In re G.W.-1, A.W. and V.W.

FILED

September 20, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

STATE OF WEST VIRGINIA OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re G.W.-1, I.W., A.W., and V.W.

No. 22-0090 (Gilmer County 21-JA-2, 21-JA-3, 21-JA-4, and 21-JA-5)

MEMORANDUM DECISION

Petitioner Father G.W.-2, by counsel Daniel K. Armstrong, appeals the Circuit Court of

Gilmer County’s December 22, 2021, order terminating his legal, parental, and custodial rights

to G.W.-1, I.W., A.W., and V.W. 1 The West Virginia Department of Health and Human

Resources (“DHHR”), by counsel Patrick Morrisey and Lee A. Niezgoda, filed a response in

support of the circuit court’s order. The guardian ad litem (“guardian”), Julia R. Callaghan, filed

a response on the children’s behalf in support of the circuit court’s order and a supplemental

appendix.

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 March of 2021, the DHHR filed a child abuse and neglect petition alleging that

petitioner physically abused the children and the mother took no action to protect them. Then-

eleven-year-old G.W.-1 reported that petitioner caused injuries to his legs, and a DHHR worker

observed the bruising. G.W.-1 stated that this occurred when petitioner responded to a noise in

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, as the oldest child and petitioner share

the same initials, we refer to them as G.W.-1 and G.W.-2, respectively, throughout this

memorandum decision. Moreover, we refer to the circuit court’s termination of petitioner’s

“legal, parental, and custodial rights” as the termination of parental rights for the ease of

discussion.

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his room and found G.W.-1 and then-five-year-old A.W. awake late at night. Petitioner, angry

that the children were not asleep, “stomped their legs in their bed with his work boots on,”

causing bruises and abrasions on their legs. G.W.-1 reported another instance when petitioner

“threw [him] up against the wall.” G.W.-1 expressed fear of disclosing more incidents because

he was afraid he would be hurt or grounded for the disclosures. He also expressed fear of

returning home.

The DHHR arranged forensic interviews for G.W.-1, A.W., and then-eight-year-old I.W.;

Then-two-year-old V.W. was not interviewed due to his young age. All three older children

disclosed that the parents advised them to talk about “the good things” and instructed them “not

to say bad words or talk about the scary stuff.” A.W. described witnessing domestic violence,

such as G.W.-1 being struck with a belt as discipline and petitioner “punch[ing]” the mother.

I.W. stated that the mother “told her not [to] tell stuff that goes on in the house,” such as “if mom

or [petitioner] slaps or kicks us or makes us bleed.” During the interview, I.W. also pointed to

“fading bruises” on her body, which she stated were caused by petitioner whipping her with a

belt. Finally, G.W.-1 stated that petitioner “smacks us in the mouth” and “punches us in the face

and chest.” The DHHR further alleged that G.W.-1 required medication for a seizure disorder

that was not administered properly by the parents. The DHHR also noted that it filed a petition

against the parents in 2016, alleging physical abuse. In those proceedings, the parties admitted to

the allegations, completed an improvement period, and the children were returned to their care.

The parents appeared before the circuit court in April of 2021 and indicated their desire

to waive their adjudicatory hearing and stipulate to certain allegations in the petition. Petitioner

admitted that he threw G.W.-1 against a wall on one occasion, that he told the children “to talk

about ‘the good things’” during their forensic interviews, and that he had been previously

adjudicated as an abusing parent for physically abusing the children. Notably, petitioner did not

admit to stomping on G.W.-1’s legs, to any domestic violence between himself and the mother,

or to a failure to properly administer G.W.-1’s medication. The circuit court accepted the

parents’ admissions and adjudicated them as abusing parents. Petitioner moved for a post-

adjudicatory improvement period, to which the DHHR and the guardian objected. The circuit

court held petitioner’s motion in abeyance. In August of 2021, the DHHR filed a family case

plan, recommending the termination of petitioner’s parental rights to the children.

In September of 2021, the circuit court held a dispositional hearing. The court heard

testimony from Barbara Nelson, a licensed psychologist who performed a parental fitness

evaluation of petitioner shortly after the adjudicatory hearing. Ms. Nelson testified that there was

a “complete lack of responsibility on the part of both parents.” In particular, petitioner denied

that he threw G.W.-1 against the wall, the same allegation that he admitted to at the adjudicatory

hearing. During the evaluation, petitioner denied any physical violence against the children,

stating, “I don’t hit my kids.” Petitioner also denied that he “ever la[id] a hand” on the mother.

