                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: B.F. and M.K.                                                              FILED
                                                                                May 22, 2017
No. 16-0831 (Jackson County 15-JA-148 & 15-JA-149)                              RORY L. PERRY II, CLERK

                                                                              SUPREME COURT OF APPEALS

                                                                                  OF WEST VIRGINIA


                              MEMORANDUM DECISION
         Petitioner Father J.K., by counsel Ryanne A. Ball, appeals the Circuit Court of Jackson
County’s August 3, 2016, order terminating his parental rights to B.F. and M.K.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Melinda C. Dugas,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Erica
Brannon Gunn, 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 adjudicating him as an abusing
parent, denying his request for a post-adjudicatory improvement period, and terminating his
parental rights.

        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.

       Although the abuse of petitioner’s step-son, M.F., forms the basis of this petition, M.F. is
not the subject of petitioner’s appeal. In December of 2015, M.F., experienced a serious
behavioral issue at school, related to his autism.2 M.F.’s teacher called the home and petitioner
picked the child up from the school. When M.F. returned to school later that same week, he had
noticeable injuries on his face and forehead, including a black eye. Ultimately, in December of
2015, the DHHR filed an abuse and neglect petition against petitioner and the mother of M.K. as



       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
        Because petitioner is not the biological father of M.F., the circuit court made no ruling in
regard to the child in relation to this petitioner. Moreover, on appeal to this Court, petitioner
makes no argument in regard to M.F. Accordingly, M.F. is not the subject of petitioner’s appeal.


                                                 1


to B.F. and M.K.3 Specifically, the petition alleged that petitioner and the mother engaged in
domestic violence in the children’s presence and that petitioner and the mother physically and
emotionally abused the children. An amended abuse and neglect petition was filed in April of
2016, alleging that petitioner and the mother attempted to interfere with the children’s statements
to the DHHR.

         In January of 2016, the circuit court held a preliminary hearing wherein it heard the
testimony of several witnesses. A DHHR worker testified that she observed bruises on M.F. and
that M.F. reported to her that petitioner threw him on the ground, causing the bruises. She also
testified that M.F. hid under a chair and reported that the bruises were the reason he was absent
from school. The worker further testified that when she confronted M.F. and M.K.’s mother
about the allegations of abuse, the mother told her that M.F. was “not able to make sentences or
be understood.” B.F.’s non-offending mother testified that she filed for a domestic violence
protective order against petitioner in January of 2016, after he threatened to kill her. She also
testified that, in May of 2015, B.F. returned from a visit with petitioner and had marks on his
face, eyes, and chest, as well as bruises on his side and bottom. Respondent called petitioner to
testify but the circuit court continued the matter to allow petitioner to further confer with his
attorney regarding the implications of testifying at the preliminary hearing.

        Also in January of 2016, the circuit court held a second preliminary hearing wherein it
heard the testimony of another witness. M.F.’s teacher testified that she observed bruises on
M.F.’s forehead and a black eye when he returned to school. She also testified that M.F. told her
that petitioner pushed him down onto the floor. She further testified that M.F. did not have
bruises on his forehead or a black eye when he left school on December 15, 2015. Following the
testimony of the witnesses, the circuit court found that imminent danger existed at the time of the
petition’s filing and sustained the removal of B.F. and M.K. from the home. The circuit court
ordered that petitioner, the mother of M.F. and M.K., and the children undergo psychological
evaluations.

         In May of 2016, the circuit court held an adjudicatory hearing wherein it heard testimony
from the psychologist who evaluated petitioner and the mother of M.K. The psychologist
testified that petitioner and the mother denied abusing the children. He also testified that
petitioner had an unspecified personality disorder with antisocial and narcissistic features. He
further testified that M.F. stated that his mother told him he was not supposed to acknowledge
the abuse and he would be “back in the home soon.” The psychologist opined that the children
would be in danger if left in petitioner’s care and testified that he could not formulate treatment
recommendations because petitioner refused to acknowledge the abuse. At the conclusion of the
hearing, the circuit court adjudicated petitioner as an abusing parent to B.F. and M.K.4 Following



       3
         According to the record on appeal, B.F. resided with his non-offending mother, J.S., and
petitioner exercised weekend visitation with B.F. Additionally, M.K. resided primarily in
petitioner’s home.
       4
        According to the record on appeal, the mother of M.K. was also adjudicated as an
abusing parent as to M.K.
                                                2


the adjudicatory hearing, petitioner and the mother filed written motions requesting post­
adjudicatory improvement periods.

