                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


In re: S.B. and A.W.                                                                 FILED
No. 17-0220 (Kanawha County 16-JA-433 & 16-JA-434)                                June 16, 2017
                                                                                   RORY L. PERRY II, CLERK

                                                                                 SUPREME COURT OF APPEALS

                                                                                     OF WEST VIRGINIA


                               MEMORANDUM DECISION
        Petitioner Father C.W., by counsel Rick F. Holroyd, appeals the Circuit Court of
Kanawha County’s February 9, 2017, order terminating his parental rights to S.B. and A.W.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Michael L.
Jackson, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Jennifer N. Taylor, filed a response on behalf of the children in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in finding that (1) he
failed to improve during the proceedings and (2) the DHHR provided reasonable services.

        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 August of 2016, the DHHR filed an abuse and neglect petition against petitioner and
the mother. According to the petition, a family court previously granted custody of the children

       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). Additionally, although the record indicates that petitioner is
not the biological father of A.W., he presents assignments of error addressing both children in his
petition for appeal. Moreover, the circuit court’s order does not clearly delineate what rights, if
any, petitioner possessed in regard to A.W., as that child’s stepfather. However, the circuit
court’s dispositional order, in several instances, addresses petitioner in relation to both children.
For example, the dispositional order states that “[petitioner is] presently unwilling or unable to
provide adequately for the children’s needs.” The circuit court ultimately stated only that “the
parental rights of . . . [petitioner] are hereby permanently TERMINATED.” Because it is
unclear whether the circuit court terminated petitioner’s parental rights to S.B. alone or if it
terminated petitioner’s rights to both S.B., as her biological father, and his rights to A.W., as her
stepfather, and out of an abundance of caution, this memorandum decision affirms the circuit
court’s findings in their entirety as they relate to both children.


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to their maternal grandmother as a result of allegations of abuse and neglect before the family
court that resulted in a referral of the matter to the circuit court. According to the guardian, the
family court proceedings documented extensive DHHR involvement with the parents, as
evidenced by multiple case plans, safety plans, and other records that reflected several years of
DHHR services designed to remedy the conditions in the home. The petition further alleged that
the DHHR’s subsequent investigation of the home revealed the parents’ physical and mental
abuse of the children. At the subsequent preliminary hearing, the circuit court ordered
psychological evaluations and counseling for the parents and the children.

        In September of 2016, the circuit court held an adjudicatory hearing, during which a
Child Protective Services (“CPS”) worker testified that ten-year-old S.B. told him that petitioner
once shocked her with a Taser. The child recalled specific details of the event, including the
location, a description of the Taser, and the fact that the parents later activated the Taser in front
of the children as a threat to get them to behave. The CPS worker also testified to the children’s
statements regarding the various forms of punishment petitioner subjected them to, including
forcing the children to lie on their stomachs while petitioner struck their feet with a hairbrush;
forcing the children to stand with a bar extended over their heads for long periods; and dragging
the children by their hair. The CPS worker further testified that both children expressed fear of
the Taser being used on them. According to the CPS worker, the parents denied the allegations,
although they confirmed they owned a Taser. The CPS worker also testified that the children
confirmed these allegations in counseling sessions with a therapist. Another CPS worker testified
to the fact that S.B. refused to participate in visits with petitioner because she feared him, in
addition to the therapist’s recommendation to stop the visits. Petitioner testified and denied the
allegations. The circuit court also heard from the children’s maternal grandmother, who testified
that she filed a petition for temporary custody in the family court after the children informed her
of the parents’ abuse. Ultimately, the circuit court found that petitioner abused and neglected the
children. The circuit court further barred petitioner from visits with the children until he
completed treatment, as recommended by a psychiatrist. Petitioner thereafter moved for a post­
adjudicatory improvement period.

        In December of 2016, the DHHR submitted a court summary that indicated that petitioner
had not yet contacted the DHHR to initiate any services. The following month, the guardian filed
a report that noted petitioner’s psychological report stated that he failed to accept responsibility
for his actions. The psychological report also included a poor prognosis for petitioner, given that
it was “unlikely that any type or amount of intervention would reliably reduce [his] risk of future
child maltreatment.”

        In January of 2017, the circuit court held a dispositional hearing, during which both the
DHHR and the guardian recommended termination of petitioner’s parental rights. The DHHR
reiterated that petitioner failed to contact the DHHR to initiate services, including parenting and
reunification therapy. Petitioner also failed to request any additional services. Additional
testimony established that both children indicated that they did not want to participate in visits
with petitioner. Ultimately, the circuit court denied petitioner’s motion for a post-adjudicatory




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improvement period and terminated his parental rights to the children.2 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). Upon our review, the Court finds
no error in the proceedings below.

