In re: H.B., L.M., K.C. and L.C.

STATE OF WEST VIRGINIA

FILED

SUPREME COURT OF APPEALS

November 4, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

In re H.B., L.M., K.C., and L.C.

No. 20-0178 (Ohio County 19-CJA-74, 19-CJA-75, 19-CJA-76, and 19-CJA-77)

MEMORANDUM DECISION

Petitioner Father J.M., by counsel Joshua J. Norman, appeals the Circuit Court of Ohio

County’s January 22, 2020, order terminating his parental and custodial rights to H.B., L.M., K.C.,

and L.C. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel

Brandolyn N. Felton-Ernest, filed a response in support of the circuit court’s order. The guardian

ad litem, Mark D. Panepinto, 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 denying his right to a

meaningful opportunity to be heard, finding aggravated circumstances applied, denying him an

improvement period, finding that there was no reasonable likelihood he could substantially correct

the conditions of abuse and neglect, and terminating his parental and custodial 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.

In May of 2019, the DHHR filed an abuse and neglect petition alleging that petitioner

abused and neglected the children. 2 At the time, the children resided with their mother, their

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).

2

Petitioner is the biological father of L.M. only, but claims to be a psychological parent of

the remaining children. According to the record, all the children resided with petitioner at times

and call him “dad.” Although the circuit court did not make any finding as to whether petitioner

(continued . . . )

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maternal grandmother, and the grandmother’s boyfriend, D.H. According to the DHHR, petitioner

also resided at the home occasionally. The petition set forth information from a referral alleging

that D.H. would make his grandson, L.H., who is not at issue in this appeal, smoke marijuana with

the mother, the grandmother, and other children. The referral also alleged that D.H. would force

his grandson and L.M. to disrobe and engage in sexual intercourse with one another. During a

Child Protective Services (“CPS”) investigation into D.H.’s abuse of his grandson, the grandson

confirmed these allegations, in addition to disclosing that D.H. would handcuff and restrain him

in a cage at times.

CPS continued to investigate the matter and discovered that petitioner had previously

admitted knowledge of D.H.’s sexual abuse of L.M. and H.B. Specifically, two witnesses indicated

that petitioner previously asked to move himself, the mother, and the children into the witnesses’

home because of the sexual abuse. Additionally, the petition alleged that petitioner “admitted to

CPS that he was aware that [D.H.] was sexually abusing [the children].” Specifically, petitioner

described an incident in which he came to the home and found L.M. locked in her room, terrified.

The child disclosed that D.H. attempted to have her perform fellatio on him, at which point she

locked herself in her room. According to petitioner, the child’s room contained bowls of feces and

urine that the child used to relieve herself because of her fear of leaving the room. Petitioner further

admitted that two of the children confided in him and the mother about the abuse, but that neither

parent reported the abuse or confronted D.H. Petitioner further corroborated L.H.’s reports of being

confined, describing having seen the child restrained in handcuffs and a dog cage. Again, petitioner

failed to obtain any help for the child. Finally, the petition alleged that the conditions in the home

were deplorable, the home at times lacked appropriate utilities, and the parents provided the

children with insufficient food. At the time the children were removed, the two youngest children

were infected with lice, one child had ringworm, and another was behind on immunizations. Based

on these conditions, the DHHR alleged that petitioner abused and neglected the children.

Following the petition’s filing, petitioner waived his preliminary hearing.

Thereafter, petitioner filed a motion for a post-adjudicatory improvement period. In

opposition to this motion, the DHHR argued that petitioner previously admitted that he was aware

of the sexual abuse in the home, although the DHHR had been informed that petitioner recanted

that statement. According to the DHHR, petitioner’s recantation was not in the children’s best

interest “and show[ed] that he is only motivated by protecting himself and [the mother].” Further,

despite petitioner’s recantation, the DHHR alleged that he “claims to have this incredible fear of

[D.H.], yet he allowed his children to be exposed to [D.H.].” The DHHR further alleged that

petitioner tested positive for various controlled substances during several drug screens and that

“[h]e still cannot place his child’s interest before his own.”

In August of 2019, the circuit court held an adjudicatory hearing. Following the

presentation of the evidence, the circuit court adjudicated petitioner as an abusing and neglecting

parent. The following month, the circuit court held a hearing on petitioner’s motion for a post-

should enjoy status as a psychological parent of the other children, it nonetheless terminated

petitioner’s parental and custodial rights “to his child [L.M.] and the other children, [H.B., L.C.]

and [K.C.].” Accordingly, we will address the circuit court’s actions as they relate to all of the

children below, not just petitioner’s lone biological child.

