In Re: B.M., B.B.-1, B.B.-2, and L.B. ( 2016 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: B.M., B.B.-1, B.B.-2, and L.B. September 19, 2016
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 16-0423 (Mineral County 16-JA-1, 16-JA-2, 16-JA-3 & 16-JA-4) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father A.B., by counsel Max H. White, appeals the Circuit Court of Mineral
County’s April 19, 2016, order terminating his parental rights to eight-year-old B.B.-1, seven­
year-old B.B.-2, and six-year-old L.B.1 The West Virginia Department of Health and Human
Resources (“DHHR”), by counsel Lee Niezgoda, filed its response in support of the circuit
court’s order. The guardian ad litem (“guardian”), Lauren M. Wilson, filed a response on behalf
of the children also in support of the circuit court’s order. On appeal, petitioner argues that the
circuit court erred in: (1) terminating his parental rights to his biological children, (2) denying
him services related to his biological children, (3) denying his motions for a pre-adjudicatory and
post-adjudicatory improvement period, and (4) adjudicating B.B.-1, B.B.-2, and L.B. as
neglected children.2
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.
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). Because two of the children in this case have the same
initials, we have distinguished each of them using numbers 1 and 2 after their initials in this
Memorandum Decision. The circuit court case numbers also serve to distinguish each child.
2
In the circuit court, this abuse and neglect proceeding concerned petitioner’s biological
children, B.B.-1, B.B.-2, and L.B., and petitioner’s step-daughter, B.M. While petitioner appeals
certain findings made in regard to the termination of his parental rights to his biological children,
the circuit court did not terminate any rights that petitioner may have to B.M., and petitioner
does not make any arguments regarding B.M. on appeal. As such, this memorandum decision
concerns only the termination of petitioner’s parental rights to B.B.-1, B.B.-2, and L.B.
1
In January of 2016, the DHHR filed an abuse and neglect petition against petitioner
alleging that he sexually abused B.M., his step-daughter, on New Year’s Eve. The petition
contained additional allegations that petitioner used illegal drugs, committed domestic violence
in the presence of the children, and failed to provide safe living conditions. Thereafter, petitioner
filed a motion for a pre-adjudicatory improvement period.
The following month, the circuit court held an adjudicatory hearing during which it heard
testimony from several witnesses that B.M. disclosed an ongoing pattern of inappropriate
touching by petitioner that increased in severity over time. The witnesses also testified that B.M.
witnessed petitioner commit domestic violence against the children’s mother and observed
petitioner crush up and snort pills. By order entered March 4, 2016, the circuit court found that
petitioner sexually abused B.M., exposed all of the children to substance abuse, and failed to
provide all of the children a safe home. Petitioner moved for a post-adjudicatory and
dispositional improvement period.
In April of 2016, the circuit court held a dispositional hearing during which it heard
testimony that it was in the children’s best interests to deny petitioner any visitation. By order
entered April 19, 2016, the circuit court found that there was no reasonable likelihood that the
conditions of abuse and/or neglect could be corrected in the near future and that it was in the
children’s best interest to terminate petitioner’s parental rights. This appeal followed.
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).
To begin, this Court finds no merit to petitioner’s argument that the circuit court erred in
adjudicating petitioner as an abusing and/or neglecting parent to B.B.-1, B.B.-2, and L.B. This
Court has held that
[w]here there is clear and convincing evidence that a child has suffered . . .
sexual abuse while in the custody of his or her parent(s), guardian, or custodian,
another child residing in the home when the abuse took place who is not a direct
2
victim of . . . sexual abuse but is at risk of being abused is an abused child under
W.Va.Code, 49–1–3(a) (1994).
Syl. Pt. 2, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995). As noted above, the circuit
court found that petitioner sexually abused B.M. Therefore, B.B.-1, B.B.-2, and L.B. are abused
children because they were residing in the home during the sexual abuse and were at risk of
being abused. Furthermore, petitioner’s argument ignores the fact that the circuit court found that
he abused and/or neglected B.B.-1, B.B.-2, and L.B. on grounds separate from the sexual abuse.
Specifically, the circuit court found that petitioner abused and neglected these children by
exposing them to substance abuse and failing to provide a safe home. For these reasons,
petitioner is entitled to no relief in this regard.
Next, petitioner argues that the circuit erred in terminating his parental rights without
implementing services in the underlying proceedings. While we note that the circuit court did not
find that aggravated circumstances existed in this case, a review of the appendix record reveals
that there is sufficient evidence that the circuit court could have found that aggravated
circumstances existed. West Virginia Code § 49-4-604(b)(7) provides, in relevant part, that “the
[DHHR] is not required to make reasonable efforts to preserve the family if the court determines
. . . [t]he parent has subjected the child, another child of the parent or any other child residing in
the same household . . . to aggravated circumstances which include, but are not limited to . . .
sexual abuse.”
Here, the circuit court specifically found that petitioner sexually abused B.M. Based upon
this finding, it is clear that petitioner subjected all the children to aggravated circumstances by
such abuse to B.M. For these reasons, the DHHR was not required to make reasonable efforts to
return the children to petitioner’s home, and we find no error in the circuit court proceeding to
disposition in the absence of such efforts.
Related to this assignment of error, petitioner argues that the circuit court erred in
denying him a pre-adjudicatory or post-adjudicatory improvement period. As noted above, the
DHHR was not required to make efforts to preserve the family based upon aggravated
circumstances. Be that as it may, we have explained that West Virginia Code §§ 49-4-610(1) and
(2) provide circuit courts with discretion in determining whether to grant or deny a post­
adjudicatory improvement period to petitioner in these proceedings. See Gebr. Eickhoff
Maschinenfabrik Und Eisengieberei mbH v. Starcher, 174 W.Va. 618, 626 n. 12, 328 S.E.2d
492, 500 n. 12 (1985) (stating that“[a]n elementary principle of statutory construction is that the
word ‘may’ is inherently permissive in nature and connotes discretion.” (citations omitted)); see
also In re Tonjia M, 212 W.Va. 443, 448, 573 S.E.2d 354, 359 (2002) (stating that “[w]e have
held that the granting of an improvement period is within the circuit court’s discretion.”).
Accordingly, a circuit court may grant an improvement period to a respondent parent who
demonstrates by clear and convincing evidence that he is likely to fully participate in the same.
Here the record is devoid of any evidence that petitioner was likely to fully participate in an
improvement period. Therefore, based on the record before us, we find that petitioner failed to
satisfy this burden. As such, we find no abuse of discretion in the circuit court’s denial of an
improvement period herein.
3
Finally, petitioner contends that the circuit court erred in terminating his parental rights to
B.B.-1, B.B.-2, and L.B. We disagree. We have often explained that “[t]ermination . . . may be
employed without the use of intervening less restrictive alternatives when it is found that there is
no reasonable likelihood . . . that conditions of neglect or abuse can be substantially corrected.”
Syl. Pt. 7, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996). Pursuant to West
Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate parental rights upon such
findings. Here, the circuit court found that there was no reasonable likelihood that the conditions
of neglect or abuse could be substantially corrected in the near future and that the children’s
welfare required termination. Therefore, we find no merit to petitioner’s assignment of error on
appeal.
For the foregoing reasons, we find no error in the circuit court’s April 19, 2016, order,
and we hereby affirm the same.
Affirmed.
ISSUED: September 19, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
4