                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS
                                                                                    FILED
In re P.B., N.B., and A.B.                                                      October 19, 2018
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
No. 18-0364 (Hampshire County 17-JA-30, 17-JA-31, and 17-JA-32)                     OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
        Petitioner Mother S.W., by counsel Charlie B. Johnson, appeals the Circuit Court of
Hampshire County’s March 8, 2018, order terminating her parental rights to P.B., N.B., and
A.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”), Joyce E. Stewart, filed a response on behalf of the children also in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying her post-
termination visitation.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.

        In May of 2017, the DHHR filed a child abuse and neglect petition against the parents.
Specifically, the DHHR alleged that the parents engaged in a domestic violence incident in
which the father punched petitioner in the face in the presence of the children. Upon arriving at
the home, law enforcement officers found petitioner passed out due to her intoxication, visibly
injured. Petitioner’s home was observed to be in poor condition with no furniture or running
water and the children were dirty, the youngest child having a severe diaper rash. Child
Protective Services (“CPS”) removed the children from the home and discovered that the two
older children, then ages seven and five, were unable to communicate. It was later determined
that P.B. was deaf and had no knowledge of sign language, and N.B. was autistic and nonverbal.
The DHHR also alleged that petitioner made no attempt to contact CPS regarding the status of
her children after they were removed from the home.
                                                            
              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 does not raise a specific assignment of error with regard to termination of her
parental rights.
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       Thereafter, petitioner evaded service of the petition and failed to attend the preliminary
hearing held later in May of 2017. The circuit court was advised that petitioner moved to
Maryland and had not communicated with the DHHR.

        The DHHR filed an amended petition in September of 2017, alleging medical neglect
based upon the parents’ failure to provide medical and dental care to the children. The DHHR
also alleged that petitioner abandoned the children by failing to initiate any contact with the
DHHR since their removal. A hearing was held later in September in which petitioner appeared
and was served with the petition. She waived her right to a preliminary hearing and tested
positive for marijuana during a recess in the hearing.

        The adjudicatory hearing was held over several days from August of 2017 through
November of 2017. After hearing testimony, the circuit court found that the parents neglected
P.B.’s education and thwarted the efforts of his educators to assist with his care and education,
including failing to enroll the child in the West Virginia School for the Deaf for a period of
approximately one month. The circuit court found that the parents exhibited a history of
domestic violence in the presence of the children, which petitioner attempted to minimize.
Further, the circuit court determined that despite testifying that she participated in drug
treatment, petitioner remained addicted to drugs and/or alcohol; was arrested while publicly
intoxicated; and tested positive for alcohol, methadone, and Tetrahydrocannabinol (“THC”)
multiple times throughout the course of the proceedings. The circuit court also found that the
children were medically neglected. Petitioner denied any wrongdoing, but, ultimately, the circuit
court adjudicated her as an abusing parent. Petitioner requested a post-adjudicatory improvement
period, but the same was denied upon findings that she was not likely to fully participate with
services.

         The circuit court held a dispositional hearing in February of 2018. Petitioner admitted
that she would test positive for marijuana if tested, but generally minimized her drug abuse and
denied engaging in domestic violence with the father. Petitioner presented the testimony of three
witnesses who testified that she had a bond with her children. At the close of evidence, the
parents requested post-dispositional improvement periods, which were denied. The circuit court
found that petitioner accepted little responsibility for her conduct, minimized her involvement in
the abuse, placed blame for her actions on other persons, failed to show insight into the
conditions of abuse and/or neglect, and failed to resolve any of the conditions of abuse and/or
neglect. In fact, petitioner took no steps to seek treatment for her mental health or substance
abuse problems and tested positive for illicit substances and/or alcohol on every occasion she
was tested throughout the proceedings. Moreover, petitioner failed to seek employment or stable
housing and was living in a camper with the father as of the date of the hearing. As such, the
circuit court determined that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and/or neglect in the near future and that the best interests of the children
necessitated termination of parental rights. Further, the court denied petitioner post-termination
visitation, finding that the children were in need of permanency and security and that continued




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contact would be detrimental to their wellbeing. It is from the March 8, 2018, order terminating
her parental rights and denying her post-termination visitation that petitioner appeals.3

              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 argues that the circuit court erred in denying her post-termination
visitation with the children. Petitioner relies upon In re Katie S., 198 W.Va. 79, 479 S.E.2d 589
(1996) in support of her arguments. In that case, the mother requested post-termination visitation
and the circuit court summarily denied her request without a hearing, stating “[t]ermination
means termination.” According to petitioner, the instant case is comparable to Katie S. because
she provided evidence that a strong emotional bond existed between her and the children and that
visitation would be in their best interest. Petitioner avers that no evidence to the contrary was
submitted and, therefore, the circuit court erred in denying her motion. We disagree.

                       “When parental rights are terminated due to neglect or abuse, the circuit
              court may nevertheless in appropriate cases consider whether continued visitation
              or other contact with the abusing parent is in the best interest of the child. Among
              other things, the circuit court should consider whether a close emotional bond has
              been established between parent and child and the child’s wishes, if he or she is of
              appropriate maturity to make such request. The evidence must indicate that such
              visitation or continued contact would not be detrimental to the child’s well being
              and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
              446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002).


                                                            
              3
         Both parents’ parental rights were terminated below. The children were placed in a
foster home with a permanency plan of adoption therein.
                                                               3

 
        Contrary to petitioner’s assertion, we find that the instant case is distinguishable from
Katie S. In Katie S., this Court reversed and remanded, in part, because the circuit court failed to
meaningfully address post-termination visitation. Here, petitioner presented the testimony of
three witnesses who testified that petitioner had a bond with the children. However, evidence
was also presented that petitioner left the State following the removal of her children from her
care, failed to contact the DHHR, failed to participate in the proceedings for nearly four months,
tested positive for controlled substances or alcohol every time she was tested throughout the
proceedings, and demonstrated no acceptance of or responsibility for her actions. Moreover,
petitioner did not request visitation with her children until the dispositional hearing and
testimony established that in her absence the children made significant progress in both their
behavior and communication.

         Having reviewed the evidence, the circuit court determined that post-termination
visitation was not in the children’s best interest and that it “simply ha[d] no credible evidence
before it in this proceeding to suggest that further contact of these children with [petitioner]
would be anything but detrimental to their well-being.” 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). While petitioner’s argument relies heavily on the testimony of several witnesses, we
note that the circuit court, as the trier of fact, assessed the credibility of all witnesses. Here, the
circuit court was provided with ample testimony from several witnesses and ultimately found
that petitioner failed to demonstrate that post-termination visitation was in the best interests of
the children. We find no error with the circuit court’s determination and assessment of the
evidence and find that petitioner is entitled to no relief in this regard.

       For the foregoing reasons, the circuit court’s March 8, 2018, order is hereby affirmed.


                                                                                            Affirmed.

ISSUED: October 19, 2018


CONCURRED IN BY:

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

Justice Allen H. Loughry II suspended and therefore not participating




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