                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

In re S.F.
                                                                                     FILED
No. 18-1143 (Berkeley County 17-JA-88)                                            June 12, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


                               MEMORANDUM DECISION



        Petitioner Father E.F., by counsel Nicholas Forrest Colvin, appeals the Circuit Court of
Berkeley County’s December 20, 2018, order terminating his parental rights to S.F.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee A. Niezgoda,
filed a response in support of the circuit court’s order. The guardian ad litem, Elizabeth Layne
Diehl, filed a response on behalf of the child in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court abused its discretion in terminating his parental rights and
denying his motion for post-termination visitation with the child.

       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 July of 2017, the DHHR filed a child abuse and neglect petition against petitioner and
the mother of S.F. alleging that another child living in the home died as a result of Benadryl
intoxication. The DHHR alleged that petitioner was working out of state when the child died, but
was aware of other safety issues in the home, including chemicals and liquor bottles in reach of
the children and a pool without proper safety measures. The DHHR also alleged that petitioner
was required to register as a sex offender due to his criminal conviction of a sex crime related to
fourteen-year-old girl. The DHHR alleged that petitioner neglected S.F. by a “refusal, failure, and
inability to provide [her] with necessary food, clothing, shelter, supervision, and medical care.”
Petitioner waived his preliminary hearing.


       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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        Petitioner filed an answer to the petition and admitted that he failed to provide the child
with necessary shelter and supervision. The circuit court adjudicated petitioner as an abusing
parent. Petitioner requested a post-adjudicatory improvement period, which the circuit court
granted in October of 2017. The circuit court also granted petitioner supervised visitation with the
child.

        In November of 2017, a multidisciplinary team (“MDT”) meeting was held following a
report that S.F. was inappropriately touching a similarly-aged child. According to the child’s
therapist, S.F. was found underneath a table, touching the genitalia of a peer who had exposed
herself to S.F. Additionally, petitioner’s visitation supervisor reported concerns that petitioner was
overly involved with S.F.’s cleanliness after she used the bathroom. The circuit court temporarily
suspended supervised visitations and ordered that S.F. undergo a forensic interview. However,
S.F. was unresponsive during the interview. The DHHR implemented therapeutic visitation to
address parenting skills during visitation.2

        Petitioner sought and participated in a psychosexual risk assessment for the purpose of
determining his risk for sexual reoffending and to receive recommendations for treatment in May
of 2018. In the evaluation, petitioner gave his narrative of his sexual offense, in which he described
an encounter with the fourteen-year-old step-daughter of his “best friend for 35 years.” Petitioner
admitted that he was “a very intricate part of the family” and that he “considered himself like a big
brother to her.” Prior to the incident that led to petitioner’s sexual offense conviction, petitioner
admitted that he “touched [the victim’s] breasts and [he] put [his] fingers down her britches” and
asserted that “[s]he did not object.” Petitioner further asserted that the victim pursued him, but that
he “turned her down on numerous occasions.” Finally, petitioner described the incident related to
his conviction, including details that the victim came to his home, removed her trousers, and that
he performed oral sex on her, after turning down her request to have sex. The incident ended after
the victim’s stepfather knocked on petitioner’s door. Further, petitioner admitted he did not
complete his sexual offender treatment, but, after three years of participation in treatment, his
probation officer did not require him to complete further treatment. In the evaluation, petitioner
expressed that his strategy to prevent a subsequent offense was to “never allow[] other girls or
women in the house without his supervisor, [the mother] present and not allow[] any kind of
inappropriate clothing in his home.”

        The evaluator concluded that petitioner fit the profile of a “situational or regressed sex
offender,” who tend to have a lower risk to reoffend. The evaluator positively noted that petitioner
had not reoffended for the past ten years. However, the evaluator also expressed concern that
petitioner met the diagnostic criteria for cannabis use disorder and that cannabis use increased the
likelihood for re-offense. Further, the evaluation recommended a restriction of petitioner’s
pornography access because he admitted to viewing pornography prior to his sexual offense.
Ultimately, the evaluation predicted petitioner’s likelihood of reoffending to be “[b]elow
[a]verage” and likely lower because he had not reoffended since his conviction.



       2
         In February of 2018, the mother and another adult respondent relinquished their parental
rights to S.F. and other children, who are not petitioner’s biological children, after the DHHR filed
an amended petition alleging that the cause of death of S.F.’s half-sibling was homicide.
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        The circuit court held hearings in September of 2018 and November of 2018 regarding
disposition. During those hearings, the incident report for petitioner’s sexual offense, including the
victim’s statement, was introduced into evidence. According to the victim’s statement, petitioner
brought her to his home and then locked the door. The victim stated that petitioner removed her
shorts once, and she pulled them back up. Petitioner removed her shorts again, and the victim
stated that she “kept saying no and then he licked me.” The victim stated that she did not remember
him doing anything like this before, except that he asked her and a friend to show him their breasts
on one occasion and they declined. Petitioner’s psychosexual evaluator testified that she was not
provided the victim’s statement prior to her evaluation, but that her opinion of petitioner’s risk for
sexual re-offense was unaffected by the differences in the narratives. The evaluator agreed that
petitioner’s narrative of his actions, which included multiple sexual incidents with the victim prior
to his conviction, constituted a “grooming” of the victim “and finally got her to a point where he
could engage in oral sex with her.” The circuit court found that petitioner’s safety plan, which
involved supervision by the mother, was no longer viable due to the mother’s relinquishment of
parental rights.

