                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


                                                                                     FILED
In re: X.B. and E.B.
                                                                                  June 19, 2017
No. 17-0146 (Ohio County 16-CJA-7 & 16-CJA-8)                                      RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA


                                MEMORANDUM DECISION
        Petitioner Father E.B., by counsel Richard W. Hollandsworth, appeals the Circuit Court
of Ohio County’s November 16, 2016, order terminating his parental rights to X.B. and E.B.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed responses in support of the circuit court’s order. The guardian ad litem
(“guardian”), Joseph J. Moses, filed a response on behalf of the children also in support of the
circuit court’s order. On appeal, petitioner asserts that the circuit court erred in (1) relying on his
criminal history and his arrest and conviction for domestic battery during these proceedings as a
basis for the termination of his parental rights; and (2) failing to continue the dispositional
hearing until after he pled guilty and was sentenced for domestic battery so that he could
“openly” testify as to “the alleged domestic violence” in this case.

        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 January of 2016, the DHHR filed an abuse and neglect petition against petitioner
alleging that he and E.B.-1’s mother, K.F., engaged in domestic violence in the presence of the
children.2 Specifically, the DHHR alleged that petitioner struck K.F. in the face, leaving a bruise;
that he “threw a beer” causing it to spill on the children; that he previously choked K.F. to the
point that she lost consciousness; that he previously “slamm[ed] on the brakes [of a car] causing
her to strike her head”; and that he has a history of criminal violence that includes criminal
charges for domestic battery and fleeing a police officer and a felony conviction for assault.



       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
           The petition named several children and adult respondents not at issue in this appeal.
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        In March of 2016, petitioner stipulated that he was the biological father of the children;
that he committed child abuse and neglect by engaging in domestic violence in the children’s
presence; and that he had a violent criminal history “that includes a conviction and incarceration
for a felony charge of unlawful assault . . . [and] a prior arrest and charge for domestic battery . .
. (which was dismissed as part of a plea deal).” The circuit court accepted the stipulation and
adjudicated petitioner as an abusing parent.

        Thereafter, petitioner moved for and was granted a post-adjudicatory improvement
period. The focus of petitioner’s improvement period was to improve his problems with anger
and violence. His abuse of alcohol and other substances was also of concern. Petitioner agreed to
submit to random drug and alcohol screens; attend and complete a batterer’s intervention
program; attend and complete a psychological evaluation and individualized therapy; and
participate in parenting and adult life skills classes. Within days of the beginning of his
improvement period in March of 2016, petitioner began attending the batterer’s intervention
program.

        In April of 2016, petitioner was arrested on charges of battery, malicious assault, and
domestic battery against two different women. Due to the pending charges, petitioner was
removed from the batterer’s intervention program, as the program did not permit those with
active criminal charges to attend.

        In November of 2016, the circuit court held a dispositional hearing. At that hearing, the
DHHR presented evidence that petitioner failed to attend and complete the batterer’s intervention
program and individualized therapy and that he continued to engage in acts of violence with
others, resulting in his arrest for battery. Petitioner stated that he refused to testify under his Fifth
Amendment constitutional right against self-incrimination. It was noted that petitioner was
scheduled to have a plea hearing on his pending domestic battery charge immediately following
the dispositional hearing.

        Petitioner argued that the circuit court should impose a less-restrictive disposition than
termination. The DHHR and guardian both recommended termination. At the conclusion of the
dispositional hearing, the circuit court took the matter under advisement but instructed counsel to
inform the court of the result of petitioner’s plea hearing. It was later reported that petitioner pled
guilty to one count of domestic battery and was sentenced to one year in jail.

        By order entered on November 16, 2016, the circuit court terminated petitioner’s parental
rights to the children. In its order, the circuit court found that petitioner’s silence was affirmative
evidence of his culpability. The circuit court noted that petitioner had a history of criminal
violence beginning in 2007 that continued until the dispositional hearing, at which time criminal
charges were pending against him. Petitioner ultimately pled guilty to domestic battery. The
circuit court further noted that petitioner failed to comply with services such as the batterer’s
intervention program (due to the arrest during his improvement period) and individualized
therapy.3 This appeal followed.

        3
        Petitioner’s parental rights were terminated below. The children are permanently placed
with their respective mothers, who retain their parental rights.
                                                   2

       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).