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adjudicatory improvement period. Based on the evidence, the circuit court found that petitioner

previously admitted to the DHHR that he and the mother knew of the sexual abuse in the home,

although petitioner later recanted this statement. The circuit court also found that petitioner

“reported seeing [D.H.] keep [his grandson] in a dog cage.” Accordingly, the circuit court found

that petitioner failed to protect the children. Further, the circuit court noted petitioner’s repeated

positive screens when he submitted to drug testing. As such, the circuit court found that an

improvement period would be futile and denied the same. 3

Following dispositional hearings in November and December of 2019, the circuit court

made detailed findings regarding petitioner’s inability to correct the conditions of abuse and

neglect. The court found that petitioner participated in drug screens from June of 2019 to

September of 2019, during which time “he was positive for THC every time” and also tested

positive for oxycodone and opiates on a few occasions. According to the record, petitioner

admitted that he did not have a prescription for the oxycodone and opiates. Further, petitioner

ceased his compliance with drug screens following the earlier denial of his motion for an

improvement period. The circuit court further found that petitioner participated in only five

supervised visits with L.M. Petitioner was offered transportation to the visits but elected to drive

himself. Despite the offer of transportation, petitioner testified that he could not visit the child

more frequently “because it costs too much money for gas to get to the visits.” Finally, one of

petitioner’s service providers testified that petitioner had not fully acknowledged his abuse and

neglect of the children, having repeatedly denied any knowledge of the abuse D.H. perpetrated

despite evidence to the contrary.

Based on this evidence, the circuit court found that petitioner failed to demonstrate that he

was likely to fully participate in an improvement period and that petitioner’s “protective capacities

are so severely compromised and/or non-existent . . . as to render any . . . improvement period . . .

futile.” Further, the circuit court found that there was no reasonable likelihood that petitioner could

substantially correct the conditions of abuse and neglect given that he repeatedly or seriously

injured the children physically or emotionally and exposed them to sexual abuse. Because

petitioner demonstrated an inadequate capacity to solve the problems of abuse and neglect on his

own or with help, the court found that the children’s welfare and best interests required termination

of his parental and custodial rights. As such, the court denied petitioner’s request for a post-

dispositional improvement period and terminated his parental and custodial rights to the children. 4

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

3

Petitioner later filed a motion to reconsider the denial of his motion for an improvement

period, which the circuit court treated as a motion for a post-dispositional improvement period.

4

All the children’s parents’ parental and custodial rights were either terminated or

voluntarily relinquished below. H.B. has reached the age of majority. The permanency plan for the

remaining children is to be adopted in a single foster home.

3

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 first alleges that the circuit court violated his due process rights by

denying him the opportunity to be heard at adjudication. We find, however, that petitioner waived

this issue by failing to object below. In support of this assignment of error, petitioner cites to a

brief exchange with the circuit court as follows:

THE COURT: All right. Do you have any witnesses?

[PETITIONER’S COUNSEL]: I’m contemplating.

THE COURT: I will tell you that I think the State has pretty clearly met its burden.

I’ve got enough evidence. You can put your client on. I’m not sure what he’s going

to say that’s going to make me change my mind, though.

[PETITIONER’S COUNSEL]: That’s what I was going to do.

THE COURT: So I’m going to find that there is clear and convincing evidence of

abuse and neglect in this case against each of the three remaining [parents].

Petitioner argues that this limited exchange with the circuit court constituted a violation of

his right to be heard under West Virginia Code § 49-4-601(h), which provides, in relevant part,

that “[i]n any proceeding pursuant to this article, the party or parties having custodial or other

parental rights or responsibilities to the child shall be afforded a meaningful opportunity to be

heard, including the opportunity to testify and to present and cross-examine witnesses.” We find

that the record does not support petitioner’s assertion that the circuit court violated this right. In

fact, the circuit court specifically asked petitioner’s counsel if he desired to present any witnesses,

at which point counsel indicated that he was unsure whether he intended to do so. Further, while

it is true that the circuit court indicated that it believed the State had satisfied its burden of proof

for adjudication, it nonetheless told counsel that he could call petitioner as a witness. Instead of

affirmatively informing the court of a desire to present any witnesses, including petitioner, counsel

permitted the circuit court to proceed to a finding as to adjudication without raising any objection.

