In re A.D. and K.D. ( 2018 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re A.D. and K.D. June 15, 2018
EDYTHE NASH GAISER, CLERK
No. 18-0175 (Monongalia County 17-JA-165 and 166) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father D.D., by counsel Maria A. Borror, appeals the Circuit Court of
Monongalia County’s January 30, 2018, order terminating his parental rights to A.D. and K.D.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”), DeAndra Burton, filed a response on behalf of the children in support of the circuit
court’s order. On appeal, petitioner argues that (1) the DHHR violated his due process rights by
filing an untimely petition; (2) the circuit court abused its discretion in denying his motion for an
improvement period; and (3) the circuit court erred in terminating his parental rights because it
was unnecessary to achieve permanency for the children.
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 December of 2017, the DHHR and the mother of the children jointly filed a petition
alleging that petitioner sexually abused the children. Specifically, the parties alleged that
petitioner was convicted of four counts of first-degree sexual assault and two counts of sexual
abuse by a parent with the children named as the victims. Further, the parties alleged that, as a
result of his convictions, petitioner was sentenced to fifty to two hundred years of incarceration.2
Later that month, the circuit court held an adjudicatory hearing at which petitioner
appeared by counsel but not in person. The circuit court took judicial notice of petitioner’s
convictions and found that they were sufficient to adjudicate petitioner as an abusing parent.
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 remained incarcerated throughout these proceedings.
1
The circuit court held a dispositional hearing in January of 2018; petitioner attended by
video conference and by counsel. During the hearing, the DHHR and the guardian supported
terminating petitioner’s parental rights and petitioner moved for a post-adjudicatory
improvement period. Petitioner and his counsel spoke in support of his motion for an
improvement period. Further, petitioner’s counsel argued that the delay in filing the petition until
after petitioner was convicted limited his defenses and resulted in irreparable harm. Ultimately,
the circuit court concluded that the delay in filing did not limit the DHHR’s pursuit of
adjudicatory and dispositional hearings. Further, the circuit court found that petitioner’s
conviction of sexual crimes against the minor children and the length of petitioner’s sentence
supported the termination of his parental rights. Accordingly, the circuit court terminated
petitioner’s parental rights in its January 30, 2018 order. 3 Petitioner now appeals that 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 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 DHHR violated his due process rights by failing to file a
timely petition. Petitioner asserts that Rule 5 of the Rules of Procedure for Child Abuse and
Neglect Proceedings demands that abuse and neglect proceedings not be delayed. He contends
that by filing an abuse and neglect petition after petitioner’s criminal trial, the DHHR delayed the
civil proceeding and prejudiced petitioner. Petitioner asserts that if the two proceedings were
pursued contemporaneously, his “legal objectives and strategies and the counsel of his civil
attorney would have provided adequate protection of his parental rights.” Finally, petitioner
alleges that he was denied his opportunity to admit his wrongdoing because the circuit court
adjudicated him as an abusing parent on the basis of his guilty verdicts. We find petitioner’s
argument unpersuasive.
Rule 5 of the Rules of Procedure for Child Abuse and Neglect Proceedings provides that
“[u]nder no circumstances shall a civil child abuse and neglect proceeding be delayed pending
3
The mother was a co-petitioner and her parental rights remain intact. According to the
parties, the permanency plan of the children is continuation in their mother’s custody.
2
the initiation, investigation, prosecution, or resolution of any other proceeding, including, but not
limited to, criminal proceedings.” This rule requires that there be no unnecessary delay in abuse
and neglect proceedings once initiated. The rule does not specify when an abuse and neglect
petition must begin or limit the timeframe in which petitions must be filed. Further, petitioner
fails to cite any authority applying Rule 5 in that manner. Finally, we note that petitioner ignores
West Virginia Code § 49-4-609, which clearly contemplates adjudication after a criminal
conviction, as follows:
[i]n any case where a person is convicted of an offense against a child described
in . . . articles eight-b or eight-d of [chapter sixty-one] and the person has
custodial, visitation or other parental rights to the child who is the victim of the
offense or to any child who resides in the same household as the victim, the court
shall, at the time of sentencing, find that the person is an abusing parent within the
meaning of this chapter as to the child victim, and may find that the person is an
abusing parent as to any child who resides in the same household as the victim,
and the court shall take further step as are required by this article.
Petitioner was convicted of two counts of sexual abuse by a parent, a crime contained in West
Virginia Code § 61-8D-5. Therefore, § 49-4-609 required the circuit court to adjudicate
petitioner as an abusing parent.4
Additionally, we find that petitioner was not prejudiced and was afforded adequate
protection of his parental rights. Petitioner was represented by counsel and permitted to advocate
on his own behalf during both the adjudicatory hearing and the dispositional hearing. On appeal,
petitioner asserts that he desired an opportunity to acknowledge his wrongdoing and address the
issues with his parenting. However, it is clear from the record that petitioner addressed the circuit
court during the dispositional hearing and, therefore, was given such an opportunity.
Accordingly, we find petitioner is entitled to no relief.
Second, petitioner argues that the circuit court abused its discretion by denying his
motion for a post-adjudicatory improvement period. Petitioner acknowledges that granting an
improvement period is within a circuit court’s discretion and that parents can render such an
improvement period an exercise in futility when they refuse to acknowledge the conditions of
abuse. Nevertheless, petitioner asserts that the circuit court abused its discretion by failing to
consider the potential benefit to both petitioner and the children if he were permitted an
improvement period. We find no error below.
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) (“It 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 [parent] to demonstrate ‘by clear and convincing evidence,
4
It is unclear from the record provided whether petitioner was adjudicated as an abusing
parent at the time of sentencing. However, any possible error is remedied by petitioner’s
adjudication in this proceeding.
3
that the [parent] 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, the circuit court has discretion to deny
an improvement period when no improvement is likely. In re Tonjia M., 212 W.Va. 443, 448,
573 S.E.2d 354, 359 (2002).
The circuit court did not abuse its discretion in denying petitioner’s motion for an
improvement period because petitioner failed to acknowledge the conditions of abuse. The
record provided on appeal is clear that petitioner never acknowledged the sexual abuse he
perpetrated on his children.
In 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 Charity H., 215 W.Va.
at 217, 599 S.E.2d at 640). Without an acknowledgement, the conditions of abuse and neglect are
untreatable. Petitioner was granted an opportunity to acknowledge his acts during the
dispositional hearing without the threat of any impending criminal prosecution; yet, petitioner
did not admit the acts of which he was convicted. Consistent with our prior holdings, petitioner’s
failure to acknowledge the abuse would render an improvement period an exercise in futility.
Therefore, we find the circuit court did not abuse its discretion in denying petitioner’s motion for
an improvement period.
Finally, petitioner argues that the circuit court erred in terminating his parental rights
because it was unnecessary to achieve permanency for the children. Petitioner acknowledges 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). Further, West Virginia Code §
49-4-604(5) provides that there is no reasonable likelihood that the conditions of neglect or abuse
can be substantially corrected when “[t]he abusing parent . . . [has] sexually abused or sexually
exploited the [children], and the degree of family stress and the potential for further abuse and
neglect are so great as to preclude the use of resources to . . . assist the abusing parent[.]” The
circuit court properly found that there was no reasonable likelihood that the conditions of abuse
and neglect could be substantially corrected due to petitioner’s sexual abuse of the children and
his incarceration. Accordingly, we find the circuit court did not err in terminating petitioner’s
parental rights.
4
For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 30, 2018, order is hereby affirmed.
Affirmed.
ISSUED: June 15, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
Justice Allen H. Loughry II, suspended and therefore not participating
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