from his home, as set forth in the petition.

       After hearing evidence, the circuit court found that there was “no reason to believe the
conditions of neglect that continue to this day will substantially improve in the near future.”
Further, the circuit court found that the best interests of the child required termination of



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petitioner’s parental rights and that there was no less restrictive alternative. It is from the October
9, 2018, dispositional order terminating his parental rights that petitioner appeals.4

        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 raises several assignments of error with regard to the termination of
his parental rights. Petitioner argues that there was insufficient evidence to terminate his parental
rights and specifically takes issue with the circuit court’s finding that there was no reasonable
likelihood that he could correct the conditions of neglect in the near future. According to
petitioner, he complied with his improvement period in that he maintained suitable housing and
employment. He asserts that he never tested positive for drugs and notes that the DHHR
conceded that drugs were not an issue in his case. As such, petitioner avers that his missed drug
screens should not have been part of the basis for terminating his parental rights. Moreover,
petitioner argues that the evidence does not establish that he never completed his parenting and
adult life skills classes. He further argues that he gave plausible reasons for why he was not able
to complete the BIPP or visit the child consistently. Petitioner also takes issue with the circuit
court’s finding that termination was in the best interests of the child. He argues that no evidence
was presented that his home would be “detrimental or harmful to the child” and that no evidence
refuted the fact that he loves the child. As such, petitioner states that because “there is no
evidence of physical, mental or emotional abuse to the child,” the circuit court erred in
terminating his parental rights.5 Lastly, petitioner argues that the circuit court erred in failing to



        Both parents’ parental rights were terminated below. B.B. was placed in a foster home
        4

with a permanency plan of adoption therein.
        5
         To the extent that petitioner is arguing that he did not abuse or neglect the child, we note
that petitioner stipulated to the allegations contained in the petition and was adjudicated as a
neglecting parent based upon the same. As such, we find no error in this regard.
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employ a less restrictive disposition. Upon our review, we find no merit in any of petitioner’s
arguments.

        Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate
parental rights upon findings that there is “no reasonable likelihood that the conditions of abuse
and neglect can be substantially corrected in the near future” and when necessary for the
children’s welfare. West Virginia Code § 49-4-604(c)(3) 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

       [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.

        There is sufficient evidence to establish that there was no reasonable likelihood that
petitioner could substantially correct the conditions of abuse and neglect in the near future given
that he failed to follow through with services designed to reduce or prevent the abuse and neglect
of the child. Specifically, petitioner failed to submit to random drug screens, attend adult life
skills and parenting classes, and participate in supervised visitation with the child. The record
demonstrates that petitioner missed ten drug screens from October of 2017 through March of
2018, failed to submit to any drug screens after June of 2018, and missed at least forty percent of
his supervised visits. While petitioner argues that his missed drug screens should not be held
against him since the DHHR conceded he did not have a drug issue, we note that petitioner was
aware of and agreed to the terms and conditions of his improvement period, which clearly stated
that he was to submit to random drug screens. Further, petitioner’s argument that there was no
evidence presented that he had not completed his parenting and adult life skills classes simply
because the DHHR worker testified that “to [her] knowledge” he had not completed them is
disingenuous in light of the fact that he fails to cite to the record to show where he established
that he completed the classes and merely focuses on the phrasing of the worker’s testimony.

        Regarding his participation in services, petitioner takes issue with the circuit court’s
findings about his failure to comply when he provided testimony that he did, in fact, comply. For
example, petitioner testified that he missed visits due to his illnesses and the child’s illnesses,
and was unable to complete parenting and adult life skills classes because the provider stopped
responding to his calls. However, petitioner fails to cite to the record demonstrating that he
submitted evidence to corroborate his testimony in any manner. As such, his proffered excuses
for why he did not complete certain aspects of his improvement period are nothing more than
self-serving assertions which were weighed by the circuit court. We have previously held 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.” Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497
S.E.2d 531, 538 (1997). Accordingly, we find no error in the circuit court’s assessment of the
witnesses’ credibility in making findings and rulings below.



                                                4
         Assuming for the sake of argument that petitioner is correct that he substantially
complied with the above-mentioned terms and conditions of his improvement period, the fact
remains that petitioner was adjudicated based upon his anger issues and failed to complete the
BIPP. Here, the petition established that, in his prior case, petitioner failed to complete the BIPP
and was expelled from the same. At the time the petition was filed, the DHHR alleged that
petitioner had not addressed the issues since the filing of the prior petition and exhibited
threatening behavior upon the removal of the child from his home. Petitioner stipulated that he
had anger management issues and agreed to submit to a BIPP.6 However, he failed to do so.
While petitioner argues that the program would not readmit him, he provides no evidence
supporting his claim. Indeed, the record establishes that the circuit court’s order was twice faxed
to the program in an effort to remedy the issue, yet petitioner continued to claim that the program
would not readmit him. Moreover, petitioner fails to explain why he was unable to remedy the
problem in the year after he was granted his post-adjudicatory improvement period. West
Virginia Code § 49-4-610(4)(A) specifies that “the respondent shall be responsible for the
initiation and the completion of all terms of the improvement period.” Despite having ample
time, petitioner fails to provide credible answers as to why he was unable to complete the BIPP.
Therefore, we find no error in the circuit court’s determination that there was “no reason to
believe the conditions of neglect that continue to this day will substantially improve in the near
future” and that termination was in the child’s best interests.

         To the extent that petitioner argues the circuit court should have employed a less
restrictive alternative, we note that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [West Virginia
       Code § 49-4-604] may be employed without the use of intervening less restrictive
       alternatives when it is found that there is no reasonable likelihood under [West
       Virginia Code § 49-4-604(c)] that conditions of neglect or abuse can be
       substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266
       S.E.2d 114 (1980).


       6
         Despite stipulating that he had anger issues, at the dispositional hearing petitioner
testified that he never became belligerent, yelled, or threatened anyone at the time of the child’s
removal. Indeed, the record is replete with examples of petitioner denying culpability and
blaming others for his situation. We have previously 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.

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)). As such, petitioner’s failure to acknowledge the
conditions of abuse and neglect supports the circuit court’s finding that there was no reasonable
likelihood that he could correct the conditions of neglect in the near future.

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Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Because petitioner failed to
participate in services or meaningfully address the issues giving rise to the petition, we find that
there was no reasonable likelihood that he could correct the conditions of abuse and neglect in
the near future and that termination was necessary for the child’s welfare.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 9, 2018, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: April 19, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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