In Re: S.B. ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re: S.B.
FILED
December 1, 2017
No. 17-0659 (Hardy County 16-JA-17) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father D.B., by counsel Charlie B. Johnson, appeals the Circuit Court of Hardy
County’s May 26, 2017, order terminating his parental rights to S.B.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”), Marla Zelene
Harman, filed a response on behalf of the child also in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in denying his motions for a post­
adjudicatory and a post-dispositional improvement period and terminating his parental rights to
the child when a less-restrictive dispositional alternative existed.
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 August of 2016, the DHHR filed an abuse and neglect petition against petitioner
alleging that he and his wife, who was also the child’s mother and petitioner’s first cousin, each
made false allegations that the other sexually abused the child. The false allegations resulted in
the child undergoing unnecessary medical examinations. The petition also alleged that both
parents were chronic drug abusers and that their drug abuse led to the child’s abuse.
In September of 2016, following petitioner’s waiver of his right to a preliminary hearing,
the circuit court held an adjudicatory hearing wherein petitioner failed to appear but was
represented by counsel. Petitioner’s counsel reported that the parties were not present for the
hearing due to a car accident. It was later reported that the parties lied about being involved in a
car accident and willfully chose not to attend the adjudicatory hearing. In November of 2016, the
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).
1
circuit court held a second adjudicatory hearing wherein the parties again failed to appear in
person, but each was represented by their respective counsel.
On December 7, 2016, the DHHR filed an amended petition re-alleging the previous
allegations and further alleging that petitioner was admitted to a medical center in Baltimore,
Maryland, for a drug overdose wherein he admitted to hospital staff that he ingested Percocet and
snorted heroin. Later, petitioner denied using heroin and suggested that someone put heroin in
his food.
On December 12, 2016, the circuit court held a third adjudicatory hearing wherein all
parties were present. A patrolman with the Moorefield Police Department testified that, in
August of 2016, she received a 9-1-1 call from the mother alleging that petitioner abducted and
sexually abused the child. The patrolman located petitioner while he was driving his vehicle and
executed a traffic stop. After obtaining consent to search petitioner’s vehicle, the patrolman
found a bottle filled with urine which petitioner admitted was to be used for altering his drug
screen. A DHHR worker testified that she responded to a separate referral wherein petitioner
stated that the mother sexually abused the child and abused drugs. The worker also testified that
petitioner later recanted his previous disclosures of sexual abuse and stated that he lied about the
mother abusing drugs. The worker further testified that petitioner was hospitalized for a drug
overdose, denied using drugs, and claimed that the mother’s father “must have put heroin in
some chili” he had given petitioner. Following the testimony, petitioner stipulated to the
allegations as alleged in the original and amended petitions. Petitioner admitted that he exposed
the child to drug abuse and to his “unstable relationship” with the mother. He also admitted that
he failed to provide the child with stable housing and falsely accused the mother of sexual abuse
which resulted in the child enduring unnecessary and painful medical procedures.
In January of 2017, petitioner filed a motion for a post-adjudicatory improvement period.
The circuit court held a hearing on petitioner’s motion wherein a DHHR worker testified that
petitioner had participated in parenting and adult life skills classes, but denied abusing drugs.
Petitioner also denied that he continued his relationship with the mother and stated that he did
not need services. During petitioner’s testimony, he provided numerous excuses for his drug-
seeking behaviors. The circuit court scheduled another hearing on the matter to take place on
March 22, 2017. However, upon appearing for the hearing, counsel for the parties informed to
the circuit court that the mother had died from a heroin overdose. In April of 2017, the circuit
court held a final hearing regarding petitioner’s motion for a post-adjudicatory improvement
period. At the conclusion of the hearing, the circuit court found that this case presented multiple
issues, including false allegations of sexual abuse and drug abuse. The circuit court noted
petitioner’s overall lack of credibility and found that he “manipulate[d] each story to meet his
needs at that particular time.” The circuit court ultimately denied petitioner’s motion for an
improvement period, and found that petitioner failed to demonstrate that he can or will comply
with the terms of the same.