In support of his argument, petitioner relies heavily on our prior decision of In re T.S., 241

W. Va. 559, 827 S.E.2d 29 (2019). That case, however, is easily distinguishable from the instant

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matter because the circuit court in T.S. unequivocally denied the father the opportunity to present

witnesses or testify on his own behalf. Id. at 564, 827 S.E.2d at 34. Specifically, the circuit court

in that matter refused to permit the father to call a CASA representative as a witness and, when

the father’s counsel indicated that the father wished to testify, the court asked counsel what the

substance of that testimony would be and then converted counsel’s statement into a proffer. Id. at

562, 827 S.E.2d at 32. Here, the circuit court took no such affirmative actions to deny petitioner

his rights. On the contrary, the circuit court asked petitioner’s counsel if he wished to present any

witnesses, to which counsel responded with uncertainty. After the circuit court voiced its

understanding of the evidence as already presented, it informed counsel that he could call petitioner

as a witness, which counsel failed to do. As such, petitioner’s reliance on T.S. is misplaced.

Petitioner is correct that the applicable statutes governing abuse and neglect proceedings

“and the Due Process Clauses of the West Virginia and United States Constitutions prohibit a court

or other arm of the State from terminating the parental rights of a natural parent having legal

custody of his child, without notice and the opportunity for a meaningful hearing.” Syl. Pt. 2, in

part, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973). What petitioner fails to recognize,

however, is that he was afforded this meaningful opportunity to be heard, as the record shows that

he and his counsel participated in a lengthy adjudicatory hearing that resulted in over 250 pages of

transcript in the appendix record on appeal and reveals counsel’s extensive cross-examination of

several witnesses. That petitioner waived his right to call witnesses or otherwise testify on his own

behalf does not constitute a violation of his right to be heard, and, therefore, he is entitled to no

relief in this regard. 5

Petitioner next argues that the circuit court erred in finding that aggravated circumstances

existed in this matter, thereby absolving the DHHR of making reasonable efforts to preserve the

family. According to petitioner, the evidence established that D.H. subjected the children to sexual

abuse, not petitioner, and that a finding of aggravated circumstances against him was therefore

inappropriate. We find, however, that petitioner’s argument is unavailing.

According to West Virginia Code § 49-4-604(c)(7)(A),

5

In support of this assignment of error, petitioner further argues that because the circuit

court improperly dissuaded him from testifying, his silence at adjudication was also improperly

held against him. This Court has made it clear that circuit courts may make such considerations.

Syl. Pt. 2, W. Va. Dep’t of Health & Human Res. ex rel. Wright v. Doris S., 197 W. Va. 489, 475

S.E.2d 865 (1996) (“Because the purpose of an abuse and neglect proceeding is remedial, where

the parent or guardian fails to respond to probative evidence offered against him/her . . . , a lower

court may properly consider that individual’s silence as affirmative evidence of that individual’s

culpability.”). However, petitioner points to no instance where the circuit court used petitioner’s

silence as affirmative evidence of the allegations against him. Instead, petitioner argues that the

DHHR used petitioner’s silence against him in opposing his motions for improvement periods.

There is simply nothing that would preclude the DHHR from pointing to petitioner’s silence as its

motivation to oppose an improvement period. Further, because we find that the circuit court

offered petitioner the opportunity to testify, as set forth above, any argument predicated on the

allegation that petitioner was denied a meaningful opportunity to exercise this right must also fail.

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the department is not required to make reasonable efforts to preserve the family if

the court determines . . . [t]he parent has subjected the child, another child of the

parent or any other child residing in the same household or under the temporary or

permanent custody of the parent to aggravated circumstances which include, but

are not limited to, abandonment, torture, chronic abuse, and sexual abuse.

Petitioner argues that he was unaware of the abuse until “a week or two before DHHR took the

children.” After being informed of the sexual abuse, petitioner argues that “[n]o abuse/neglect was

alleged to have occurred” between the date L.M. notified him of the sexual abuse and the children’s

removal. What petitioner fails to acknowledge, however, is that his failure to take any steps to

protect L.M. from sexual abuse is egregious, given that the child made detailed disclosures that

D.H. was attempting to force her to perform fellatio on him. Petitioner interprets the facts

surrounding L.M.’s disclosure to him and his reaction as appropriate when, in actuality, petitioner

left the child in the home with her abuser without taking any action to protect her.

