In re D.B. and K.T.

FILED

November 8, 2021

STATE OF WEST VIRGINIA

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

SUPREME COURT OF APPEALS OF WEST VIRGINIA

In re D.B. and K.T.

No. 21-0184 (Kanawha County 19-JA-537 and 19-JA-538)

MEMORANDUM DECISION

Petitioner Mother A.T., by counsel Peggy L. Collins, appeals the Circuit Court of Kanawha

County’s February 9, 2021, order terminating her parental rights to D.B. and K.T. 1 The West

Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey

and S.L. Evans, filed a response in support of the circuit court’s order. The guardian ad litem,

Christopher C. McClung, 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 (1) adjudicating her as an abusing

parent, (2) withholding additional disclosures made by K.T., (3) denying her request for a post-

adjudicatory improvement period, and (4) terminating her 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.

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

parents failed to protect the children from sexual abuse. The DHHR alleged that eight-year-old

K.T. disclosed that her grandfather—who resided in the parents’ home with her—had “touched

her breasts, butt, and genitals on numerous occasions.” K.T. also disclosed that the grandfather

would engage in these acts while petitioner was sitting next to them. According to the petition,

K.T. disclosed that she told her parents about the sexual abuse but the parents failed to protect her.

The DHHR alleged that the stepfather would frequently become angry at K.T. when she attempted

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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to inform him about the sexual abuse. According to the petition, K.T. was also told to sleep far

away from the parents on a camping trip. K.T. disclosed that she became scared on that occasion

and attempted to go into the parents’ tent, but they told her to go back to her tent so she would

learn to live on her own. The DHHR further alleged that the parents failed to provide the children

with the necessary food, clothing, supervision, and housing.

The circuit court held a series of adjudicatory hearings beginning in November of 2019. At

one of the hearings, a Child Protective Services (“CPS”) manager testified as to a previous child

abuse and neglect case involving petitioner’s nephew, who is not at issue on appeal, and K.T.’s

grandfather. Specifically, the case manager testified that the grandfather relinquished any and all

custodial rights to the child during that case. During the prior proceedings, the DHHR presented

evidence that the grandfather sexually abused the child, based upon statements and physical

evidence that had come to light, including a Child Advocacy Center (“CAC”) interview with the

child. The case manager testified that petitioner was aware of the allegations and should have been

concerned for the safety of K.T. The case manager testified she had approximately eight to ten

conversations with petitioner about the grandfather’s sexual abuse of the nephew. The case

manager further testified that the grandfather and the nephew were living in the parents’ home at

the time of the investigation, making it difficult to believe that the parents were unaware of the

proceedings upon the sudden removal of the child from their home. Next, petitioner testified that

she did not “believe that anything happened” in regard to the sexual abuse allegations involving

the grandfather and her nephew. The court then continued the hearing to allow the DHHR to

present further evidence.

In September of 2019, the DHHR filed an amended petition, adding more allegations

against the parents. According to the amended petition, petitioner tested positive for

methamphetamine upon the birth of D.B. in August of 2017. The DHHR also alleged that the

father tested positive for marijuana following testing at the preliminary hearing. The amended

petition set forth that K.T. disclosed additional details about her sexual abuse. The DHHR alleged

that K.T. informed the stepfather about the grandfather’s sexual abuse; that he did nothing to

protect her; and that, after she told him, he told her to go outside and play. According to the

amended petition, after learning about the sexual abuse, the parents still allowed K.T. and the

grandfather to sleep together. The DHHR alleged that the parents had substance abuse issues that

prevented them from being appropriate parents and that the parents had failed to protect the

children from sexual abuse.

The circuit court held a continued adjudicatory hearing in February of 2020 wherein a

service provider testified that the parents tested positive for methamphetamine on multiple screens

over the last few months. The service provider also testified that she was concerned that neither

parent had entered into any treatment program, as encouraged by the court, and that they were still

living with the children’s grandfather. The circuit court held a series of additional hearings over

the next few months, during which petitioner continued to test positive for controlled substances.

Finally, the parents testified at the continued adjudicatory hearing in September of 2020.

The court noted that the parents offered “hesitant admissions” that they believed that the

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grandfather sexually abused K.T. The court also disclosed a communication from the children’s

foster mother, which revealed that K.T. had divulged that the grandfather had shown her

pornographic videos on his phone. Petitioner objected to the new evidence from the foster parents,

and the circuit court did not consider it at adjudication. After considering the evidence and

testimony from the adjudicatory hearings, the court found that the parents should have been more

aware of the environment that the children were in and failed to protect K.T. from sexual abuse

after gaining knowledge of the abuse. The court also found that the parents exposed the children

to substance abuse and failed to provide a stable home for the children. As a result, the circuit court

adjudicated the parents as abusing and neglecting because they failed to protect and properly

supervise the children. Petitioner moved for a post-adjudicatory improvement period, which the

court held in abeyance.