        The circuit court also heard evidence regarding an injury that S.F. suffered while in
petitioner’s care around August of 2018. At that time, petitioner was exercising overnight visitation
with S.F. when her elbow was injured. According to the staff members of her daycare, petitioner
called the daycare following the incident and explained that S.F. had injured her elbow, but that
she was just “milking” the injury and was fine. The staff member explained to petitioner that she
would follow up with a call to him later, but petitioner did not answer her call and did not respond
until the end of the day. S.F.’s therapist testified that S.F. believed petitioner was angry when he
caused the injury because she was jumping on the bed. S.F. told her therapist that she did not want
to see petitioner any more after the injury. Petitioner testified that the injury was accidental, caused
when the child slid off the bed while he tried to ready her for sleep. Petitioner admitted that he did
not answer the call from the daycare. The circuit court found that petitioner caused the injury to
S.F. resulting in an injury to her elbow and failed to take reasonable measures to seek treatment.
Further, the circuit court found that petitioner failed to protect S.F. by not timely responding to the
daycare’s call regarding her need for treatment.

         Three witnesses testified regarding S.F.’s bond with petitioner. S.F.’s therapist testified
that she did not believe that the child was bonded to petitioner, but that she could see a bond
between the child and her foster parents. Petitioner’s therapist and the visitation supervisor both
testified that S.F. was bonded with petitioner, but the circuit court found that their testimony was
“colored by sympathy” for petitioner. The visitation supervisor testified that petitioner continued
to blame the DHHR for “the continued separation between him and his daughter” and blamed the
mother for the safety concerns in the home at the time of the removal. According to the visitation
supervisor, petitioner accepted responsibility for his prior sexual offense only. Petitioner’s
therapist also testified that he would need six months to one year of additional therapy and agreed
that immediate reunification without additional support would not be in the child’s best interests.
Additionally, both service providers testified that they did not address petitioner’s prior sexual
offense due to his purported low risk to reoffend.

       The circuit court held a final dispositional hearing in December of 2018. Petitioner did not
appear, but was represented by counsel. The circuit court determined that S.F. would be unsafe in

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petitioner’s home because she was too young to be able to distinguish between normal parenting
behavior and grooming behavior. The circuit court concluded that the child’s interests would not
be promoted by preserving the family. Further, the circuit court found that petitioner’s testimony
lacked credibility and that he failed to accept responsibility for his actions. Based on those findings,
the circuit court concluded that there was no reasonable likelihood that the conditions of abuse and
neglect could be substantially corrected in the near future and terminated petitioner’s parental
rights. The circuit court’s decision was memorialized by its December 20, 2018, order. Petitioner
now appeals that order.3

       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 asserts that the circuit court abused its discretion in terminating his
parental rights because its decision was based on conditions for which he had not been previously
adjudicated. Specifically, petitioner argues that the child’s elbow injury, his status as a sexual
offender, and the sexual conduct between S.F. and another child were all factors that the circuit
court considered and none of those issues were subject to adjudication. Petitioner believes that,
because of the lack of adjudicatory proceedings, the circuit court could not have considered these
events for the purpose of disposition. However, we disagree with petitioner and find that these
issues were properly considered in relation to disposition.

        First, the circuit court properly considered the injury to the child’s elbow as it related to
petitioner’s admission that he failed to provide adequate supervision to the child. Although it was
disputed whether the injury was accidental or intentional, it was clear that petitioner’s actions
caused the injury as a result of being unable to safely parent the child. This conduct did not require
a new or amended petition because it was an extension of petitioner’s original admissions of
inadequate supervision. Therefore, S.F.’s injury was a symptom of petitioner’s lack of progress
toward adequate parenting. Petitioner’s reaction to the injury and his failure to seek medical
attention or respond to S.F.’s daycare further emphasize his inability to safely parent the child.


       3
          The mother voluntarily relinquished her parental rights as noted above. According to the
parties, the permanency plan for the child is adoption in her current foster placement.
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This Court has held “[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. The controlling standard that governs any dispositional decision remains
the best interests of the child.” Syl. Pt. 4, In re B.H., 233 W. Va. 57, 754 S.E.2d 743 (2014).
Clearly, petitioner’s actions were not aligned with S.F.’s best interests, and the circuit court
properly recognized and considered that fact at disposition.

