                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS

                                                                                    FILED
In re N.L.                                                                      January 14, 2019
                                                                                EDYTHE NASH GAISER, CLERK
No. 18-0745 (Monroe County 18-JA-3)                                             SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Father M.L., by counsel Martha J. Fleshman, appeals the Circuit Court of
Monroe County’s July 26, 2018, order terminating his parental and custodial rights to N.L.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Brandolyn
Felton-Ernest, filed a response in support of the circuit court’s order and a supplemental
appendix. The guardian ad litem (“guardian”), Amy L. Mann, filed a response on behalf of the
child in support of the circuit court’s order. On appeal, petitioner argues that the circuit court
erred in adjudicating him as an abusing parent, denying his motion for an improvement period,
and terminating his parental and custodial rights rather than imposing a less-restrictive
dispositional alternative.

        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 April of 2018, the DHHR filed a petition alleging that four-year-old N.L.’s biological
mother’s parental rights had been previously terminated, but petitioner continued to allow the
mother to have contact with the child. The DHHR alleged that the mother recently gave birth to a
child in Virginia and that child was exposed to drugs in utero. According to the DHHR, the
mother provided authorities in Virginia with petitioner’s address and phone number as her
contact information. Additionally, the DHHR alleged that the child was interviewed by a Child
Protective Service (“CPS”) worker and that she disclosed that she had seen her mother, but that
petitioner told her to lie about seeing the mother. The DHHR alleged that petitioner first denied

                                                            
              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).




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that the mother had contact with the child, but then later stated “you need to understand that
sometimes circumstances arise.” Petitioner waived his preliminary hearing.

        The circuit court held an adjudicatory hearing in June of 2018, during which a DHHR
worker from Virginia testified that, during her investigation into the issues of the mother’s abuse
of a different child in Virginia, the mother disclosed to the worker that petitioner continued to
allow her to see N.L. The worker testified that she called petitioner’s cell phone number, which
the mother had given as her contact information, and left a message with petitioner for the
mother. The worker further testified that the mother called her back from petitioner’s cell phone.
Additionally, the worker testified that she transported the mother to petitioner’s home on one
occasion. A West Virginia DHHR worker testified that petitioner’s previous abuse and neglect
petition was dismissed in March of 2018. During that case, the worker informed petitioner that
the mother could have no contact with the child after the termination of her parental rights.
Further, this worker testified that she interviewed the child, who disclosed that she continued to
see the mother, but that she was not supposed to tell anyone.

        Petitioner testified that the mother came to his home unannounced twice and that he did
not let her in the house either time. Petitioner admitted that the child saw her mother on both
occasions. Petitioner refuted the claim made by the Virginia DHHR worker and stated that the
mother did not call the worker from his cell phone. Petitioner explained that he passed the
worker’s message to the mother at some point. Petitioner also testified that he did not see any
danger in allowing the child to see her mother while he supervised any contact. However,
petitioner acknowledged that the circuit court ordered that the mother have no contact with the
child, and he said he would respect that order. Finally, the maternal grandmother testified that
she was present for two instances when the mother went to petitioner’s home to collect some
belongings. The grandmother confirmed that petitioner told the mother that she was not supposed
to be at the house and that the mother left afterwards.

        Ultimately, the circuit court found that petitioner continued to allow his child to have
contact with the mother whose rights had been previously terminated and who was an active
drug user. Further, the circuit court concluded that petitioner emotionally abused the child by
requiring that she keep the contact with the mother a secret. Accordingly, the circuit court
adjudicated petitioner as an abusing parent.

        In July of 2018, the circuit court held the final dispositional hearing and heard argument
regarding petitioner’s motion for a post-dispositional improvement period, which the circuit
court denied. Testimony was presented from two DHHR workers, petitioner, and the foster
father. The evidence presented detailed petitioner’s prior improvement period and the services
provided to him. The DHHR workers opined that petitioner would comply with services if
granted an improvement period, but that petitioner would likely again attempt to deceive the
DHHR regarding contact between the mother and the child. Additionally, the DHHR indicated
that further services would not correct the conditions that led to the filing of the petition.
Petitioner testified that the mother did not live in his home and that he never invited her to see
the child. Petitioner further testified that in the future he would obtain a domestic violence
protective order to keep the mother from coming to his home unannounced. Finally, the foster
father testified that he had seen the mother on the porch of petitioner’s home on two occasions.