After a continuance, the circuit court held a dispositional hearing in January of 2021,

wherein a service provider testified that the parents had been inconsistent in communication and

still lacked stable housing. The service provider also testified that the parents tested positive for

methamphetamine and marijuana on multiple screens while missing other screens altogether.

At the conclusion of the hearing, the circuit court denied petitioner’s motion for an

improvement period. In light of the evidence presented at the dispositional hearing, the circuit

court found that the parents had more than a year to correct the problems of abuse and neglect but

failed to do so. The circuit court also found that the parents had not followed through with

rehabilitative services, as evidenced by the continuation of conditions that threatened the health

and welfare of the children. Based upon this evidence, the circuit court found 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 best interests of the children to terminate petitioner’s parental

rights. 2 The circuit court entered an order reflecting its decision on February 9, 2021. Petitioner

appeals from this order.

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

2

D.B.’s father’s parental rights were terminated during the proceedings below. The father

of K.T. is deceased. According to the parties, the permanency plan for the children is adoption by

their foster family.

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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).

First, petitioner argues that the circuit court erred in adjudicating her as an abusing parent.

Petitioner argues that the circuit court made several erroneous findings about her knowledge of the

grandfather’s sexual abuse of K.T. Specifically, she argues that it was error to rely on K.T.’s

disclosures during her CAC interview or DHHR witness testimony to prove that she failed to

protect the child from sexual abuse when petitioner testified to the contrary. Therefore, it was error

for the circuit court to find that her failure or inability to supervise the children constituted abuse

or neglect. We disagree.

We have previously held as follows:

At the conclusion of the adjudicatory hearing, the 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 . . . . The findings must be based upon

conditions existing at the time of the filing of the petition and proven by clear and

convincing evidence.

In re F.S., 233 W. Va. 538, 544, 759 S.E.2d 769, 775 (2014). This Court has explained that “‘clear

and convincing’ is the measure or degree of proof that will produce in the mind of the factfinder a

firm belief or conviction as to the allegations sought to be established.” Id. at 546, 759 S.E.2d at

777 (citation omitted). However, “the clear and convincing standard is ‘intermediate, being more

than a mere preponderance, but not to the extent of such certainty as is required beyond a

reasonable doubt as in criminal cases.’” Id. (citation omitted). Further, West Virginia Code § 49-

1-201 defines “abused child” as

[a] child whose health or welfare is being harmed or threatened by . . . [a]

parent . . . who knowingly or intentionally inflicts, attempts to inflict, or knowingly

allows another person to inflict, physical injury or mental or emotional injury, upon

the child or another child in the home.

(Emphasis added).

Having reviewed the record, we find that sufficient evidence existed to adjudicate

petitioner as an abusing parent. On appeal, petitioner’s arguments in support of this assignment of

error are all predicated on her assertions that the circuit court erroneously weighed the evidence in

question. However, the rulings to which petitioner cites all come down to the issue of credibility,

and as this Court has long 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).

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First, petitioner attacks K.T.’s disclosures of sexual abuse as “vague” and “nonspecific.”

Petitioner acknowledges that the DHHR presented uncontested evidence that the grandfather

touched K.T. However, petitioner argues that the most specific statement the child made to her

was that she was uncomfortable. Further, petitioner contends that she never witnessed anything

sexual between K.T. and the grandfather. However, the record shows that the circuit court

reviewed this testimony, as well as the child’s CAC interview, and found the child’s allegations to

be credible. Further, the court found that after learning about the sexual abuse by the grandfather,

petitioner still allowed K.T. and the grandfather to sleep together. A CPS case manager also

testified that she repeatedly warned the parents about concerns that the grandfather could sexually

abuse the children. In light of the above evidence, the circuit court properly found that K.T. was

sexually abused in the home and that petitioner was aware of said abuse but ignored it.

Accordingly, we find no error in the circuit court’s adjudication of petitioner.

Next, petitioner argues that the circuit court erred in denying her a post-adjudicatory

improvement period because when “disposition occurred, [she] had admitted her problems, sought

and completed a substance abuse program, and was living in an appropriate house.” Petitioner

argues that these efforts demonstrate that she could have substantially corrected the conditions of

abuse and neglect if granted an improvement period. We find petitioner’s arguments unavailing.

