In re P.B., N.B., and A.B.

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED

In re P.B., N.B., and A.B. October 19, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

No. 18-0398 (Hampshire County 17-JA-30, 31, and 32) OF WEST VIRGINIA

MEMORANDUM DECISION

Petitioner Father C.B., by counsel Jeremy B. Cooper, appeals the Circuit Court of

Hampshire County’s March 8, 2018, order terminating his parental rights to P.B., N.B., and

A.B.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 also in support of the

circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating his

parental rights without first granting him an improvement period.

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 May of 2017, the DHHR filed a child abuse and neglect petition against the parents.

Specifically, the DHHR alleged that the parents engaged in a domestic violence incident in

which petitioner punched the mother in the face in the presence of the children. The mother then

fled the home and requested assistance at the home of a neighbor. Petitioner went to the

neighbor’s home to retrieve the mother and punched the neighbor when he prevented petitioner

from entering the home, knocking his teeth out. Upon arriving at the home, law enforcement

officers found the mother passed out due to intoxication, visibly injured. Petitioner was arrested

at that time and eventually pled guilty to domestic battery and battery. Petitioner’s home was

observed to be in poor condition with no furniture or running water and the children were dirty,

the youngest child having a severe diaper rash. Child Protective Services (“CPS”) removed the

children from the home and discovered that the two older children, then ages seven and five,

were unable to communicate. It was later determined that P.B. was deaf and had no knowledge

of sign language, and N.B. was autistic and nonverbal. Petitioner waived his preliminary hearing.

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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The DHHR filed an amended petition in September of 2017, alleging medical neglect

based upon the parents’ failure to provide medical and dental care to the children. According to

the petition, N.B. had not received immunizations since 2012 and had severe dental issues which

required surgery and six teeth to be pulled. A.B. was anemic and required surgery for a hernia.

P.B. was diagnosed with malnutrition, had several cavities, and had his last immunizations prior

to 2011.

The adjudicatory hearing was held over several days from August of 2017 through

November of 2017. Petitioner stipulated to abusing and neglecting his children; however, the

DHHR requested and was granted the opportunity to submit evidence regarding the chronic

nature of the abuse and neglect, to which petitioner did not stipulate. Petitioner then testified that

he did not believe the children were abused, but conceded that they might have been neglected.

He denied that the children were medically neglected, stating that he took them to dentists and

doctors, despite evidence to the contrary. Petitioner admitted that he lied during his

psychological evaluation to avoid incriminating himself in his criminal case, but insisted that he

would comply with services if they were offered.

After hearing testimony, the circuit court found that the parents neglected P.B.’s

education and thwarted the efforts of his educators to assist with his care and education,

including failing to enroll the child in the West Virginia School for the Deaf for a period of

approximately one month. The circuit court found that the parents exhibited a history of

domestic violence in the presence of the children, which the mother attempted to minimize.

Further, the circuit court determined that petitioner had unresolved anger issues and frequently

interrupted the proceedings. The circuit court also found that the children were medically

neglected. Despite stipulating to the allegations contained in the petition, petitioner denied any

wrongdoing and tried to justify his behavior. As such, the circuit court concluded that petitioner

chronically neglected and abused the children and adjudicated him as an abusing parent.

Petitioner requested a post-adjudicatory improvement period, but the same was denied upon

findings that he was not likely to fully participate with services.

The circuit court held a dispositional hearing in February of 2018. Petitioner advised that

he would test positive for marijuana if tested. At the close of evidence, the parents requested a

post-dispositional improvement period, which was denied. The circuit court found that petitioner

accepted little responsibility for his conduct, minimized his involvement in the abuse, placed

blame for his actions on other persons, lied during his psychological evaluation, failed to show

insight into the conditions of abuse and/or neglect, and failed to resolve any of the conditions of

abuse and/or neglect. He failed to seek stable housing and was living in a camper with the

mother as of the date of the hearing. Petitioner consistently put his needs above the needs of his

children. As such, the circuit court determined that there was no reasonable likelihood that

petitioner could correct the conditions of abuse and/or neglect in the near future and that the best

interests of the children necessitated termination of parental rights. It is from the March 8, 2018,

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order denying him a post-dispositional improvement period and terminating his parental rights

that petitioner appeals.2

The Court has previously established the following standard of review in cases such as

this:

“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 argues that the circuit court erred in terminating his parental rights

without first granting him an improvement period because he lied during his psychological

evaluation. However, petitioner avers that the record demonstrates that he accepted responsibility

for his actions, admitted that his children were neglected, maintained employment, and expressed

a willingness to participate in whatever services were offered by the DHHR. He argues that the

circuit court should have granted him an improvement period rather than terminate his parental

rights. We disagree.