        On appeal, petitioner argues that the circuit court erred in terminating his parental rights
to the children based on his criminal history, his arrest, and his conviction for domestic battery
during these proceedings. At the outset, we note that petitioner stipulated to his history of
criminal violence at the time of his adjudication. We explained that a party may not invite an
error and later employ that error as a means to set aside its consequences at a later date. See State
v. Crabtree, 198 W.Va. 620, 627 482 S.E.2d 605, 612 (1996) (explaining that “‘[i]nvited error’ is
a cardinal rule of appellate review applied to a wide range of conduct. It is a branch of the
doctrine of waiver which prevents a party from inducing an inappropriate or erroneous response
and then later seeking to profit from that error”). Because petitioner, through his stipulation to a
history of criminal violence, invited the circuit court to consider the same, we find that petitioner
may not now employ that consideration as a means to set aside the circuit court’s rulings.

        Moreover, we have held that circuit courts in abuse and neglect proceedings may
consider a respondent’s criminal conduct when “relevant to the issues of abuse and neglect upon
which the petition was based.” In re: A.S.-1, No. 16-0549, 2016 WL 6679015, at *4 (W.Va. Nov.
14, 2016) (memorandum decision). It is clear that petitioner’s repeated instances of criminal
violence beginning in 2007 and continuing to the date of the dispositional hearing (at which time
he pled guilty to the charge of domestic battery) were clearly relevant to the domestic violence at
issue in the instant proceedings.

        Further, we disagree with petitioner’s argument that his termination was in error because
he complied with “everything else” in his improvement period apart from his criminal conduct.
First, petitioner’s argument ignores our holding that “[i]n making the final disposition in a child
abuse and neglect proceeding, the level of a parent’s compliance with the terms and conditions of
an improvement period is just one factor to be considered.” Syl. Pt. 4, in part, In re B.H., 233
W.Va. 57, 754 S.E.2d 743 (2014). Second, petitioner undisputedly failed to complete the
batterer’s intervention program and individualized therapy, which were both terms of his

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improvement period.4 Therefore, we find no reversible error in the circuit court’s order as alleged
in petitioner’s first assignment of error.

         Petitioner’s second ground for appeal is that the circuit court erred in denying him a
continuance so that he could complete his criminal plea hearing, which he argues would have
permitted him to openly testify about the circumstances of his case. Rule 5 of the West Virginia
Rules of Procedure for Child Abuse and Neglect Proceedings states that “[u]nder no
circumstances shall a civil child abuse and neglect [proceeding] be delayed pending the
initiation, investigation, prosecution, or resolution of any other proceeding, including, but not
limited to, criminal proceedings.” While petitioner emphasizes that the delay would only have
been for a few hours or a few days, the issue here is not about timing. Rather, the issue is
whether the circuit court’s refusal to acquiesce to a delay in abuse and neglect proceedings
designed to await the resolution of a criminal prosecution was in error. We find that it was not.
To the contrary, we find that petitioner was not entitled to a continuance of his abuse and neglect
proceeding for the purpose of awaiting the conclusion of his criminal prosecution.

       Petitioner chose not to openly testify in the abuse and neglect proceeding in light of his
criminal proceeding. We have held that

               “‘[b]ecause the purpose of an abuse and neglect proceeding is remedial,
       where the parent or guardian fails to respond to probative evidence offered against
       him/her during the course of an abuse and neglect proceeding, a lower court may
       properly consider that individual's silence as affirmative evidence of that
       individual’s culpability.’ Syl. Pt. 2, West Virginia Dept. of Health and Human
       Resources ex rel. Wright v. Doris S., 197 W.Va. 489, 475 S.E.2d 865 (1996).”
       Syl. Pt. 2, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002).

Syl. Pt. 2, In re K.P., 235 W.Va. 221, 772 S.E.2d 914 (2015). Therefore, petitioner’s silence
could be used as affirmative evidence against him. Under the circumstances of this case, we find
no merit to petitioner’s second assignment of error.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 16, 2016, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: June 19, 2017



       4
         Petitioner appears to allege that the DHHR failed to make reasonable efforts to provide
him with individualized therapy during his improvement period. Because petitioner did not
allege this issue as a specific assignment of error or fully develop the same, we need not address
the matter in this memorandum decision. However, we note that petitioner admits the DHHR
worker “gave him the phone number” for the health care provider who would provide his
therapy.
                                                4

CONCURRED IN BY:

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




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