        In July of 2016, the circuit court held a dispositional hearing. Petitioner failed to attend
the hearing but was represented by his counsel. A DHHR worker testified that the DHHR was
seeking termination of petitioner’s parental rights because he had not accepted responsibility for
his actions that led to the petition’s filing. Petitioner presented no evidence in support of his
previously filed motion for a post-adjudicatory improvement period. At the conclusion of the
hearing, the circuit court found that petitioner “abandoned the case” because he failed to attend a
scheduled multidisciplinary team (“MDT”) meeting, failed to participate in the development of a
family case plan, and failed to attend the dispositional hearing or present evidence in support of
his motion. The circuit court also found that there was no reasonable likelihood petitioner could
substantially correct the conditions of abuse and neglect, terminated his parental rights to the
children, and denied his motion for a post-adjudicatory improvement period.5 It is from that
August 3, 2016, order that petitioner appeals.

       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, the Court finds
no error in the circuit court’s adjudication of petitioner as an abusing parent, denial of his motion
for a post-adjudicatory improvement period, or termination of his parental rights.



       5
         The parental rights of both of M.K.’s parents were terminated below. According to the
guardian, the child was placed in a foster home and the permanency plan is adoption therein.
Additionally, following the termination of petitioner’s parental rights to B.F.’s father, B.F. was
placed with his non-offending mother with a permanency plan to remain in her home. Finally,
the record indicates that E.K., the mother of M.K., has an additional child, M.F., who was also
the subject of the proceedings below. The parental rights of both of M.F.’s biological parents
were terminated below. According to the guardian in E.K.’s related appeal, M.F. was placed in a
foster home and the permanency plan is adoption into that home. However, because petitioner is
not the biological father of M.F., his permanency is not affected by this appeal.
                                                 3


        On appeal, petitioner argues that the circuit court’s findings of abuse were not supported
by clear and convincing evidence. Petitioner asserts that the evidence presented at the
adjudicatory hearing was insufficient to support the findings of abuse. West Virginia Code § 49­
1-201 defines an “abused child” as “a child whose health or welfare is being harmed or
threatened by [a] parent, guardian or custodian who knowingly or intentionally inflicts, attempts
to inflict or knowingly allows another person to inflict, physical injury or mental or emotional
injury, upon the child or another child in the home.” Further, this Court has described the “clear
and convincing” standard as one in which

       the evidence does not have to satisfy the stringent standard of beyond a
       reasonable doubt; the evidence must establish abuse by clear and convincing
       evidence. This Court has explained that “‘clear and convincing’ is the measure or
       degree of proof that will produce in the mind of the factfinder a firm belief or
       conviction as to the allegations sought to be established.” Brown v. Gobble, 196
       W.Va. 559, 564, 474 S.E.2d 489, 494 (1996)

In re F.S. and Z.S., 233 W.Va. 538, 546, 759 S.E.2d 769, 777 (2014).

        In this case, as to the May of 2016 adjudication, the DHHR alleged that petitioner
physically and emotionally abused the children. At the first preliminary hearing, multiple
witnesses testified to observing injuries on M.F. and B.F after they were in petitioner’s care, that
M.F. reported that petitioner threw him on the ground and caused his injuries, and that the
injuries were the reason he was absent from school. M.F.’s teacher testified that petitioner “hung
up on her” when she telephoned petitioner in December of 2015, and was angry when he picked
M.F. up from school. At the adjudicatory hearing, the psychologist testified that petitioner had an
unspecified personality disorder with antisocial and narcissistic features. He also testified that he
could not formulate treatment recommendations because petitioner refused to acknowledge the
abuse.