In May of 2017, the circuit court held a dispositional hearing wherein the DHHR
recommended the termination of petitioner’s parental rights. Petitioner requested a post-
dispositional improvement period. At the conclusion of the hearing, the circuit court denied
petitioner’s motion for an improvement period and found that petitioner was offered services
2
throughout the pendency of the case. The circuit court also found that petitioner failed to change
his lifestyle and never fully addressed the issues which led to the filing of the original and
amended petitions. The circuit court further found no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future and that termination of
his parental rights was consistent with the best interests of the child. Ultimately, the circuit court
terminated petitioner’s parental rights to the children by an order entered on May 26, 2017.2 It is
from this order that petitioner now 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
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).
Petitioner first argues on appeal that he should have been granted either a post­
adjudicatory improvement period or a post-dispositional improvement period because he
“complied with the recommendations of the [circuit] court.” We disagree. Petitioner’s argument
ignores important portions of the adjudicatory hearing wherein petitioner illustrated his
continued failure to acknowledge the conditions that gave rise to this proceeding. In order to
obtain a post-adjudicatory or post-dispositional improvement period, West Virginia Code §§ 49­
4-610(2)(B) and (3)(B) require that the parent “demonstrate[s], by clear and convincing
evidence, that [the parent] is likely to fully participate in an improvement period . . . .” Further,
we have often noted that 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)
(holding that “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) (holding that “[i]t is within the court’s discretion to grant an improvement period
within the applicable statutory requirements”).
Here, petitioner failed to prove by clear and convincing evidence that he was likely to
substantially comply with the terms and conditions of either a post-adjudicatory or a post­
2
Petitioner’s parental rights to the child were terminated below, while the child’s mother
is deceased. According to the guardian and the DHHR, the child was placed in a foster home and
the permanency plan is adoption into that home.
3
dispositional improvement period. The circuit court was presented with evidence that petitioner
denied abusing drugs, continued his relationship with the mother, and believed that he did not
need services. In keeping with our prior holdings, we have stated 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) (quoting In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Simply put, petitioner’s failure to acknowledge
the conditions of abuse resulted in his inability to establish that he was likely to fully participate
in an improvement period, as required by West Virginia Code §§ 49-4-610(2)(B) and (3)(B). As
such, we find no error in the circuit court’s denial of petitioner’s motions for either a post­
adjudicatory or post-dispositional improvement period.
Finally, the Court finds no error in the termination of petitioner’s parental rights. On
appeal, petitioner argues that the circuit court should have imposed a less-restrictive dispositional
alternative. However, petitioner’s argument ignores the circuit court’s findings regarding his
continued failure to acknowledge the abuse in the home, the fact that there was no reasonable
likelihood the conditions of abuse and neglect could be substantially corrected in the near future,
and that termination was necessary for the child’s welfare. Specifically, the circuit court found
that petitioner was offered services throughout the pendency of the case, failed to change his
lifestyle, and never fully addressed the issues which led to the filing of the original and amended
petitions. As previously stated, problems of abuse or neglect cannot be remedied unless their
existence is first acknowledged. See In re Timber M., 231 W.Va. at 55, 743 S.E.2d at 363 (2013)
Given petitioner’s refusal to accept his responsibility for the abuse, the circuit court was
correct in finding that there was no reasonable likelihood the conditions of abuse and neglect
could be substantially corrected in the near future. Moreover, the circuit court was similarly
correct in finding that termination of petitioner’s parental rights was necessary to protect the
child’s health, safety, and welfare. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit
courts are directed to terminate parental rights upon such findings. Accordingly, we find no
error.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 26, 2017, order is hereby affirmed.
Affirmed.
ISSUED: December 1, 2017
4
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
5