                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


In re R.B. and A.A.                                                                 FILED
                                                                                 June 24, 2020
No. 19-0994 (Randolph County 19-JA-43 and 19-JA-44)                             EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION


        Petitioner Father J.A., by counsel G. Phillip Davis, appeals the Circuit Court of Randolph
County’s October 10, 2019, order terminating his parental rights to R.B. and A.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 children in support of the circuit court’s order. On appeal, petitioner
argues that the circuit court erred in 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.

        Given the nature of petitioner’s narrow assignment of error on appeal and his limited
argument in support, it is unnecessary to set forth extensive facts regarding the proceedings below.
Following the filing of its original abuse and neglect petition in May of 2019, the DHHR filed an
amended petition that included allegations of petitioner’s drug abuse. In August of 2019, petitioner
stipulated to adjudication, at which point the circuit court found him to be an abusing and
neglecting parent. The circuit court set the matter for disposition, at which time it intended to
address petitioner’s motion for an improvement period.

       In September of 2019, the circuit court held a dispositional hearing. Petitioner renewed his
motion for an improvement period and testified in support of this motion. The circuit court then

       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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heard evidence in support of the DHHR’s motion to terminate petitioner’s parental rights, after
which it made extensive findings of fact. According to the circuit court, petitioner tested positive
for methamphetamine when the case began and thereafter failed to submit to drug screens as
required. Additionally, the circuit court found that petitioner “ha[d not] visited with his children”
during the proceedings. What the circuit court found most concerning, however, was the fact that
“the only thing [petitioner] could identify that impacts his parenting with methamphetamine use is
that it could cloud his judgment” and that, in petitioner’s opinion, “he is an excellent father.” The
circuit court further found that petitioner was dishonest regarding his drug use, given that his
testimony at the dispositional hearing was that he would not test positive for any illegal substances
if he were to screen, yet he proceeded to test positive for methamphetamine. Based on the
foregoing, the circuit court found that petitioner failed to “recognize he has a drug problem.” In
regard to petitioner’s outstanding motion, the circuit court found that petitioner had “done nothing
to convince the [c]ourt that [he would] do anything to participate in an improvement period” and
denied the motion. Finally, the circuit court found that petitioner “allowed drugs to take over” and
that termination of his parental rights was in the children’s best interests. Accordingly, the circuit
court terminated petitioner’s parental rights. 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).

        On appeal, petitioner asserts that termination of his parental rights was erroneous “because
there was a less restrictive alternative to the termination of his parental rights.” He further asserts
that he “opposed the severance of his parental rights and preferred a less restrictive alternative.”
Finally, he alleges that he testified “that he could fully participate in a period of improvement”
and, thus, should have been granted one. This represents the totality of petitioner’s argument on
appeal. Critically, petitioner fails to assert that any of the circuit court’s detailed findings of fact
upon which the termination was based were erroneous or cite to any specific evidence in support
of his argument. As such, we find that he is entitled to no relief.


       2
       The mother’s parental rights were also terminated below. According to respondents, the
permanency plan for the children is adoption together in their current foster home.
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         First, we note that the circuit court found that petitioner’s testimony that he would comply
with an improvement period lacked credibility, given that the circuit court specifically indicated
that it was unconvinced petitioner would “do anything to participate in an improvement period.”
As we have previously held, “[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). Therefore, we will not disturb this finding on appeal or
otherwise disturb the circuit court’s denial of petitioner’s improvement period upon this finding.
Most important, however, is the circuit court’s finding that petitioner failed to acknowledge the
conditions of abuse and neglect at issue. This Court has previously 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 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) (citation omitted). Given
petitioner’s failure to acknowledge his issues with substance abuse, it is clear that the denial of an
improvement period was appropriate.

          Finally, it is clear that termination was appropriate because the circuit court found that
there was no reasonable likelihood petitioner could substantially correct the conditions of abuse
and neglect in the near future and that termination was necessary for the children’s welfare. In
regard to the first finding, West Virginia Code § 49-4-604(c) (2019) 3 provides that “‘[n]o
reasonable likelihood that conditions of neglect or abuse can be substantially corrected’ means that
. . . the abusing adult or adults have demonstrated an inadequate capacity to solve the problems of
abuse or neglect on their own or with help.” The circuit court made this specific finding based
upon petitioner’s failure to show any effort to mitigate the issues that necessitated the petition’s
filing. In regard to the second finding, the circuit court cited the children’s extended stay in foster
care and the fact that petitioner was unwilling to make efforts to ensure their safe return to his
custody in support of its finding that termination was necessary for their welfare. As noted above,
petitioner does not challenge these findings on appeal.

        Instead, petitioner simply asserts that he opposed termination, without setting forth any
evidence that could have supported the imposition of a less-restrictive dispositional alternative.
Indeed, petitioner is correct that less-restrictive alternatives to the termination of his parental rights
existed, but he ignores the fact that West Virginia Code § 49-4-604(b)(6) (2019) permits circuit
courts to terminate parental rights upon findings that there is no reasonable likelihood the
conditions of abuse and neglect can be substantially corrected and that termination is necessary for
the children’s welfare. Additionally, this Court has held that



        3
        Although the Legislature amended West Virginia Code § 49-4-604 effective June 5, 2020,
including renumbering the provisions, the amendments do not impact this case.
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                “[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 (2019)] . . . 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) (2019)] . . . 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 such, it is clear that the
circuit court did not err in terminating petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 10, 2019, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: June 24, 2020


CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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