The decision to grant or deny an improvement period rests in the sound discretion of the

circuit court. 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) (“[i]t is within

the court’s discretion to grant an improvement period within the applicable statutory

requirements.”). We have also held that a parent’s “entitlement to an improvement period is

conditioned upon the ability of the respondent to demonstrate ‘by clear and convincing evidence,

that the respondent is likely to fully participate in the improvement period . . . .’” In re Charity

H., 215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004). Further, pursuant to West Virginia Code §

49-4-604(b)(7)(A), the DHHR is not required to make reasonable efforts to preserve the family if

the circuit court determines that “[t]he parent has subjected the child . . . to aggravated

circumstances which include, but are not limited to, . . . chronic abuse[.]”

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Both parents’ parental rights were terminated below. The children were placed in a

foster home with a permanency plan of adoption therein.

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Here, petitioner failed to demonstrate that he was likely to fully participate in an

improvement period. The evidence established that petitioner failed to acknowledge the

conditions of abuse and neglect, and demonstrated no insight to how his children were affected

by his actions. Despite stipulating to the allegations contained in the petition, petitioner testified

at the adjudicatory hearing that he did not believe his children were abused. While he conceded

they might have been neglected, he insisted that they were not medically neglected because he

had taken them to dentists and doctors. However, two of the children underwent surgeries

following their removal from petitioner’s care, and the circuit court found that all three children

were chronically neglected.

We have 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) (quoting In re Charity H., 215

W.Va. at 217, 599 S.E.2d at 640 (2004)). The record demonstrates that petitioner failed to

acknowledge the conditions of abuse and/or neglect and how his behavior negatively affected the

children, thus rendering an improvement period futile. Moreover, due to the chronic nature of the

abuse, the DHHR was not required to make reasonable efforts to preserve the family.

Accordingly, we find no error in the circuit court’s decision to deny petitioner an improvement

period.

We also find no error in the circuit court’s decision to terminate petitioner’s parental

rights. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are 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. According to West Virginia Code § 49-4-604(c)(3), 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 or parents have 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[.]

Here, evidence overwhelmingly demonstrates that there was no reasonable likelihood petitioner

could correct the conditions of abuse and neglect in the near future. The DHHR worker testified

at the dispositional hearing that petitioner did not request information about or voluntarily

participate in any program or training designed to address the conditions of abuse. West Virginia

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Code § 49-4-610(4) provides that the parent “shall be responsible for the initiation and

completion of all terms of the improvement period.” As such, petitioner’s failure to initiate

services meant that he did not participate in any services designed to reduce or prevent the

conditions of abuse. Moreover, according to the DHHR, there were no services that would

appropriately remedy the situation due to the chronic nature of the abuse. Further, contrary to

petitioner’s assertions, he did not accept responsibility for his actions and blamed others for his

situation. At the time of the dispositional hearing, he continued to deny issues with domestic

violence, admitted that he would test positive for marijuana, and failed to obtain suitable housing

as he was living in a camper. Accordingly, the circuit court correctly found that there was no

reasonable likelihood that the conditions of abuse and neglect could be corrected in the near

future and that termination was necessary for the children’s welfare. While petitioner argues that

he should have first been granted an improvement period, 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). Based on the foregoing, we

find that the circuit court did not err in terminating petitioner’s parental rights.

For these reasons, we find no error in the decision of the circuit court, and its March 8,

2018, order is hereby affirmed.

Affirmed.

ISSUED: October 19, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Paul T. Farrell sitting by temporary assignment

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating

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