When Ms. Nelson questioned petitioner as to the 2016 allegations that he struck G.W.-1 in the

face, he denied that he hit G.W.-1. Petitioner asserted that he admitted to the allegations in the

instant and prior petitions based on the advice of counsel but that he was not truthful when

admitting to these allegations. Ms. Nelson noted that petitioner received services in the prior

proceedings. However, she testified that, because the allegations in the instant case were “the

same or similar” to the allegations in the prior proceeding in 2016, for which petitioner received

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remedial services, there was no evidence that petitioner benefited from prior services and no

evidence that he corrected his behaviors. Ms. Nelson further explained that based on petitioner’s

pattern of significant physical violence toward the children and the mother, she determined that

he had a “well established personality trait system that [is] violent and volatile.” Ms. Nelson

concluded that based on these factors, she gave petitioner an “extremely poor prognosis” for

parental improvement.

The DHHR then presented testimony from Ms. Jena Cory, a licensed psychologist who

performed psychological evaluations of all four children. Ms. Cory testified that G.W.-1, I.W.,

and A.W. described physical abuse in the home by petitioner, including abuse of the mother. A

second therapist, who provided therapy to the children on an interim basis, testified that the

children made similar disclosures to her. Both therapists that worked with the children

recommended that the children have no visitation with the parents.

The DHHR presented the testimony of petitioner’s case worker, who recommended

termination of petitioner’s parental rights. She explained that the recommendation was based on

the similarity in allegations between the prior and instant cases. The worker testified that,

because the conditions of abuse and neglect persisted after the provision of services in the earlier

case, it was clear that the parents had not benefited from the prior receipt of services. The worker

further stated that there were not additional services the DHHR could offer the parents because

they failed to take any responsibility for the abuse and neglect of the children.

Petitioner called Ms. Kathy Wise, a privately retained therapist who provided therapy to

both parents. She admitted she was not a licensed psychologist, and she testified as a lay witness

because she did not qualify as an expert witness. Ms. Wise opined that the DHHR failed to

provide the parents with adequate rehabilitative services in the 2016 proceedings. However, Ms.

Wise acknowledged that this opinion was based solely upon the interview of the parents since

she did not speak with any of the individuals who provided services to the parents. Ms. Wise did

not identify any specific problems with the services rendered. The circuit court noted that the

parents completed parenting and adult life skills classes, anger management counseling, and

other programs, which were satisfactory to the judge presiding over the 2016 case. Ms. Wise

further opined that the DHHR’s current provision of services was not satisfactory, but, again, did

not state with any particularity the alleged deficiency in the services. The court inquired of Ms.

Wise and found her to be “evasive [and] non-responsive” to the court’s questioning.

Ms. Wise further testified that the parents “did not want to admit to the allegations in

both the 2016 and 2021 abuse and neglect cases,” but they did so upon the prompting of their

counsel. Ms. Wise testified that she did not believe petitioner physically abused the children and

that she believed petitioner felt pressured into making admissions. The court found that the

parents “indicated that they understood the allegations in both the 2016 and 2021 petitions, that

they understood their right to a hearing and representation by counsel, and they freely,

knowingly, voluntarily, and intelligently. . . admitted the allegations in the petitions” and that’

Ms. Wise’s testimony was contrary to those representations. Ultimately, the court found that Ms.

Wise was “less than credible and that the weight to be given [to] her testimony should be

minimal at best.”

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Finally, petitioner testified and reaffirmed his admissions in both these proceedings and

the prior proceedings. He stated that he made the admissions voluntarily without threat or

coercion. Petitioner testified that he was participating in therapy and random drug screening and

that he was willing to participate in other services at the DHHR’s request. Petitioner agreed that

he received services to correct his physical abuse of the children in the prior case and that he did

not benefit from those services, as evidenced by his continued abuse of the children. When asked

why he should be given another improvement period to correct the same conditions, he

apologized and stated he wanted to apologize to his children but did not answer the question.

Ultimately, the circuit court found that petitioner’s testimony lacked credibility.

