In re A.E., L.E., Z.E., and D.P. ( 2019 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
February 15, 2019
EDYTHE NASH GAISER, CLERK
In re A.E., L.E., Z.E., and D.P. SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 18-0721 (Taylor County 18-JA-20, 18-JA-21, 18-JA-22, and 18-JA-23)
MEMORANDUM DECISION
Petitioner Father D.E., by counsel Aaron P. Yoho, appeals the Circuit Court of Taylor
County’s July 17, 2018, order terminating his custodial rights to D.P. and his parental rights to
A.E., L.E., and Z.E.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”), Terri L. Tichenor, 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
denying his motion for a post-adjudicatory improvement period, in finding that he maintained the
same position regarding the abuse throughout the case, in finding that his childhood history of
abuse affected his ability to parent his children, and in terminating his parental and custodial
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 February of 2018, the DHHR filed a petition alleging that petitioner utilized
inappropriate physical discipline against seven-year-old D.P., including choking the child for
taking a snack without permission and cutting the child on the back of the leg with a razor.
Additionally, the DHHR alleged that petitioner engaged in domestic violence with the mother in
the presence of the children and failed to maintain a safe and sanitary home. According to the
DHHR, the home was littered with dog feces and presented an overwhelming smell. Petitioner
waived his preliminary hearing.
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).
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The circuit court held an adjudicatory hearing in May of 2018. Petitioner offered to
stipulate to the unsanitary condition of the home and loud arguments in the home, but
specifically denied any incidents of physical violence or physical abuse of the children. The
DHHR presented testimony from two Child Protective Service (“CPS”) workers and a school
counselor, and introduced forensic interviews of D.P. and Z.E. as evidence. The first CPS worker
explained that D.P. told her that petitioner intentionally cut the back of his leg with a “shaver”
and choked him on one occasion for taking a snack without permission. D.P. repeated these
disclosures to his school counselor. However, the school counselor testified that D.P. returned to
her the following day and stated that he was told at home not to talk to any adults in the school
because he has Oppositional Defiant Disorder (“ODD”), Attention Deficit and Hyperactivity
Disorder (“ADHD”), and that he lied. The school counselor further testified that D.P. explained
that he knew the difference between the truth and a lie, but that he was told to say that he does
not. According to the counselor, D.P. stated that if he spoke with adults at the school, he would
be taken away and made to eat dog food. The second CPS worker testified that she visited
petitioner’s home and opined that it was in an unsuitable condition for children. Additionally,
this worker spoke to four-year-old Z.E. who disclosed that petitioner was mean to him, mean to
D.P., and choked D.P.
Petitioner testified and denied any physical domestic violence in the home. Further,
petitioner denied cutting or choking D.P. Petitioner explained that he was home alone with the
children one evening and heard a thumping sound and crying from the bathroom. Petitioner
checked on D.P. and found that he had fallen in the shower and that his leg was cut by the razor.
However, petitioner admitted that the home was not suitable for the children when CPS visited.
The mother testified and also denied any physical domestic violence in the home. The mother
testified that D.P. overheard conversations about a child in foster care having to eat dog food and
about D.P. lying. The mother also asserted that D.P. never told her that he had been choked, nor
did she observe markings that would indicate he was choked. According to the mother, D.P. has
threatened suicide before and, afterward, he was treated by a neuropsychologist who diagnosed
him with ODD and ADHD. During cross-examination, the mother testified that she would
believe her children if they told her that they had been abused, but that she did not believe that
petitioner choked or cut D.P.
Ultimately, the circuit court found that D.P.’s prior disclosures were corroborated by Z.E.
and that the children’s forensic interviews were very persuasive. Further, the circuit court found
that the testimony of petitioner and the mother was not credible. Accordingly, the circuit court
found that the DHHR proved by clear and convincing evidence that the children were abused and
neglected. Petitioner then moved for a post-adjudicatory improvement period, which the circuit
court denied.
