In re A.G., D.W., L.W., and D.W. ( 2022 )

FILED
February 1, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re A.G., D.W-1, L.W., and D.W.-2
No. 21-0553 (Kanawha County 20-JA-522, 20-JA-523, 20-JA-524, and 20-JA-525)
MEMORANDUM DECISION
Petitioner Father D.G., by counsel Edward L. Bullman, appeals the Circuit Court of
Kanawha County’s June 14, 2021, order terminating his parental rights to A.G., D.W-1, L.W., and
D.W.-2. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Patrick Morrisey and James Wegman, filed a response in support of the circuit court’s order. The
guardian ad litem, Elizabeth G. Kavitz, 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 failing to reinstate
his post-adjudicatory improvement period, denying his motion for a post-dispositional
improvement period, and terminating his 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 October of 2020, the DHHR filed an abuse and neglect petition alleging that petitioner
and the mother engaged in domestic violence in the children’s presence. According to a DHHR
worker, the mother showed bruising allegedly caused by petitioner, and the mother stated that
petitioner was controlling and aggressive. Then-five-year-old L.W. and then-six-year-old D.W.-2
disclosed that petitioner “grabs and hurts mommy.” The DHHR also alleged that the mother abused
methamphetamine.
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, because two of the children share the same initials,
we will refer to them as D.W.-1 and D.W.-2, respectively, throughout this memorandum decision.
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The same month, the circuit court held a contested preliminary hearing. The DHHR worker
testified that she responded to a referral concerning a domestic violence dispute between petitioner
and the mother, and that when she interviewed the mother at the domestic violence shelter, the
mother showed her injuries she stated were caused by petitioner. The mother reported that
petitioner was aggressive with her when she tried to leave and that petitioner “controlled her and
has been physically, verbally violent with her.” The worker stated that the two oldest children
identified petitioner as the aggressor and stated that he hits, slaps, and punches the mother. Further,
the worker stated that the DHHR opened a prior investigation of the couple in April of 2020 due
to domestic violence. She explained that petitioner was receiving services to address his domestic
violence problem when the incident occurred that resulted in the petition’s filing. The worker
described her interview with petitioner, stating that he told her he “never put his hands on [the
mother]” and that the mother was the aggressor. Petitioner also stated that he believed the mother
was abusing drugs.
Petitioner then testified that physical violence only occurred when the mother hit him and
that he regularly called the police. He stated that he did not argue with the mother in the children’s
presence and did not understand why the oldest children said such things to the worker. Petitioner
generally denied domestic violence, physical violence, and shouting but admitted that he did not
allow the mother “to talk[] to men” and thus did not allow her a cellphone. Further, petitioner
admitted violating a recent domestic violence protective order by sending messages to the mother
via his adult child. At the conclusion of petitioner’s testimony, the circuit court ratified the
children’s removal from petitioner’s home.
In December of 2020, the circuit court held an adjudicatory hearing, during which
petitioner stipulated that he exposed the children to domestic violence. The court adjudicated him
as an abusing parent and ordered petitioner to participate in parenting and adult life skills classes,
domestic violence education, and anger management classes.
The circuit court held a hearing upon petitioner’s motion for a post-adjudicatory
improvement period in February of 2021. The court “unenthusiastically” granted him a post-
adjudicatory improvement period, stating “you better be participating in any and all services
perfectly, particularly the services as they relate to your domestic violence training. Because if you
don’t, I will terminate the improvement period.” Thereafter, the results of petitioner’s
psychological evaluation were returned and showed that petitioner denied ever hitting the mother
and continued to claim that she was always the aggressor. The evaluator concluded that because
petitioner minimized his involvement in the domestic violence there was an increased risk of
continued violence in the home. The evaluator also noted that petitioner did not know the ages or
birthdays of the children. Due to petitioner’s history of domestic violence incidents with the mother
and his minimization of the same, the evaluator concluded that petitioner had a “highly guarded”
prognosis for achieving minimally adequate parenting.
