                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS
                                                                                     FILED
                                                                                  June 19, 2017
In re: D.H.-1, G.H., B.H., and A.H.                                               RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
No. 16-1123 (Hampshire County 16-JA-23, 16-JA-24, 16-JA-25, & 16-JA-42)


                              MEMORANDUM DECISION
        Petitioner Father D.H.-2, by counsel Lauren M. Wilson, appeals the Circuit Court of
Hampshire County’s November 2, 2016, order terminating his parental rights to D.H.-1, G.H.,
B.H., and A.H.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 (“guardian”), Joyce E. Stewart, filed a response on behalf of the children in support of the
circuit court’s order.2 On appeal, petitioner argues that the circuit court erred by failing to
consider less-restrictive alternatives to the termination of his parental rights and in denying his
request for post-termination visitation.

        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.

       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, because petitioner and one of the children
share the same initials, we will refer to the child as D.H.-1 and petitioner as D.H.-2. throughout
this memorandum decision.
       2
         The guardian’s response to this Court, which was filed as a summary response pursuant
to Rules 10(e) and 11(h) of the Rules of Appellate Procedure, fails to include a section regarding
the status of the child. This information is of the utmost importance to this Court. We refer the
guardian to Rule 11(i) of the Rules of Appellate Procedure, which requires “briefs filed by the
parties (including the guardian ad litem)” in abuse and neglect appeals to contain a section on the
current status of and permanency plans for the children and the current status of the parental
rights of all of the children’s parents.




                                                1


         In February of 2016, the DHHR received a referral alleging that petitioner sexually
abused his girlfriend’s niece, E.W., who was then seventeen years old and lived with petitioner,
his girlfriend, and their three children since the age of seven.3 During the investigation, petitioner
denied the allegations of sexual abuse. E.W. disclosed to the DHHR interviewer that she was
pregnant but that petitioner was not the unborn child’s biological father. She further stated that
she was afraid of her aunt, A.B., because she was not “taking [her] pregnancy well” and
threatened to “kill them all.” E.W. claimed that she did not understand A.B.’s reaction to her
pregnancy. A.B. told the interviewer that she suspected that petitioner and E.W. were engaging
in an inappropriate sexual relationship and admitted that she threatened to “wreck [E.W.’s] car.”
E.W.’s school nurse told the interviewer that E.W. disclosed to her that petitioner was the
biological father of her unborn child and that they had engaged in “consensual sexual
intercourse.” The interviewer interviewed E.W. a second time wherein E.W. admitted that she
and petitioner engaged in sexual intercourse and that he “could be the father of her baby.” As a
result of the investigation, in March of 2016, the DHHR filed an abuse and neglect petition
alleging that petitioner sexually abused E.W. Also in March of 2016, petitioner waived his right
to a preliminary hearing and the circuit court ordered that he have no contact with E.W.

        In April of 2016, the circuit court held an adjudicatory hearing wherein petitioner failed
to appear but was represented by counsel. The circuit court continued the hearing. Petitioner was
subsequently arrested and charged criminally with sexual abuse and transporting a minor out of
State after he transported E.W. to the State of Virginia and spent the night in a hotel room with
her.

         In May of 2016, the circuit court held a hearing and found petitioner in contempt of court
for violating its prior order prohibiting him from having contact with E.W. Also in May of 2016,
the DHHR filed an amended petition adding petitioner’s criminal charges and alleging that he
was the biological father of E.W.’s unborn child. Subsequently, in June of 2016, E.W. wrote a
letter to the circuit court in an attempt to take full responsibility for the sexual intercourse with
petitioner and to exonerate him from any responsibility for his actions.

         Also in June of 2016, the circuit court held an adjudicatory hearing wherein E.W.
testified that she continued to have daily contact with petitioner. She also testified that petitioner
asked her to lie about “him being the father of her baby.” Petitioner refused to testify and
asserted his Fifth Amendment privilege against self-incrimination.4 The circuit court noted that
petitioner’s refusal to testify in the abuse and neglect proceedings could result in a “negative
inference” against him. At the close of the hearing, the circuit court found that petitioner “had
sex with [E.W.] and had sex with her in the home where the minor children, [D.H.-1, B.H., and


       3
           A.B., petitioner’s girlfriend, is the mother of D.H.-1, G.H., and B.H.
       4
       The Fifth Amendment of the United State Constitution provides that “[n]o person shall
be compelled in any criminal case to be a witness against himself.”




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G.H.] were.” The circuit court also found that petitioner is the father of E.W.’s child, A.H., and
that A.H. was the product of an inappropriate sexual relationship.