In June of 2018, the circuit court held the final dispositional hearing and petitioner
renewed his motion for a post-adjudicatory improvement period but did not testify. The DHHR
presented evidence that petitioner continued to deny that he physically abused D.P. and
continued to assert the same explanation as to how the child was cut. The DHHR suggested that
a psychological evaluation might help petitioner recognize his deficiencies. In response to the
DHHR’s suggestion, the circuit court reasoned that petitioner’s failure to acknowledge his
wrongdoing rendered the conditions of abuse and neglect untreatable. Accordingly, the circuit
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court denied petitioner’s second motion for a post-adjudicatory improvement period and
terminated petitioner’s custodial rights to D.P. and his parental rights to the remaining children.
The circuit court memorialized its decision in its July 17, 2018, order. Petitioner now appeals
that order.2
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). Upon our review, this Court
finds no error in the proceedings below.
On appeal, petitioner first argues that the circuit court erred in denying his motion for a
post-adjudicatory improvement period. Petitioner asserts that the circuit court could have granted
his motion despite the fact that he failed to acknowledge the abuse that he perpetrated on D.P.
We find no merit to petitioner’s argument. West Virginia Code § 49-4-610(2) provides that a
circuit court may grant a post-adjudicatory improvement period when “[t]he respondent files a
written motion requesting the improvement period” and “demonstrates, by clear and convincing
evidence, that the respondent is likely to fully participate in the improvement period[.]” 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[.]”).
Further, this Court has 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
2
The mother’s parental rights were also terminated during these proceedings. D.P.’s
father’s parental rights were terminated in a prior proceeding. According to the parties, the
permanency plan for the children is adoption in their current relative foster placement.
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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)).
The circuit court did not err in denying petitioner’s motion for a post-adjudicatory
improvement period because petitioner failed to acknowledge that he physically abused D.P. The
circuit court’s denial of petitioner’s motion was consistent with our prior holdings that a parent
must acknowledge the existence of the problem before treatment can be effective. Accordingly,
we find no error in the circuit court’s denial of petitioner’s motion for a post-adjudicatory
improvement period.
Petitioner also argues that the circuit court erred in finding that his own abuse as a child
was a learned behavior and that petitioner would perpetuate that behavior in his parenting.
Petitioner believes that he would have been more likely to have been granted an improvement
period if the circuit court did not make this finding. However, petitioner ignores that he failed to
acknowledge the existence of the problem and, therefore, created the barrier to treatment.
Likewise, petitioner argues that the circuit court erred in finding that he “maintained the same
position pertaining to abuse” throughout the case. Petitioner asserts that he participated in
services and remedied the conditions with his home. However, petitioner presented no evidence
that his position with regard to the abuse of D.P. had changed or that he acknowledged the
problem. Accordingly, we find that petitioner is entitled to no relief.
Finally, petitioner argues that the circuit court erred in terminating his parental and
custodial rights. We disagree. West Virginia Code § 49-4-604(b)(6) provides, in relevant part,
that circuit courts are to terminate parental rights upon findings 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 child’s welfare. West Virginia Code § 49-4-
604(c)(3) provides, in relevant part, that a situation in which there is no reasonable likelihood the
conditions of abuse and neglect can be substantially corrected includes one in which the abusing
parent “ha[s] not responded to or followed through with a reasonable family case plan or other
rehabilitative efforts of social, medical, mental health or other rehabilitative agencies designed to
reduce or prevent the abuse or neglect of the child[.]”
The circuit court correctly found that there was no reasonable likelihood that the
conditions of abuse and neglect could be corrected in the near future because petitioner failed to
acknowledge the existence of the abuse and rendered the problem untreatable. Petitioner
consistently denied the abuse that the circuit court found to have occurred by clear and
convincing evidence. Therefore, no form of treatment would be successful in treating the abuse
that petitioner could not recognize. Further, it was clearly necessary for the children’s welfare to
terminate petitioner’s parental and custodial rights to avoid further physical abuse.
We have held as follows:
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“Termination 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). The circuit court did not err in
finding that there was no reasonable likelihood that the conditions of abuse and neglect could be
substantially corrected or in finding that termination was necessary for the welfare of the child.
Accordingly, we find no error in the circuit court’s termination of petitioner’s parental and
custodial rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 17, 2018, order is hereby affirmed.
Affirmed.
ISSUED: February 15, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
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