        Likewise, the circuit court properly considered petitioner’s sex offender status and his
dishonesty in that respect at disposition. Importantly, petitioner sought the assistance of the
psychosexual evaluator in this case and was the only party that provided information upon which
her evaluation was based. However, petitioner withheld the official incident report that
contradicted his version of the offense. Moreover, petitioner asserted that he had never read that
report and entered a guilty plea to his conviction without reviewing the evidence. The circuit court
considered this testimony incredible and “[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). More concerning, the psychosexual
evaluator and the circuit court agreed that petitioner’s behavior toward his prior victim was
consistent with a grooming pattern designed to lead up to greater sexual acts. The circuit court
correctly considered S.F.’s inability to recognize these actions based on her age. Accordingly, we
find that the circuit court appropriately considered petitioner’s status as a sex offender in
accordance with the child’s best interests.

        Ultimately, the circuit court correctly terminated petitioner’s parental rights upon findings
that there was no reasonable likelihood that the conditions of neglect and abuse could be
substantially corrected in the near future and that termination was necessary for the child’s welfare.
West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental rights
upon these findings. Further, West Virginia Code § 49-4-604(c)(3) provides that situations in
which there is “no reasonable likelihood that conditions of neglect or abuse can be substantially
corrected” include one in which the 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.

Petitioner participated in therapy and visitation throughout his post-adjudicatory improvement
period. However, despite the services provided, S.F.’s injury and petitioner’s reaction revealed
that he was not prepared to safely parent the child. Additionally, the visitation supervisor disclosed
that, after participating in services, petitioner continued to blame the DHHR and the mother for
S.F’s removal and accepted little responsibility himself. This Court has held

       [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



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       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)). Moreover, petitioner’s service providers both
agreed that petitioner needed further therapy and services, possibly up to an additional year.
Therefore, based on petitioner’s failure to acknowledge his responsibility and his need for
additional services, the circuit court’s findings that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected and that termination was necessary
for the welfare of the child were not clearly erroneous and are supported by the record.

        Petitioner also argues that the circuit court incorrectly construed West Virginia Code § 49-
4-604(b)(7)(D) to grant additional discretion regarding reunification when a parent is required to
register as a sex offender.4 Yet, petitioner fails to realize that the circuit court has discretion to
determine whether “the conditions of the improvement period have been satisfied and whether
sufficient improvement has been made in the context of all the circumstances of the case to justify
the return of the child.” Syl. Pt. 2, in part, In re C.M., 235 W. Va. 16, 770 S.E.2d 516
(2015)(citation omitted.). Therefore, regardless of the circuit court’s reliance on West Virginia
Code § 49-4-604(b)(7)(D), the circuit court properly exercised discretion in determining the
ultimate disposition for S.F.




       4
        Although we support the circuit court’s termination of petitioner’s parental rights for the
reasons described above, we agree with petitioner that the circuit court incorrectly interpreted West
Virginia Code § 49-4-604(b)(7)(D) as granting it discretion to “deny reunification with a parent
when that parent is required to register as a sex offender.” Rather, this section provides, in relevant
part:

       For purposes of the court’s consideration of the disposition custody of a child
       pursuant to this subsection, the department is not required to make reasonable
       efforts to preserve the family if the court determines: . . . A parent has been required
       by state or federal law to register with a sex offender registry, and the court has
       determined in consideration of the nature and circumstances surrounding the prior
       charges against that parent, that the child’s interests would not be promoted by a
       preservation of the family.

This section refers to the requirement under West Virginia Code § 49-4-604(b)(6)(C)(iv), and
others, that the circuit court consider “[w]hether or not the department made reasonable efforts to
preserve and reunify the family.” West Virginia Code § 49-4-604(b)(7)(D), therefore, removes the
requirement that the DHHR make such efforts prior to the circuit court’s consideration of
dispositional alternatives when a parent “has been required . . . to register with a sex offender
registry, and the court has determined in consideration of the nature and circumstances
surrounding the prior charges against that parent, that the child’s interests would not be promoted
by a preservation of the family.” (Emphasis added). The section does not grant discretion to deny
reunification, as the circuit court contended below.
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       Finally, petitioner argues that the circuit court abused its discretion in denying his motion
for post-termination visitation with the child. In regard to post-termination visitation, this Court
has held

                “[w]hen 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). Petitioner contends that both
service providers testified that a bond existed between petitioner and S.F. However, as mentioned
above, the circuit court found that these witnesses’ testimony was “colored by sympathy” for
petitioner. Further, the circuit court found that S.F.’s therapist’s testimony and opinions were more
closely aligned with the child’s best interests. S.F.’s therapist testified that she did not observe a
bond between S.F. and petitioner, but did see that S.F. expressed a bond towards her biological
half-siblings and foster parents. As cited above, “[t]he trier of fact is uniquely situated to make
such [credibility] determinations and this Court is not in a position to, and will not, second guess
such determinations.” Michael D.C., 201 W. Va. at 388, 497 S.E.2d at 538. The expert that worked
closest with S.F. determined that she did not share a bond with petitioner. Accordingly, we find
that the circuit court did not abuse its discretion in denying petitioner’s motion for post-termination
visitation.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 20, 2018, order is hereby affirmed.

                                                                                            Affirmed.

ISSUED: June 12, 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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