                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                               February 7, 2020
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
In re T.D. and X.A.                                                                 OF WEST VIRGINIA


No. 19-0571 (Taylor County 18-JA-84 and 18-JA-132)



                               MEMORANDUM DECISION



        Petitioner Father T.A., by counsel Aaron P. Yoho, appeals the Circuit Court of Taylor
County’s May 16, 2019, order terminating his parental rights to T.D. and X.A.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a
response in support of the circuit court’s order. The guardian ad litem, Terri L. Tichenor, filed a
response on behalf of the children in support of the circuit court’s order. On appeal, petitioner
argues the circuit court erred in terminating his parental rights and imposing a protective order
rather than utilizing a less-restrictive dispositional alternative.

       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 2018, the DHHR filed a child abuse and neglect petition alleging that petitioner
was the father of newborn T.D. The DHHR alleged that the child was born after petitioner was
convicted of possession of a controlled substance with the intent to deliver and sentenced to a one-
to-five-year term of incarceration. The DHHR further alleged that, during petitioner’s criminal
case, he demonstrated an addiction to illegal substances and did not participate in treatment of his
addiction. Additionally, the DHHR alleged that petitioner failed to provide financial and emotional
support for the child. The DHHR amended the petition in November of 2018 to include petitioner’s
other child, X.A., and that child’s mother as respondents. The DHHR alleged that petitioner


       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).
                                                  1
engaged in domestic violence with X.A.’s mother and had previously threatened to set fire to her
home and strike her with a baseball bat.

        The circuit court held adjudicatory hearings in November of 2018 and February of 2019.
The court heard testimony from X.A.’s mother that petitioner threatened her during their
relationship and that she was granted a domestic violence protective order against him. Further,
the mother testified that she suspected petitioner was abusing controlled substances during their
relationship and that he was angry and rude when “coming down” from his substance use. T.D.’s
mother testified that petitioner would scream and yell at her as well. Specifically, she testified that
petitioner punched a hole in her closet door when she ended their relationship. Petitioner testified
and denied any physical domestic violence with either of his children’s mothers. However,
petitioner admitted that his drug and alcohol use contributed to his relationship problems.
Petitioner further testified that he was indicted in January of 2019 for possession of a controlled
substance with the intent to deliver and was given an opportunity to participate in a substance
abuse treatment program. However, petitioner abandoned the program prior to completion.

        Ultimately, the circuit court found that petitioner’s drug and alcohol addiction prevented
him from parenting effectively and that his voluntary failure to address his addiction caused his
incarceration, which prevented his contact with the children. Further, the circuit court found that
the domestic violence he perpetrated upon the mothers risked the safety of the children while in
his custody. Although the circuit court acknowledged petitioner’s attempts to admit to some of the
allegations in the petition, it noted that petitioner continued to deny the domestic violence despite
the credible testimonies of both mothers and the domestic violence protective order issued in the
Family Court of Roane County, West Virginia. Accordingly, the circuit court adjudicated
petitioner as an abusing parent.

         In March of 2019, the circuit court held the final dispositional hearing. Petitioner continued
to deny that he threatened to set fire to X.A.’s home and denied ever threatening X.A.’s mother.
Petitioner asserted that he could soon be paroled and would seek substance abuse treatment upon
release. The circuit court found that petitioner provided incredible testimony that was contrary to
its prior findings and the credible testimony of X.A.’s mother. Because petitioner “continue[d] to
deny the heart of the allegations” of domestic violence, the circuit court found that no services
could be offered to him to correct the conditions of abuse and neglect. The court terminated
petitioner’s parental rights upon findings that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected in the near future and that it was
in the children’s best interests to terminate his rights. Further, the circuit court granted a protective
order against petitioner and ordered that he have no contact, direct or indirect, with X.A., T.D., or
their respective mothers. The circuit court’s decision was memorialized by its May 16, 2019, order.
Petitioner now appeals that order.2

        The Court has previously held as follows:



        T.D.’s mother completed an improvement period, and the child achieved permanency in
        2

her custody. X.A.’s mother was a nonabusing parent, and the child has achieved permanency in
her custody.
                                                   2
                “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 review, this Court finds no
error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred in terminating his parental rights
when a less-restrictive alternative to termination was more appropriate. Petitioner asserts that the
main cause of his abuse and neglect to his children was his addiction to controlled substances and
alcohol, which led to his severe mood swings and domestic violence against the mothers of his
children. Petitioner asserts that disposition under West Virginia Code § 49-4-604(b)(5), which
permits the appointment of a legal guardian for the children rather than termination of parental
rights, was more appropriate in this case. However, this Court has previously 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). In this case, the circuit court
found that there was no reasonable likelihood that petitioner could correct the conditions of abuse
and neglect in the near future. Notably, petitioner does not challenge this finding on appeal. The
circuit court found that petitioner engaged in domestic violence against the children’s mothers
based upon their testimony.3 Petitioner’s continued denial of these findings created a barrier to the
treatment of the issues that gave rise to the petition, which the circuit court properly considered.
See In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (“Failure to acknowledge the
existence of the problem, i.e., the truth of the basic allegation pertaining to the alleged abuse and
neglect . . . results in making the problem untreatable. . . .”). Further, petitioner blamed his behavior


        “A reviewing court cannot assess witness credibility through a record. The trier of fact is
        3

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).
                                                   3
on his substance abuse. Yet, when petitioner was offered an opportunity for treatment in lieu of
incarceration, the record shows that he did not follow through with treatment. Because we find
that the circuit court’s conclusion that there was no reasonable likelihood that the conditions of
abuse and neglect could be substantially corrected is supported by the record and is not clearly
erroneous, the termination of petitioner’s parental rights was warranted. Therefore, petitioner is
entitled to no relief on appeal.

        Petitioner also argues that the circuit court erred in imposing a protective order because
“no physical or tangible” evidence was introduced regarding domestic violence between petitioner
and the children’s mothers. However, the circuit court heard testimony from the mothers that
petitioner was verbally abusive to them, threatened their lives, and committed violent acts in their
presence, such as throwing his cellphone and punching a hole in a closet door. As noted above, the
circuit court found this testimony credible and adjudicated petitioner as an abusing parent on the
basis of that evidence. Importantly, at the adjudicatory hearing, the circuit court found by clear
and convincing evidence that “[t]he domestic violence perpetrated by [petitioner] prevents the
safety of the children with him, as both of the mothers are victims of his violence.” See W. Va.
Code § 49-4-601(i) (“The findings [as to whether the child is abused or neglected and whether the
respondent is an abusing parent] must be based upon conditions existing at the time of the filing
of the petition and proven by clear and convincing evidence.”). Contrary to petitioner’s argument
that the evidence presented did not support the imposition of a protective order, a court “shall enter
a protective order if it finds, after hearing the evidence, that [the moving party] has proved the
allegations of domestic violence by a preponderance of the evidence.” W. Va. Code § 48-27-501(a)
(emphasis added). Thus, considering the circuit court in this case found the allegations of domestic
violence were proven by clear and convincing evidence, rather than a mere preponderance of the
evidence, we find no merit to petitioner’s assertion that insufficient evidence was presented for the
imposition of this protective order.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its May
16, 2019, order is hereby affirmed.

                                                                                           Affirmed.

ISSUED: February 7, 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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