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        Ultimately, the circuit court found that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected because petitioner continued to
allow the mother to have contact with the child despite knowing that the mother’s parental rights
were terminated and that she continued to abuse controlled substances. Further, the circuit court
found that petitioner coached the child to keep her contact with the mother a secret, which
demonstrated petitioner’s knowledge that the contact should not be taking place and his
willingness to thwart the efforts of the DHHR to protect the child from exposure to her drug-
addicted mother. Accordingly, the circuit court terminated petitioner’s parental and custodial
rights in its July 26, 2018, order. Petitioner now appeals that order.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). Upon our review, this Court
finds no error in the proceedings below.

        On appeal, petitioner first argues that the circuit court erred in adjudicating him as an
abusing parent. Petitioner asserts that the DHHR’s witnesses presented conflicting testimony and
that the manner in which the child was interviewed rendered the child’s statements incredible.
We disagree. 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).

                                                            
              2
          The mother’s parental rights were terminated during prior proceedings. According to the
parties, the permanency plan for the child is adoption in her current relative foster placement.



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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 a child

                      [w]hose physical or mental health is harmed or threatened by a present
              refusal, failure or inability of the child’s parent, guardian or custodian 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, guardian or custodian[.]

        Here, sufficient evidence was presented to adjudicate petitioner as an abusing parent.3
The evidence presented clearly showed that petitioner allowed the mother to continue to have
contact with the child and that the mother was an inappropriate person due to the previous
termination of her parental rights and her continued drug use. Testimony was presented that both
the child and the mother admitted to having continued contact despite the circuit court’s prior
order banning such contact. Additionally, two other witnesses stated that the mother was at
petitioner’s home on multiple instances. This continued contact was clearly a failure to provide
appropriate supervision on petitioner’s part. Further, and more troubling, the child stated that
petitioner directed her to lie about the contact with her mother. The circuit court correctly found
that this constituted emotional abuse to the child.

        Although petitioner argues that the testimony regarding the mother’s continued contact
was contradictory, and, therefore, incredible, this Court has 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 rely on the circuit court’s assessment of the DHHR employee’s credibility
concerning her discussions with the child. Further, petitioner argues that that the child’s
statements to the DHHR worker were incredible because the interview was not recorded and the
child was not subject to further forensic interviewing. However, these issues were not raised
below. “‘Our general rule is that nonjurisdictional questions . . . raised for the first time on
appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20,
524 S.E.2d 688, 704 n.20 (1999).” Noble v. W.Va. Dep’t of Motor Vehicles, 223 W.Va 818, 821,
679 S.E.2d 650, 653 (2009). Petitioner did not object to the interviewing DHHR worker’s
testimony regarding the child’s statements and was given an opportunity to cross-examine the
worker about the manner in which the interview was performed. Therefore, we find that the
circuit court correctly adjudicated petitioner as an abusing parent based on the evidence
presented.

       Second, petitioner argues that the circuit court erred in denying his motion for an
improvement period. Petitioner asserts that he expressed an understanding of the issues that led
to the filing of the petition and that the DHHR workers testified that he would “pass” an
                                                            
              3
        “‘Abusing parent’ means a parent, guardian or other custodian . . . whose conduct has
been adjudicated by the court to constitute child abuse or neglect as alleged in the petition
charging child abuse or neglect.” W.Va Code § 49-1-201. (Emphasis added).