In April of 2021, the parties appeared for a review hearing, during which the DHHR and
the guardian moved to terminate petitioner’s improvement period. The DHHR indicated that
petitioner told his therapist that he was participating in counseling only because he was ordered to
do so and denied any anger issues. The court also received a Court Appointed Special Advocate
report recommending that petitioner’s visitations cease due to his denials of anger management
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problems and domestic violence issues, and general lack of meaningful compliance in services.
The court also noted the results of petitioner’s psychological evaluation, which showed petitioner’s
minimization of his involvement in domestic violence. The court stated that petitioner failed to
“even admit that he engaged in physical aggression and interactions.” At that time, the circuit court
found that petitioner was not in substantial compliance with his improvement period, ordered that
services cease, and set the matter for disposition.
In June of 2021, the guardian filed a report in which she recommended the termination of
petitioner’s parental rights. According to the guardian, the children had made repeated and
consistent disclosures of domestic violence in the home, and one child said that petitioner was
“very mean” to him and his siblings. The guardian noted that petitioner consistently minimized
the domestic abuse in the home and appeared to fail to acknowledge any responsibility at the recent
multidisciplinary team meeting. Candidly, the guardian explained that none of the children wished
to have contact with petitioner. Based on these facts, the guardian recommended termination of
petitioner’s parental rights.
On June 4, 2021, the court held a dispositional hearing. The DHHR presented evidence
that petitioner did not meaningfully participate in services as he continued to deny his involvement
in the couple’s domestic violence. Petitioner admitted that some of his actions with the mother
constituted abusive behavior, such as his withholding the car keys and cellphone. However,
petitioner continued to deny perpetrating physical domestic violence against the mother, admitting
to only arguing with the mother late at night. He stated that the children had lied about witnessing
him hurt the mother, but they were truthful when they reported seeing the mother hit petitioner.
Concerning the mother’s drug use, petitioner stated that methamphetamine was not a “bad” thing
and only keeps users “up all night.” According to petitioner, parents abusing methamphetamine
could adequately parent children.
At the close of evidence, petitioner moved that his post-adjudicatory improvement period
be reinstated, or in the alternative, that he be granted a post-dispositional improvement period. The
court noted that petitioner was granted an improvement period that was terminated for lack of
meaningful participation and petitioner’s failure to take any responsibility. Regarding petitioner’s
testimony, the court stated that it had never heard “more incredible testimony from anybody on
the stand.” The court found petitioner’s testimony was “self-serving,” stating “[a]nything that
benefited you, you deemed truthful,” but “[a]nything that you thought was remotely prejudicial,
was a lie.” Additionally, the court had concerns with petitioner’s parental fitness, noting “even if
I take the domestic violence out of it . . . you got up here and thought it was okay, essentially, to
use meth[amphetamine] . . . and that anybody that uses meth[amphetamine] can be a fit parent.”
Thus, the court denied petitioner’s motion for another improvement period and found that
terminating petitioner’s parental rights was in the children’s best interests. Ultimately, the court
found that there was no reasonable likelihood that petitioner could substantially correct the
conditions of abuse and neglect in the near future. The court then terminated petitioner’s parental
rights by order entered on June 14, 2021. 2 It is from the dispositional order that petitioner appeals.
2
The mother is participating in an improvement period. The permanency plan is
reunification with the mother upon her successful completion of an improvement period. The
concurrent permanency plan for the children is adoption in the current foster homes.
3
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).
On appeal, petitioner argues that the circuit court erred in failing to reinstate his post-
adjudicatory improvement period, or, in the alternative, erred in failing to grant him a post-
dispositional improvement period. According to petitioner, he demonstrated an ability to comply
with the terms of an improvement period as he had “successfully complied with services offered
and had reached a level of functioning sufficient to care for [the] children.” Petitioner contends
that the domestic violence counseling had been implemented for only two months when the court
erroneously terminated his post-adjudicatory improvement period and that his relationship with
the mother was the only issue to address as he was sober and had housing and employment.
Petitioner asserts that he had only begun to learn through counseling that his keeping the mother
isolated without a cellphone, taking her car keys, and other controlling actions were abusive, and
petitioner should have been able to continue with this counseling. Petitioner also maintains that he
was never the aggressor and that the mother started all fights while she was high on
methamphetamine.