This Court has held that an individual “charged with abuse and/or neglect is not

unconditionally entitled to an improvement period.” In re Emily, 208 W. Va. 325, 336, 540 S.E.2d

542, 553 (2000). West Virginia Code § 49-4-610(2)(B) provides that the circuit court may grant a

post-adjudicatory improvement period when the parent “demonstrates, by clear and convincing

evidence, that the[y are] likely to fully participate in the improvement period.” “This Court has

explained that ‘an improvement period in the context of abuse and neglect proceedings is viewed

as an opportunity for the . . . parent to modify his/her behavior so as to correct the conditions of

abuse and/or neglect with which he/she has been charged.’” In re Kaitlyn P., 225 W. Va. 123, 126,

690 S.E.2d 131, 134 (2010) (citation omitted). However, the circuit court has discretion to deny

an improvement period when no improvement is likely. See In re Tonjia M., 212 W. Va. 443, 448,

573 S.E.2d 354, 359 (2002). Further, 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) (citation omitted).

Contrary to petitioner’s argument, we see no error in the circuit court’s determination that

petitioner was not likely to fully participate in an improvement period. The circuit court found that

petitioner failed to acknowledge or take any responsibility for the conditions that led to the abuse

and neglect of the children. Only near the end of the proceedings did the circuit court find that the

parents offered “hesitant admissions” that the grandfather abused K.T. While petitioner argues that

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she proved she was likely to participate in an improvement period by participating in a substance

abuse treatment program, visiting with the children, and obtaining appropriate housing, these

actions alone could not have been successful without petitioner’s recognition of her abuse and

neglect of K.T. and D.B. Further, a DHHR caseworker testified to petitioner’s lack of candor and

acknowledgement of wrongdoing. As such, there is ample evidence that petitioner’s repeated

failures to acknowledge the conditions of abuse and neglect resulted in her inability to establish

that she was likely to fully participate in an improvement period. Given this evidence, we find no

error in the circuit court’s decision to deny petitioner a post-adjudicatory improvement period.

Next, petitioner argues that the circuit court erred in withholding additional disclosures

made by K.T. to the foster parents for months during the adjudication phase of the proceedings.

Petitioner contends that these disclosures were more detailed and substantive than disclosures that

K.T. made in her CAC interview concerning sexual abuse. Petitioner also argues that K.T.’s

disclosures of abuse during her CAC interview were contested and that petitioner could not have

known that the grandfather was sexually abusing the child. As such, petitioner asserts that the

withholding of the additional disclosures from the foster parents was prejudicial to her and the

presentation of her case contesting adjudication. We find petitioner’s arguments without merit.

First, petitioner notes that the circuit court revealed at a hearing in September of 2020 that

K.T.’s foster parents sent an email in June of 2020 to a CPS worker containing further and explicit

disclosures by K.T. about the grandfather’s abuse. Petitioner contends that the CPS worker shared

these additional disclosures only with the guardian and the court, and the court subsequently

withheld this evidence from June of 2020 until a hearing in September of 2020. However,

petitioner objected to the circuit court’s consideration of the additional disclosures and, in

response, the circuit court agreed not to consider them for adjudication, thereby granting petitioner

the relief she sought. In her brief on appeal, petitioner acknowledges that the circuit court stated

that it did not take the additional evidence into account in reaching adjudication. Accordingly, we

find that petitioner suffered no prejudice with regard to the additional disclosures because the

circuit court did not consider them in determining adjudication.

In support of this assignment of error, petitioner also argues that the circuit court erred in

relying on K.T.’s disclosures from her CAC interview. Specifically, petitioner argues that the

grandfather touching the child’s bottom, breasts, and legs do not qualify as “sexual contact” under

West Virginia Code § 61-8B-1(6). 3 Petitioner argues that there was no evidence that the

grandfather’s acts of touching were done for his sexual gratification. However, petitioner

3

West Virginia Code § 61-8B-1(6) provides:

“[s]exual contact” means any intentional touching, either directly or through

clothing, of the breasts, buttocks, anus or any part of the sex organs of another

person, . . . where the victim is not married to the actor and the touching is done for

the purpose of gratifying the sexual desire of either party.

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acknowledges that there was testimony regarding a previous abuse and neglect proceeding

involving the grandfather and her nephew with allegations of sexual abuse that resulted in the

grandfather relinquishing custody of the child. Indeed, the record reflects that petitioner was

repeatedly warned by the DHHR about possible sexual abuse of the children. A CPS worker

testified that she spoke with petitioner on eight to ten occasions. Accordingly, we find that there

was substantial evidence to support petitioner’s adjudication as an abusing and neglecting parent.

Finally, petitioner takes issue with the timeframe from adjudication to termination, arguing

that she should have been given additional time and an opportunity to demonstrate that she could

correct the conditions of abuse and neglect. However, we have previously held that “[c]ourts are

not required to exhaust every speculative possibility of parental improvement . . . where it appears

that the welfare of the child will be seriously threatened.” Cecil T., 228 W. Va. at 91, 717 S.E.2d

at 875, syl. pt. 4, in part (citation omitted). Further, we have 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(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). As such, we find no error in the

termination of petitioner’s parental rights.

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

February 9, 2021, order is hereby affirmed.

Affirmed.

ISSUED: November 8, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton

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