                                                               4     
 
improvement period. However, upon our review of the record, we find petitioner’s argument
unpersuasive. West Virginia Code § 49-4-610(2) provides that a circuit court may grant a post-
adjudicatory improvement period when “[t]he respondent moves in writing for the improvement
period” and “demonstrates, by clear and convincing evidence, that the respondent is likely to
fully participate in the improvement period[.]” The decision to grant or deny an improvement
period rests in the sound discretion of the circuit court. See In re M.M., 236 W.Va. 108, 115, 778
S.E.2d 338, 345 (2015) (“West Virginia law allows the circuit court discretion in deciding
whether to grant a parent an improvement period.”); Syl. Pt. 6, in part, In re Katie S., 198 W.Va.
79, 479 S.E.2d 589 (1996) (“It is within the court’s discretion to grant an improvement period
within the applicable statutory requirements.”). Further, the circuit court has discretion to deny
an improvement period when no improvement is likely. In re Tonjia M., 212 W.Va. 443, 448,
573 S.E.2d 354, 359 (2002).

        The circuit court correctly denied petitioner’s motion for an improvement period because
it was unlikely that petitioner would improve. The evidence showed that petitioner was provided
multiple services throughout his previous abuse and neglect case, which was dismissed only one
month before these proceedings began. Additionally, petitioner acknowledged that he was aware
of the circuit court’s prohibition on contact between the child and her drug addicted mother.
Despite services and the DHHR’s insistence, the evidence showed that petitioner continued to
allow contact between the two and even directed the child to lie about that contact. Although a
DHHR worker testified that petitioner would “pass” the improvement period, the worker also
expressed concern that petitioner would again attempt to deceive the DHHR and continue to
allow contact. Petitioner also argues that the circuit court denied him an opportunity to fully
present his argument regarding his motion on an improvement period. However, it is clear from
our review that petitioner’s counsel provided a lengthy and detailed argument regarding the
motion. While we acknowledge that the circuit court abruptly ended the DHHR’s argument
opposing the motion and petitioner did not have an opportunity to rebut the DHHR’s argument,
we find that petitioner was granted a sufficient opportunity to advocate for his position.
Accordingly, we find no error in the circuit court’s denial of petitioner’s motion for an
improvement period.

        Finally, petitioner argues that the circuit court erred in terminating his parental and
custodial rights rather than imposing a less-restrictive dispositional alternative. Petitioner asserts
that there was a reasonable likelihood that the conditions of abuse and neglect could be
substantially corrected through an improvement period. We find no merit to petitioner’s
argument. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate
parental rights upon findings that there is “no reasonable likelihood that the conditions of neglect
or abuse can be substantially corrected in the near future” and that termination is necessary for
the child’s welfare. West Virginia Code § 49-4-604(c)(3) provides 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 “ha[s] 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[.]”

       The circuit court correctly terminated petitioner’s parental and custodial rights upon
findings that there was no reasonable likelihood that the conditions of abuse and neglect could be

                                                  5         
 
substantially corrected and that termination was necessary for the welfare of the child. Petitioner
willfully exposed the child to continued contact with the mother despite knowing that the contact
was prohibited. Further, petitioner failed to acknowledge his conduct by stating that he did not
see the danger in allowing contact between the two while he supervised. Moreover, petitioner
was already provided services by the DHHR in his previous case that addressed restricting
contact between the mother and child. Therefore, it is unlikely that additional services would be
effective at treating the conditions when petitioner willfully disregarded those instructions just
one month after those services concluded.

               “[C]ourts are not required to exhaust every speculative possibility of
       parental improvement . . . where it appears that the welfare of the child will be
       seriously threatened, and this is particularly applicable to children under the age
       of three years who are more susceptible to illness, need consistent close
       interaction with fully committed adults, and are likely to have their emotional and
       physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re
       R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4. The circuit court properly found that
there was no reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected based on petitioner’s prior services and his lack of meaningful change. In addition, it
was necessary for the child’s welfare to terminate petitioner’s parental and custodial rights in
order to ensure she would have no additional contact with her abusing mother. Accordingly, we
find no error in the circuit court’s termination of petitioner’s parental and custodial rights.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 26, 2018, order is hereby affirmed.

                                                                                        Affirmed.

ISSUED: January 14, 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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