                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                   FILED
In re R.A.
                                                                             September 13, 2019
                                                                                EDYTHE NASH GAISER, CLERK
No. 19-0354 (Randolph County 2018-JA-154)                                       SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION



         Petitioner Mother S.A., by counsel J. Brent Easton, appeals the Circuit Court of Randolph
County’s March 8, 2019, order terminating her parental rights to R.A.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, Heather M. Weese, 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 terminating her parental rights instead of granting her a less-
restrictive disposition.

        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 December of 2018, the DHHR filed an abuse and neglect petition against the parents
due, in part, to a prior involuntary termination of the parents’ parental rights to older children. 2
According to the DHHR, the prior involuntary termination of parental rights was based on the


       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 appealed the prior involuntary termination of her parental rights to the older
children. This Court affirmed the termination. See In re M.A., No. 17-0394, 2017 WL 4773057
(W. Va. Oct. 23, 2017)(memorandum decision).




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fact that the parents provided alcohol to two teenage girls, one of them the parents’ child, A.A.3
The DHHR further alleged that the prior involuntary termination was based upon the parents’
failure to address their children’s developmental delays, in addition to lengthy and unreasonable
delays in obtaining two important surgeries for a child to address serious medical conditions—
pneumonia and a kidney infection. According to the petition, “[t]he lengthy postponements of
the surger[ies] resulted in further, significant developmental delays.” According to the petition,
when the DHHR investigated the birth of R.A., petitioner informed the DHHR that she was
“unaware as to why she lost the rights to her [older] children” and that “she was treated unfairly
and could not recall why her rights were terminated.” The father similarly indicated that “he did
not understand why [Child Protective Services] was at the hospital and trying to remove his
child.” According to the petition, the father “stated that he was treated unfairly and [did] not
understand why his rights were terminated” in regard to the older children. The petition further
indicated that the father is a registered sex offender. Ultimately, the DHHR alleged that the
parents failed to remedy the circumstances that led to the prior involuntary termination of their
parental rights to older children, especially in light of the fact that “at the time of the parents’
termination in 2017 . . . they had not accepted responsibility for their deficiencies in parenting.”
The petition alleged that the parents continued to deny responsibility or acknowledge any
wrongdoing. The parents later waived their preliminary hearings.

        In January of 2019, petitioner stipulated to abusing and neglecting the child based on the
prior involuntary termination of her parental rights to the older children. Accordingly, the circuit
court adjudicated petitioner of abuse and neglect and set the matter for disposition.

       In March of 2019, the circuit court held a dispositional hearing. Prior to the hearing, both
parents moved for improvement periods. Both the DHHR and the guardian opposed the motions.
During the hearing, the parents both testified and disputed the basis for the prior involuntary
termination of their parental rights.4 The parents also presented testimony from additional


       3
         A.A. was petitioner’s step-daughter. Additionally, the petition makes reference to the
fact that, while providing the teenage girls with alcohol, the parents engaged in “a game . . . with
sexual innuendos” with the girls. Ultimately, the DHHR alleged that the nature of the game was
unclear, but indicated that the parents’ conduct “was clearly inappropriate.” The record indicates
that both parents were charged criminally as a result of this conduct.
       4
          On appeal, petitioner makes certain factual claims surrounding her prior abuse of A.A.
First, petitioner alleges that the State dismissed the criminal charges filed against her stemming
from her conduct with A.A. and her minor friend and providing those children alcohol. On
appeal, however, petitioner fails to provide any evidence to corroborate that claim. In support of
this assertion, she simply cites to the DHHR’s petition, which states that petitioner “claimed
these charges were dropped.” Even assuming, however, that petitioner is correct that the charges
were dismissed, the failure to obtain a criminal conviction based on the same incident that gave
rise, in part, to the prior abuse and neglect proceeding is irrelevant because criminal convictions
must be obtained by satisfying a higher evidentiary standard than is applicable in abuse and
neglect proceedings. See syl. pt. 2, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995)

                                                                                   (continued . . . )
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witnesses regarding their fitness to parent the child, including testimony from A.A., who had
reached the age of majority.5

        In its dispositional order, the circuit court specifically found that the “prior termination of
[the parents’] parental rights [was based on] . . . medical neglect[,] . . . inappropriate sexual
conduct with the older child and her friend, and serving alcohol to the older child and her
friend.” The circuit court went on to find that “[b]oth parents failed to accept responsibility for or
acknowledge these parental deficiencies during the prior abuse and neglect matter” and that
“[o]utside of [the father’s] testimony today that they should have sought medical treatment for
the younger child sooner, both parents continue to fail to accept responsibility for the abuse they
were adjudicated upon in 2016.” Given the parents’ refusal to accept responsibility for the
conditions that led to the prior involuntary termination of their parental rights and the fact that
they failed to substantially correct those conditions, the circuit court found that the child’s best


(addressing the State’s “heavy burden under the guilt beyond a reasonable doubt standard” in
criminal proceedings); syl. pt. 1, In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176 (1997)
(addressing the DHHR’s burden to prove “conditions existing at the time of the filing of the
petition . . . by clear and convincing” evidence). Accordingly, the fact that petitioner may not
have been criminally convicted as a result of her abusive conduct does not invalidate the prior
involuntary termination of her parental rights.
       5
         Petitioner asserts that A.A. testified in these proceedings that she fabricated her
allegations against the parents. We note, however, that issues regarding A.A.’s recantation were
addressed during the prior proceeding. Indeed, in affirming the prior involuntary termination of
petitioner’s parental rights, we noted that “A.A.[] testified at the [adjudicatory] hearing that she
lied about the abuse because the father would not allow her boyfriend to stay overnight with
her.” In re M.A., 2017 WL 4773057, at *2. However, in addition to the child’s attempt to recant
her allegations during the prior proceeding, the circuit court

       heard other evidence that A.A.[] fabricated her recantation, including A.A.[]’s
       admission that, approximately two weeks before the hearing, she texted the same
       underage friend who engaged in the actions giving rise to the petition and told her
       that she recanted her testimony so that her siblings would be allowed to go home.
       The circuit court also heard testimony from the friend wherein she stated that
       A.A.[] asked her to lie about the abuse and say it did not happen. A.A.[]’s friend
       also testified about the abuse consistent with her statement to law enforcement.