The circuit court considered the evidence and found that although petitioner participated

in services, his contradictory statements regarding his admissions indicated that he had not taken

responsibility for his actions. The court found that petitioner was previously found to have

physically abused the children in 2016 and that the services provided to him were not effective,

as evidenced by the continuation of abuse. The court found that the children had reported several

incidents of physical abuse, as well as coaching and coercion by the parents “to keep those

incidents concealed.” The circuit court reasoned that petitioner did not demonstrate that he was

likely to fully participate in an improvement period. It further found that “there is no evidence

that additional services would be effective, in part due to [petitioner’s] lack of acceptance of

responsibility.” The court concluded there was no reasonable likelihood that the conditions of

neglect and abuse could be substantially corrected in the near future and that termination of

petitioner’s parental rights was in the children’s best interest. Accordingly, the circuit court

terminated petitioner’s parental rights by its December 22, 2021, order. Petitioner now appeals

that order. 2

The Court has previously held:

“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).

2

The mother’s parental rights were also terminated below. According to the parties, the

permanency plan for the children is adoption by their current foster parents.

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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 denying his motion for a post-

adjudicatory improvement period. He asserts that he was participating in services, such as

random drug screening and anger management therapy, and that his participation demonstrated

that he was likely to fully participate in an improvement period. He further argues that he

admitted to the allegations in the petition and reaffirmed those admissions at the dispositional

hearing, which proves that he fully accepted responsibility for his actions. We find petitioner is

entitled to no relief.

In order to be granted a post-adjudicatory improvement period under West Virginia Code

§ 49-4-610(2)(B), the parent must first “demonstrate[], by clear and convincing evidence, that

the [parent] is likely to fully participate in the improvement period and the court further makes a

finding, on the record, of the terms of the improvement period.” “West Virginia law allows the

circuit court discretion in deciding whether to grant a parent an improvement period.” In re

M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015); see also In re Tonjia M., 212 W. Va.

443, 448, 573 S.E.2d 354, 359 (2002) (holding that a circuit court has the discretion to deny a

motion for an improvement period when no improvement is likely). Critically,

[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).

Here, we are not persuaded by petitioner’s insistence that he fully accepted responsibility

for the conditions of neglect and abuse. Ms. Nelson testified that, during his clinical interview,

petitioner consistently denied all abuse. She further testified that petitioner asserted he only made

admissions during the proceedings upon prompting of his attorneys. This sentiment was echoed

by Ms. Wise, who also testified that petitioner did not want to admit to abusing the children but

did so because he was coerced by his attorneys. The circuit court considered this evidence in

relation to petitioner’s testimony, which it concluded was “less than credible,” and ultimately

determined that petitioner had not accepted responsibility for the abuse. See also Michael D.C. v.

Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997) (“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.”). Accordingly, we find no error in the circuit court’s determination that

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petitioner did not accept responsibility for the conditions of abuse and neglect and find no error

in its denial of his motion for an improvement period on that basis. 3

Further, we find no error in the circuit court’s termination of petitioner’s parental rights

to the children. Pursuant to West Virginia Code § 49-4-604(c)(6), a circuit court may terminate a

parent’s parental rights upon finding 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(d) provides that there is no

reasonable likelihood that the conditions of neglect or abuse can be substantially corrected when

the “abusing adult or adults have demonstrated an inadequate capacity to solve the problems of

abuse or neglect on their own or with help.”

Petitioner’s primary argument against the court’s decision is his acknowledgement of the

abuse and his participation in services. Here, however, the evidence clearly showed that there

was no reasonable likelihood that petitioner could correct the conditions of neglect and abuse.

Notwithstanding the circuit court’s finding that petitioner failed to acknowledge the conditions,

the court also found that petitioner previously received services in the prior 2016 proceeding.

Petitioner himself admitted that he received services from which he obtained no benefit. The

evidence showed that petitioner abused his children in 2016, then, despite the provision of

services, the children disclosed that petitioner continued to physically abuse them and that

petitioner encouraged them to conceal the abuse during these proceedings. This evidence is

sufficient to sustain the findings necessary to terminate petitioner’s parental rights, and we find

no abuse of discretion in the circuit court’s ultimate decision.