According to West Virginia Code § 49-4-610(7), “[u]pon the motion by any party, the court
shall terminate any improvement period . . . when the court finds that [the parent] has failed to
fully participate in the terms of the improvement period.” (Emphasis added). Here, both the
guardian and the DHHR moved to terminate petitioner’s post-adjudicatory improvement period
upon substantial evidence of his failure to meaningfully participate in the terms of his improvement
period, including evidence that petitioner denied having anger and domestic violence issues to
address and stated to the therapist that he was only attending counseling and anger management
classes because they were court ordered. As such, the court properly terminated petitioner’s post-
adjudicatory improvement period.
By the dispositional hearing, petitioner continued to deny perpetrating physical domestic
violence upon the mother, denied anger issues, blamed the mother for the fights, and claimed that
the children lied about his actions, thus showing that he had experienced no change in
circumstances to warrant another improvement period. See W. Va. Code § 49-4-610(3)(D)
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(establishing that, in order to obtain a post-dispositional improvement period after having been
granted an earlier improvement period, a parent must “demonstrate[] that since the initial
improvement period, the [parent] has experienced a substantial change in circumstances”). Below,
petitioner’s testimony that he was never the aggressor and never engaged in physical domestic
violence with the mother was deemed incredible by the circuit court. “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).
Most importantly, 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). Although
petitioner complied with some aspects of his case plan, he failed to “to improve . . . [the] overall
attitude and approach to parenting.” In re B.H., 233 W. Va. 57, 65, 754 S.E.2d 743, 751 (2014)
(citation omitted). Petitioner continued to maintain that he had no domestic violence or anger
management issues to address and minimized his role in the domestic violence. As petitioner
clearly failed to acknowledge his involvement in the couple’s extensive domestic violence history,
another improvement period would have been futile. Accordingly, we find no error in the circuit
court’s denial of petitioner’s motion for another improvement period.
Further, this same evidence supports the circuit court’s finding that there was no reasonable
likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near
future. Petitioner failed to respond to or follow through with the rehabilitative efforts designed to
reduce or prevent the abuse or neglect of the children as evidenced by his failure to meaningfully
participate in anger management and domestic violence counseling. See W. Va. Code § 49-4-
604(d)(3). Furthermore, termination of petitioner’s parental rights was necessary for the children’s
welfare as the guardian reported that the children wanted no contact with petitioner, and
petitioner’s concerning opinion regarding substance abuse and parenting would place the children
in danger. As such, we find no error in the circuit court’s termination of petitioner’s parental rights,
given that West Virginia Code § 49-4-604(c)(6) permits the termination of parental rights upon
these findings.
Lastly, because the proceedings regarding the mother remain ongoing, this Court reminds
the circuit court of its duty to establish permanency for the children. Rule 39(b) of the Rules of
Procedure for Child Abuse and Neglect Proceedings requires:
At least once every three months until permanent placement is achieved as defined
in Rule 6, the court shall conduct a permanent placement review conference,
requiring the multidisciplinary treatment team to attend and report as to progress
and development in the case, for the purpose of reviewing the progress in the
permanent placement of the child.
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Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child
within twelve months of the date of the dispositional order. As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules
of Procedure[] for Child Abuse and Neglect Proceedings for permanent placement
of an abused and neglected child following the final dispositional order must be
strictly followed except in the most extraordinary circumstances which are fully
substantiated in the record.
Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that
[i]n determining the appropriate permanent out-of-home placement of a
child under [West Virginia Code § 49-4-604(c)(6)], the circuit court shall give
priority to securing a suitable adoptive home for the child and shall consider other
placement alternatives, including permanent foster care, only where the court finds
that adoption would not provide custody, care, commitment, nurturing and
discipline consistent with the child’s best interests or where a suitable adoptive
home [cannot] be found.
Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the child
is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400(1991).
For the foregoing reasons, we find no error in the decision of the circuit court, and its June
14, 2021, order is hereby affirmed.
Affirmed.
ISSUED: February 1, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
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