        Given the clear and convincing evidence of physical abuse, we find no error in the circuit
court’s order regarding adjudication. The circuit court found the testimony of the DHHR worker,
M.F.’s teacher, B.K.’s non-offending mother, and the psychologist to be “unbiased and
credible.” Petitioner simply denied the abuse and refused to participate in remedying the abuse.
While petitioner claimed that the children’s injuries came from “roughhousing” and self-
injurious behavior, he provided no evidentiary support for such a claim beyond his self-serving
testimony. Moreover, while no specific allegations of abuse were made as to B.F. and M.K.,
M.K. lived primarily in petitioner’s home and B.K. resided in the home when petitioner
exercised weekend visitation. We have previously articulated that the abuse of one child in the
home equates to the abuse of all the children in the home. As we stated in Syllabus Point 2 of In
re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995):

               [w]here there is clear and convincing evidence that a child has suffered
       physical and/or sexual abuse while in the custody of his or her parent(s), guardian,
       or custodian, another child residing in the home when the abuse took place who is
       not a direct victim of the physical and/or sexual abuse but is at risk of being
       abused is an abused child under [West Virginia Code § 49-l-201(a) (2015).]

                                                 4


        Further, our case law provides that “in the context of abuse and neglect proceedings, the
circuit court is the entity charged with weighing the credibility of witnesses and rendering
findings of fact.” In re Emily, 208 W.Va. 325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1,
in part, In re Travis W., 206 W.Va. 478, 525 S.E.2d 669 (1999)); see also Michael D.C. v.
Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997) (stating 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.”). The circuit court acted within its discretion by discounting petitioner’s
testimony and crediting the testimony of the DHHR worker, M.F.’s teacher, and the
psychologist. Therefore, we find adequate evidentiary support for the finding that petitioner
abused the children. We further find no evidentiary support for petitioner’s claim that the
children caused their own injuries. Based on our review of the record on appeal, the circuit court
committed no error in finding that the circumstances of this case meet the statutory definition of
an “abused child.”

          Petitioner next argues that the circuit court erred in denying his motion for a post­
adjudicatory improvement period. In support of his argument, and without citation to the record,
petitioner asserts that he “timely filed a written motion requesting a post-adjudicatory
improvement period” and presented evidence that he was “willing and wanting to fully
participate” in an improvement period. Upon our review, however, the Court finds that petitioner
failed to satisfy the applicable burden to obtain an improvement period. We have often noted that
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) (stating that “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)
(holding that “[i]t is within the court’s discretion to grant an improvement period within the
applicable statutory requirements”).We have also held that a parent’s “entitlement to an
improvement period is conditioned upon the ability of the [parent] to demonstrate ‘by clear and
convincing evidence, that the respondent is likely to fully participate in the improvement period .
. . .’”In re: Charity H., 215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004).

        Here, it is clear from the record on appeal that petitioner failed to demonstrate his ability
to fully participate in an improvement period. The circuit court was presented with evidence that
petitioner failed to appear for scheduled MDT meetings and the dispositional hearing. Further,
petitioner failed to accept responsibility for his actions and their impact on the children as he
denied the allegations of abuse.

       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 Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting Charity H., 215 W.Va.
at 217, 599 S.E.2d at 640). As such, it is clear that petitioner failed to establish that he was likely



                                                  5


to fully participate in a post-adjudicatory improvement period and we find no error in the circuit
court denying petitioner’s motion.

        Finally, petitioner argues that the circuit court erred in terminating his parental rights.
Specifically, he contends that the circuit court erred in terminating his parental rights without
granting his request for an improvement period. The Court, however, does not agree. Petitioner’s
argument ignores the facts of the case presented below. Specifically, the circuit court found that
petitioner failed to remedy the conditions of abuse and neglect in the home. These findings were
based on substantial evidence, including evidence that petitioner failed to fully participate in the
proceedings or accept responsibility for his actions. Further, we have previously held that “a
parent charged with abuse and/or neglect is not unconditionally entitled to an improvement
period.” Charity H., 215 W.Va. at 216, 599 S.E.2d at 639 (2004).

       Pursuant to West Virginia Code § 49-4-604(c)(3), 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 .
       ...

       Based upon the substantial evidence outlined above, the circuit court found there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect because, according to the circuit court, he abandoned the proceedings below and made
himself “unavailable to participate in the creation of a family case plan.” The circuit court further
found that termination of petitioner’s parental rights was necessary for the children’s welfare.
Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate a
parent’s parental rights upon such findings. Further, we have held as follows:

               “Termination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49-6-5 [now 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 W. Va.Code [§] 49-6-5(b) [now 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).

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Accordingly, we find no error
below.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 3, 2016, order is hereby affirmed.



                                                 6


                                          Affirmed.

ISSUED: May 22, 2017


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




                                    7