Petitioner also argues that the circuit court erred in accepting the children’s case plans

prepared by the DHHR because the case plans were incomplete. Petitioner asserts that by

submitting incomplete case plans the DHHR failed to provide petitioner with reasonable goals

necessary to achieve reunification.

We have previously held that

“[w]here it appears from the record that the process established by the

Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes

for the disposition of cases involving children [alleged] to be abused or neglected

has been substantially disregarded or frustrated, the resulting order . . . will be

vacated and the case remanded for compliance with that process and entry of an

3

Additionally, petitioner spends a considerable portion of his argument arguing against

the credibility of Ms. Nelson and asserting the circuit court should have given her testimony “the

weight it deserved.” However, “[a]n appellate court may not decide the credibility of witnesses

or weigh evidence as that is the exclusive function and task of the trier of fact.” State v. Guthrie,

194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995). We will not disturb the circuit court’s

determinations in this regard.

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appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W. Va. 621,

558 S.E.2d 620 (2001).

Syl. Pt. 3, In re Emily G., 224 W. Va. 390, 686 S.E.2d 41 (2009).

Regarding case plans, we have stated that “[t]he purpose of the family case plan as set out

in [West Virginia Code § 49-4-408], is to clearly set forth an organized, realistic method of

identifying family problems and the logical steps to be used in resolving or lessening these

problems.” Syl. Pt. 5, State ex rel. W.Va. Dep’t of Hum. Servs. v. Cheryl M., 177 W. Va. 688,

356 S.E.2d 181 (1987). Further, “[t]he purpose of the child’s case plan is the same as the family

case plan, except that the focus of the child’s case plan is on the child rather than the family

unit.” Syl. Pt. 2, in part, In re Mark M., 201 W. Va. 265, 496 S.E.2d 215 (1997) (internal citation

omitted). West Virginia Code § 49-4-604(a) provides that “[i]f reunification is not the

permanency plan for the child, the plan must state why reunification is not appropriate and detail

the alternative, concurrent permanent placement plans for the child to include approximate

timelines for when the placement is expected to become a permanent placement.”

Here, the DHHR provided a case plan that informed petitioner that due to his failure to

acknowledge his conditions of abuse and neglect “there [was] little to no opportunity for [him] to

improve as [a] parent[].” The DHHR’s reasoning for that recommendation is clear from the

content of the case plan, and it also provides an alternative to reunification, which was

termination of petitioner’s parental rights and adoption of the children. While petitioner argues

that the DHHR did not incorporate information from the children’s forensic evaluations into the

case plans, petitioner was provided those evaluations and was adequately notified. Upon our

review, the DHHR’s child case plans are not so insufficient as to require this Court to vacate and

remand the proceedings for entry of new case plans.

Finally, petitioner argues that the DHHR failed to provide relevant discovery, specifically

documents from the 2016 proceedings that were provided to expert witnesses in this case.

Critically, Ms. Nelson’s forensic evaluation indicates that it was completed in May of 2021. The

record shows that petitioner and counsel had sufficient opportunity to review the report, as

counsel requested a corrected forensic evaluation and posed a series of questions to the

evaluator, and the evaluator’s corrected evaluation was filed on August 4, 2021, over one month

before the circuit court’s final dispositional hearing was held on September 22, 2021. The

evaluation lists several documents that the evaluator reviewed from the 2016 proceedings, such

as the DHHR’s family functioning assessment, the child abuse and neglect petition, and three

circuit court orders. However, despite being aware that these documents had been considered by

the evaluator, there is no evidence in the record that petitioner requested that these documents be

produced. See W. Va. R. of Proc. For Child Abuse and Neglect Proc., R. 11 (providing for

compulsion of discovery). Moreover, petitioner did not object to the use of these documents or

their incorporation into these proceedings. “‘Our general rule is that nonjurisdictional questions .

. . raised for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co.,

Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999).” Noble v. W. Va. Dep’t of

Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009). Finally, petitioner was a

party to the 2016 proceedings and provides no explanation why, when fully aware of the

relevance of these documents, he could not obtain the records himself. In sum, because petitioner

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was provided adequate notice of the documents to be considered and he failed to request or

compel the production of those documents, we find no error in the proceedings below.

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

December 22, 2021, order is hereby affirmed.

Affirmed.

ISSUED: September 20, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice C. Haley Bunn

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