For purposes of analyzing petitioner’s argument, it is sufficient to accept his version of the

facts as true, despite the fact that conflicting evidence exists as to when, exactly, petitioner was

made aware of L.M.’s abuse and the extent of that abuse. Taken at face value, petitioner asserts

that “he viewed a text from his daughter, L.M., stating that [D.H.] demanded that she ‘suck his

dick’ and had placed cameras in bedrooms and bathrooms to watch the children change, shower,

etc.” By his own admission, petitioner went to the home “and found his daughter locked in her

room due to fear of D.H.” Petitioner then alleges that he searched the home for cameras, found

none, and failed to contact law enforcement “because he did not know what to do.” This constitutes

the entirety of petitioner’s response to the child’s disclosure. By his own admission, petitioner left

the child in the home with someone who was attempting to sexually abuse her. Throughout his

brief, petitioner attempts to minimize his conduct by asserting that this was “strictly a failure to

protect case” and that D.H. alone was responsible for the aggravated circumstances to which the

children were subjected. We find, however, that these attempts to absolve himself of responsibility

for subjecting the children to the potential for further abuse after being made aware that it was

ongoing are insufficient to entitle petitioner to relief. Because the record shows that petitioner

subjected L.M. to continued exposure to D.H., her sexual abuser, it is clear that a finding of

aggravated circumstances was appropriate. This is especially true when considering that the

Legislature plainly stated in West Virginia Code § 49-4-604(c)(7)(A) that aggravated

circumstances “are not limited to” the listed circumstances.

In support of this assignment of error, petitioner also argues that the circuit court did not

make a finding of aggravated circumstances until the dispositional hearing, while the DHHR

treated the case as one of aggravated circumstances throughout. Petitioner argues that the circuit

court’s finding was an attempt to “cover for both DHHR and the State on their failures” and that

it was made “despite no evidence in support of said circumstances.” Given the analysis above

detailing the ample evidence of aggravated circumstances, it is clear that petitioner cannot succeed

in his attempts to predicate other arguments upon a lack of sufficient evidence and, thus, is entitled

to no relief. Further, petitioner’s assertion that the DHHR treated his case as one of aggravated

circumstances throughout by failing to provide him with any services is belied by the record, which

shows that the DHHR offered petitioner supervised visitation, transportation for the visits, and

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drug screens. Petitioner refused transportation services, instead opting to drive himself to visits,

which he later claimed limited his ability to visit with L.M. because of the cost. In short, the DHHR

did provide petitioner limited services during the proceedings, despite the circuit court’s eventual

finding of aggravated circumstances that absolved the DHHR of making those efforts. As such,

petitioner cannot establish error.

Petitioner further relies on his assertion that a finding of aggravated circumstances was

inappropriate as a basis for his argument that the circuit court erred in finding that there was no

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

near future. Again, however, we note that the finding of aggravated circumstances was fully

supported by the record and, accordingly, petitioner is entitled to no relief on this basis. Further,

petitioner is incorrect that the evidence did not demonstrate that there was no reasonable likelihood

that he could correct the conditions of abuse and neglect. West Virginia Code § 49-4-604(d)

provides as follows:

As used in this section, “No reasonable likelihood that conditions of neglect or

abuse can be substantially corrected” means that, based upon the evidence before

the court, the abusing adult or adults have demonstrated an inadequate capacity to

solve the problems of abuse or neglect on their own or with help. Those conditions

exist in the following circumstances, which are not exclusive[.]

The statute then goes on, over several subsections, to set forth situations in which it can be assumed

that there is no reasonable likelihood the conditions of abuse and neglect can be substantially

corrected in the near future. On appeal, petitioner focuses only on his assertion that none of these

various situations apply to him, again ignoring that the Legislature has made this list non-

exclusive. 6

Here, the evidence clearly shows that petitioner demonstrated an inadequate capacity to

solve the problems on his own or with help. As the circuit court found, petitioner showed a failure

to fully acknowledge the conditions of abuse and neglect at issue by his repeated denials of

knowledge of the abuse D.H. perpetrated. The circuit court heard testimony that petitioner

admitted to observing egregious evidence of the abuse in the home, including having seen D.H.’s

grandson restrained inside an animal crate and witnessing L.M.’s fear of D.H. result in the child

urinating and defecating in containers in her locked room rather than exposing herself to his

continued sexual abuse. Petitioner recanted these disclosures and minimized his responsibility for

the children’s safety, which he continues to do on appeal by arguing that his decision to leave L.M.

in the home after he was made aware of her sexual abuse was appropriate because there is no

evidence that she was again sexually abused after he failed to take steps to protect her.