         In October of 2016, the circuit court held a dispositional hearing wherein petitioner
presented no evidence or testimony but requested a less-restrictive disposition than the
termination of his parental rights. Petitioner also moved the circuit court for post-termination
visitation with his children. The circuit court found that petitioner failed to acknowledge or
provide a credible explanation as to the allegations of sexual abuse and chose to remain silent
throughout the proceedings. The circuit court, therefore, considered petitioner’s failure to testify
as affirmative evidence of his culpability. The circuit court found that there was no reasonable
likelihood petitioner could substantially correct the conditions of abuse and neglect and
terminated his parental rights to all the children by order dated November 2, 2016.5 The circuit
court also found that post-termination visitation with petitioner would not serve the children’s
best interests and would be detrimental to their well-being. The circuit court noted that it would
reconsider the issue of post-termination visitation upon petitioner’s motion when he
acknowledged and accepted responsibility for his actions and participated in a sexual offender
treatment program as necessary to remediate his actions. It is from this November 2, 2016, order
that petitioner appeals.6

          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

          5
        Petitioner’s parental rights to all the children were terminated below. D.H.-1, G.H., and
B.H. were all placed with their mother, A.B., after she completed an improvement period and the
permanency plan is for the children to remain in her home. A.H. was placed in foster care after
an abuse and neglect petition was filed against E.W., her mother. E.W. is currently participating
in an improvement period and the permanency plan for A.H. is reunification with the mother.
6
    In regard to child support, this Court has held that,

          [a] circuit court terminating a parent’s parental rights pursuant to W.Va. Code, §
          49-6-5(a)(6) [now West Virginia Code § 49-4-604], must ordinarily require that
          the terminated parent continue paying child support for the child, pursuant to the
          Guidelines for Child Support Awards found in W.Va. Code, § 48-13-101, et seq.
          [2001].

Syl. Pt. 2, in part, In re Ryan B., 224 W.Va. 461, 686 S.E.2d 601 (2009). The
dispositional order in the matter below is silent as to petitioner’s post-termination child
support obligation.




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       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 argues that the circuit court erred in terminating his parental rights
without imposing a less-restrictive dispositional alternative. We disagree. West Virginia Code §
49-4-604(a)(6) provides that circuit courts are directed to terminate parental rights upon findings
that there is “no reasonable likelihood that the conditions of neglect or abuse can be substantially
corrected in the near future” and that termination is necessary for the children’s welfare. West
Virginia Code § 49-4-604(c)(3) provides that no reasonable likelihood that the conditions of
abuse or neglect can be substantially corrected exists when “‘[t]he abusing parent . . . ha[s] not
responded to or followed through with a reasonable family case plan or other rehabilitative
efforts[.]” We have also held that “[t]ermination . . . may be employed without the use of
intervening less restrictive alternatives when it is found that there is no reasonable likelihood . . .
that conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 7, in part, In re Katie
S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

       In the instant case, it is clear that there was no reasonable likelihood that petitioner could
have substantially corrected the conditions of abuse or neglect in the near future. Petitioner
denied the allegations of sexual abuse and refused to address the issues of abuse.

       [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)). Because petitioner failed to acknowledge his
abusive conduct, it is clear that the circuit court correctly found that there was no reasonable
likelihood the conditions of abuse could be substantially corrected. Moreover, the circuit court
also found that termination was necessary for the children’s welfare. As previous stated, pursuant
to West Virginia Code § 494-604(a)(6), circuit courts are directed to terminate parental rights
upon these findings.

       Additionally, the Court finds no error in the circuit court’s denial of petitioner’s motion
for post-termination visitation. According to petitioner, because he expressed a desire to visit



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with his children, the circuit court erred in denying him post-termination visitation. Again, we do
not agree. We have previously held as follows:

                [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). The record on appeal is
devoid of any evidence that continued visitation with petitioner would not be detrimental to the
children’s wellbeing. As outlined above, petitioner took no steps to correct the conditions of
abuse and neglect in the home and continued to deny the allegations of abuse. Based upon the
evidence, it is clear that continued contact with petitioner would not be in the children’s best
interests. As such, we find no error in the circuit court’s denial of post-termination visitation
below.

        Finally, because the record indicates that A.H.’s mother is currently on an improvement
period, this Court reminds the circuit court of its duty to establish permanency for the child. Rule
39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires:


       At least once every three months until permanent placement is achieved as
       defined in Rule 6, the court shall conduct a permanent placement review
       conference, requiring the multidisciplinary treatment team to attend and report as
       to progress and development in the case, for the purpose of reviewing the progress
       in the permanent placement of the child.


Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child
within twelve months of the date of the disposition order. As this Court has stated,


               [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
       placement of an abused and neglected child following the final dispositional order
       must be strictly followed except in the most extraordinary circumstances which
       are fully substantiated in the record.


Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that


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       [i]n determining the appropriate permanent out-of-home placement of a child
       under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4­
       604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
       home for the child and shall consider other placement alternatives, including
       permanent foster care, only where the court finds that adoption would not provide
       custody, care, commitment, nurturing and discipline consistent with the child’s
       best interests or where a suitable adoptive home can not be found.

Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).

       For the foregoing reasons, the circuit court’s November 2, 2016, order is hereby affirmed.


                                                                                       Affirmed.

ISSUED: June 19, 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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