        First, the Court finds no error in the circuit court’s ruling that petitioner failed to show
improvement in his ability to properly parent the children during the proceedings below. In
support of this assignment of error, petitioner argues that the circuit court’s denial of visitation
prevented him from establishing his bond with the children. Petitioner additionally argues that it
was unreasonable to require him to obtain treatment prior to receiving visitation with the children
because of the short timeframe of the case. Moreover, petitioner argues that the DHHR’s failure
to provide him with services prevented him from establishing improvement. According to
petitioner, the circuit court’s finding was erroneous, and he should have been entitled to a formal
improvement period. We do not agree.

         The record is clear that visitation was denied because it was not in the children’s best
interests. While petitioner argues that he should have received visitation in order to establish his
ability to parent the children, “‘the best interests of the child is the polar star by which decisions
must be made which affect children.’ Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d
866, 872 (1989) (citation omitted).” Kristopher O. v. Mazzone, 227 W.Va. 184, 192, 706 S.E.2d
381, 389 (2011). Here, the children’s therapist recommended that petitioner not visit with the
children because of the detrimental effects to them. Moreover, the children themselves expressed
fear over visitation with petitioner and asked not to participate. As such, it is clear that the circuit
court did not err in denying petitioner visitation with the children.



       2
       According to the parties, the parental rights of all parents to all children were terminated
below. According to the guardian, the children are placed in the home of their maternal
grandmother with a goal of adoption therein.
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        Further, petitioner’s reliance on the DHHR’s alleged failure to contact him in order to
provide services is misplaced. West Virginia Code § 49-4-604(c)(3) clearly indicates that 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 .
       ...

As is clear from this statute, petitioner was required to follow through with the services the
DHHR offered. The record on appeal shows that the DHHR offered several services, including
therapy and counseling. However, petitioner’s failure to contact the DHHR to initiate these
services precluded him from ever beginning them, let alone following through with the services
such that the conditions of abuse and neglect could be corrected. As such, it is clear that the
circuit court did not err in finding that petitioner failed to show improvement during the
proceedings, as the record is devoid of petitioner undergoing any services designed to remedy
the conditions of abuse and neglect. Moreover, this evidence also supports the circuit court’s
denial of petitioner’s motion for a post-adjudicatory improvement period.

        Pursuant to West Virginia Code § 49-4-610(2)(B), a circuit court may grant a parent a
post-adjudicatory improvement period if “the [parent] demonstrates, by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period . . . .” Here,
petitioner failed to comply with the minimal requirement that he contact the DHHR to initiate
services. As such, the record is clear that petitioner could not establish that he was likely to fully
participate with the terms and conditions of a post-adjudicatory improvement period, given his
complete lack of participation in the proceedings. Accordingly, we find no error in the circuit
court’s denial of petitioner’s motion.

        Next, we find no error in the circuit court’s finding that the DHHR provided reasonable
services to petitioner. As outlined above, the DHHR offered petitioner multiple services,
although petitioner willfully failed to contact the DHHR so that he could comply with the same.
Further, in support of his assignment of error, petitioner argues that the circuit court should have
required the DHHR to return the children to the home so that he could show that the allegations
against him were “nothing more than allegations.” However, petitioner fails to cite to any
authority that would require the DHHR to return the children to his home after the circuit court
adjudicated him as an abusing parent and substantiated the allegations in the petition. Moreover,
as set forth above, it was established that visitation was not in the children’s best interests, so it
stands to reason that returning them to the home would have similarly been detrimental to their
wellbeing. In fact, in its dispositional order, the circuit court specifically found that
“[c]ontinuation in the home with the abusing parents is not in the children’s best interests
because their safety cannot be assured.” As such, we find no error in the circuit court’s refusal to
return the children to petitioner’s home.



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        Further, to the extent that petitioner argues on appeal that termination of his parental
rights was inappropriate because the circuit court did not require the DHHR to provide services
or grant him an improvement period, we find no error. Based, in part, on petitioner’s failure to
participate, even minimally, in services, the circuit court found that there was no reasonable
likelihood that petitioner could substantially correct the conditions of abuse and neglect. The
circuit court further found that petitioner continued to deny the allegations at the dispositional
hearing, which evidenced his refusal to accept responsibility for the abuse and neglect in the
home. We have held that

       [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 . .
       ..

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)). 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. Moreover, we have previously held that

               “[t]ermination 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). For these reasons, we find no
error in the circuit court’s termination of petitioner’s parental rights.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 9, 2017, order is hereby affirmed.

                                                                                        Affirmed.

ISSUED: June 16, 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

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