Based on this evidence, the circuit court specifically found that petitioner’s ability to

protect the children was nonexistent, which is in keeping with this Court’s holdings regarding the

6

Petitioner is correct that the circuit court cited to several of these subsections to support

its finding that there was no reasonable likelihood the conditions of abuse and neglect could be

substantially corrected in the near future. However, given the analysis undertaken above, it is

unnecessary to address the application of these subsections to the matter on appeal.

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impact that a failure to acknowledge issues of abuse and neglect has on the potential for

remediation. This Court has long 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 . . .

results in making the problem untreatable.” In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352,

363 (2013) (citation omitted). Given petitioner’s refusal to acknowledge the problem, it is clear

that there was sufficient evidence upon which to base a finding that there was no reasonable

likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near

future. It should also be noted that petitioner repeatedly tested positive for controlled substances

throughout the proceedings, further evidencing his refusal to put forth effort toward reunification.

While petitioner cites to the circuit court’s comments that it would not terminate his rights based

solely on drug screens showing THC, petitioner ignores the fact that he also tested positive for

other substances and that his continued abuse of THC was not ruled on in isolation but, instead,

was viewed in conjunction with his other failures below. Accordingly, petitioner is entitled to no

relief.

Finally, petitioner argues that both the circuit court and the guardian failed to consider

L.M.’s wishes to be returned to his care. The record, however, does not support this contention.

While it may be true that the guardian’s report omits petitioner by indicating L.M.’s desire to be

returned to the mother only, petitioner nonetheless cites to various points in the record when the

circuit court was presented with the child’s desire to be reunited with him. Given that petitioner

concedes that the guardian made this information known to the circuit court, we find, under the

specific circumstances of this matter, that it is inconsequential that the information was not

included in the guardian’s report.

Petitioner further argues that the circuit court erred in failing to hear from a licensed mental

health care provider as to the psychological impact termination of his parental and custodial rights

would have on L.M. In support of his argument, petitioner relies on In re Jessica G., 226 W. Va.

17, 697 S.E.2d 53 (2010), wherein this Court indicated that it was “particularly concerned with the

complete absence of any testimony at the dispositional hearing by a licensed mental health care

provider as to the possible psychological consequences to Jessica G. by terminating her father’s

parental rights.” Id. at 22, 697 S.E.2d at 58. Petitioner relies on this dictum to seemingly assert

that testimony from such a health care provider is necessary in all cases, which is simply not

accurate. In Jessica G., there was extensive evidence about the child’s strong emotional bond with

the father. Here, petitioner simply asserts that he had a strong emotional bond with the children

without any corroboration. Indeed, the two pages of the record to which petitioner cites in support

of this assertion do not contain any evidence of a strong or substantial bond. Instead, one page

indicates that L.M. said petitioner protected the children, while the other page indicates that a

supervised visitation provider did not “see[] any inappropriate behavior between [petitioner] and

the kids” and that petitioner “treats all of the kids, roughly, the same.” This is far from the evidence

in Jessica G. that resulted in the circuit court finding that there was a “strong bond between Jessica

G.” and the father therein. As such, we find that it was unnecessary for the court to hear evidence

from a licensed mental health care provider, especially considering the egregious nature of

petitioner’s conduct.

Having established that L.M.’s preference for being returned to petitioner was presented to

the circuit court, we find that there is nothing in the record to indicate that the court did not properly

8

consider this information. According to West Virginia Code § 49-4-604(c)(6)(C), “the court shall

give consideration to the wishes of a child [fourteen] years of age or older or otherwise of an age

of discretion as determined by the court regarding the permanent termination of parental rights.”

This statute does not, however, bind a circuit court to follow such wishes, especially in

circumstances such as those presented below where a parent has demonstrated a total inability to

protect the children. Based on the circuit court’s extensive findings regarding petitioner’s inability

to correct the conditions of abuse and neglect and that termination of his parental and custodial

rights was necessary for the children’s welfare, we find no error in this regard.

Further, as this Court has held,

“[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(d)] . . . 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). Accordingly, we find no error

in the circuit court’s termination of petitioner’s parental and custodial rights.

For the foregoing reasons, we find no error in the decision of the circuit court, and its

January 22, 2020, order is hereby affirmed.

Affirmed.

ISSUED: November 4, 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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