Id. As such, it is clear that the circuit court in the prior proceeding considered the possibility that
A.A. fabricated the allegations against the parents and rejected this assertion based on additional
evidence and testimony that corroborated the original allegations. Accordingly, any assertion that
petitioner either remedied or did not need to remedy any issues of abuse and neglect stemming
from this conduct because she was not convicted of any crime or because she asserts that the
victim subsequently recanted her allegations has no basis in law or fact.




                                                  3
interests necessitated termination of their parental rights. The circuit court further found that the
failure to acknowledge the parental deficiencies resulted in a situation in which there was no
reasonable likelihood the conditions of abuse and neglect could be substantially corrected in the
near future. As such, the circuit court terminated petitioner’s parental rights. 6 It is from the
dispositional 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). On appeal, we find no error in
the proceedings below.

        In support of her lone assignment of error, petitioner argues that she was entitled to a
less-restrictive disposition because she established a substantial change in circumstances since
the prior termination of her parental rights and that she was likely to fully participate in an
improvement period. We note, however, that neither of these assertions has a basis in the
evidence, especially considering the circuit court’s findings regarding petitioner’s failure to
acknowledge the conditions of abuse and neglect that led to the prior involuntary termination of
her parental rights to her older children.

        On appeal, petitioner does not challenge the circuit court’s finding that, other than the
father’s testimony that the parents should have sought medical treatment for one of the older
children sooner, “both parents continue to fail to accept responsibility for the abuse they were
adjudicated upon in 2016.” Indeed, the record is clear that petitioner continues to disregard her
abuse of the older children, as evidenced by her belief that she corrected the conditions of abuse
and neglect from the prior proceeding because the couple maintained suitable housing with
running water and electricity, maintained an automobile, and had stable income through the



       The father’s parental rights were also terminated below. According to respondents, the
       6

permanency plan is for the child to be adopted by the current foster family.



                                                 4
father’s employment. Petitioner fails to recognize that none of these issues is in any way related
to the basis for the prior termination of her parental rights to older children.

       In regard to a failure to accept responsibility for abuse and neglect, this Court has held as
follows:

       [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
       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 In re: Charity H., 215
W. Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Because petitioner failed to acknowledge the
continuing conditions of abuse and neglect present in the home, it was not error for the circuit
court to deny her an improvement period, since it would have been futile. Accordingly, petitioner
cannot establish an abuse of discretion in the denial and is entitled to no relief. 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, as addressed above, petitioner’s assertion that she substantially remedied the
circumstances that led to the prior involuntary termination of her parental rights lacks a basis in
the record. Simply put, petitioner fails to provide any analysis or context with regard to this
assertion that would explain how her maintenance of a home with utilities and a vehicle, coupled
with the father’s income, in any way corrected the conditions of abuse and neglect upon which
she was previously adjudicated, including her failure to obtain appropriate medical treatment;
providing alcohol to minors, including her step-daughter; and sexually inappropriate behavior
with minors, including her step-daughter.

       We have previously held as follows:

       [w]here there has been a prior involuntary termination of parental rights to a
       sibling, the issue of whether the parent has remedied the problems which led to
       the prior involuntary termination sufficient to parent a subsequently-born child
       must, at minimum, be reviewed by a court, and such review should be initiated on
       a petition pursuant to the provisions governing the procedure in cases of child
       neglect or abuse set forth in West Virginia Code §§ [49-4-601 through 49-4-610].
       Although the requirement that such a petition be filed does not mandate
       termination in all circumstances, the legislature has reduced the minimum
       threshold of evidence necessary for termination where one of the factors outlined
       in West Virginia Code § [49-4-605(a)] is present.




                                                 5
In re Kyiah P., 213 W. Va. 424, 427, 582 S.E.2d 871, 874 (2003) (quoting syl. pt. 2, In the
Matter of George Glen B., 205 W. Va. 435, 518 S.E.2d 863 (1999)). The record is devoid of any
attempts by petitioner to correct the conditions of abuse and neglect that led to the prior
involuntary termination of her parental rights to older children. Accordingly, we find no error in
the circuit court’s findings in this regard.

        Similarly, we find no error in the termination of petitioner’s parental rights, as opposed to
a less-restrictive disposition, given that the circuit court found there was no reasonable likelihood
petitioner could substantially correct the conditions of abuse and neglect and that termination
was necessary for the child’s welfare, as required by West Virginia Code § 49-4-604(b)(6).
Pursuant to West Virginia Code § 49-4-604(c), “‘[n]o reasonable likelihood that conditions of
neglect or abuse can be substantially corrected’ means that . . . the abusing adult . . . [has]
demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own or
with help.” Additionally, this Court has held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [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 [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). As set forth above, petitioner
failed to acknowledge the conditions of abuse and neglect, thereby making them untreatable.
Accordingly, we find no error in the circuit court’s findings that there was no reasonable
likelihood petitioner could substantially correct the conditions of abuse and neglect or that
termination was necessary for the child’s welfare. Based on these findings, termination of
petitioner’s parental rights, as opposed to a less-restrictive dispositional alternative, was
appropriate.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
March 8, 2019, order is hereby affirmed.

                                                                                          Affirmed.

ISSUED: September 13, 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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