In re K.G. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re K.G. FILED
June 24, 2020
No. 19-1178 (Hampshire County 19-JA-29) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father K.G. Jr., by counsel Jeremy B. Cooper, appeals the Circuit Court of
Hampshire County’s October 30, 2019, order terminating his parental rights to K.G. 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, Joyce E. Stewart, filed a
response on behalf of the child in support of the circuit court’s order. On appeal, petitioner argues
that the circuit court erred in determining that the conditions of abuse and neglect that led to the
prior involuntary termination of petitioner’s parental rights to an older child had not been
sufficiently mitigated to warrant an improvement period prior to the termination of his parental
rights to K.G.
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 July of 2019, the DHHR filed a child abuse and neglect petition alleging that petitioner’s
parental rights to an older child were involuntarily terminated in March of 2019 due to issues of
physical abuse, domestic violence, and a lack of suitable housing and that those conditions had not
been corrected. The DHHR also alleged that petitioner voluntarily relinquished his parental rights
to three other children in a December of 2017 proceeding after failing to complete an improvement
period to remedy the same issues of physical abuse, domestic violence, and inappropriate housing.
Petitioner waived his right to a 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).
1
In August of 2019, the circuit court held an adjudicatory hearing. A DHHR worker testified
that petitioner was participating in therapy, and petitioner testified that he addressed some of the
issues from the prior case, such as the trash inside the home and unmown grass. However,
petitioner denied the incidents of domestic violence that were the subject of prior proceedings and
characterized them as “misunderstandings.” Further, petitioner acknowledged that the structural
and safety issues of his home had not been resolved. Based on this evidence, the circuit court found
that petitioner failed to address the conditions of physical abuse, domestic violence, and unsafe
housing. The court concluded that petitioner’s circumstances had not substantially changed since
the March of 2019 termination of his parental rights, and it adjudicated him as an abusing parent.
Thereafter, petitioner moved for a post-adjudicatory improvement period.
The circuit court held a dispositional hearing in September of 2019 and heard testimony
from a DHHR worker, petitioner’s therapist, and the mother; petitioner declined to testify.
Petitioner’s therapist testified that petitioner was motivated in therapy and amenable to change.
For example, the therapist indicated that petitioner would complete assigned “homework” and
reading prior to sessions. However, the circuit court noted that the parents were not “forthcoming
with their therapist about the extent of domestic violence in the home and their history of violence
towards children.” Accordingly, the court found that therapy was “rendered ineffective in truly
addressing the underlying issues of abuse and/or neglect, and resulting remediation thereof.” The
circuit court further found that the therapist testified that petitioner required “another two (2) to
three (3) years of therapy to really get to the root of and address the past issues; and that violence
towards children would need to be addressed by an even longer therapy regimen.” The circuit court
also found that petitioner was required to complete a domestic violence course in prior
improvement periods, but failed to present any evidence that he had enrolled or completed a
program to that effect.
Ultimately, the circuit court concluded that petitioner “failed to make any real or effective
progress . . . and [had] minimized [his] involvement in acts of domestic violence, family violence,
and the seriousness of their myriad of problems.” The court further found that there was “no
reasonable likelihood that the conditions giving rise to the abuse and/or neglect of the minor child,
K.G. . . . can be substantially corrected in the near future” due to the parents’ “inability to solve
the problems . . . of abuse and/or neglect on their own and/or without help” and their failure to
“follow through with or respond[] to the recommended services that have been previously
identified as necessary to assist [the parents] in remedying the [c]ourt’s findings of abuse and/or
neglect.” Additionally, the circuit court found that reunification with petitioner was not in the
child’s best interests. Accordingly, the circuit court denied petitioner’s motion for a post-
adjudicatory improvement period and terminated his parental rights by its October 30, 2019, order.
Petitioner now appeals that order. 2
The Court has previously held:
“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
2
The mother’s parental rights were also terminated below. According to the parties, the
permanency plan for the child is adoption in his current foster placement.
2
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 review, this Court finds no
error in the proceedings below.
On appeal, petitioner argues that the circuit court erred in determining that the conditions
of abuse and neglect that resulted in the termination of his parental rights to his older child had not
been sufficiently mitigated to warrant an improvement period prior to the termination of his
parental rights to K.G. Petitioner asserts that the evidence showed he was cooperative and willing
to address the conditions of abuse and neglect that led to the prior termination of his parental rights
in March of 2019. We disagree.
West Virginia Code § 49-4-610(2)(B) provides that the circuit court may grant a parent a
post-adjudicatory improvement period when the parent “demonstrates, by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period.” We have noted
that “West Virginia law allows the circuit court discretion in deciding whether to grant a parent an
improvement period.” In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015). Further,
[w]here an abuse and neglect petition is filed based on prior involuntary
termination(s) of parental rights to a sibling, if such prior involuntary termination(s)
involved neglect or non-aggravated abuse, the parent(s) may meet the statutory
standard for receiving an improvement period with appropriate conditions, and the
court may direct the Department of Health and Human Resources to make
reasonable efforts to reunify the parent(s) and child. Under these circumstances, the
court should give due consideration to the types of remedial measures in which the
parent(s) participated or are currently participating and whether the circumstances
leading to the prior involuntary termination(s) have been remedied.
Syl. Pt. 5, In re George Glen B., Jr., 205 W. Va. 435, 518 S.E.2d 863 (1999).
Here, petitioner failed to prove that he was likely to fully participate in an improvement
period. Critically, petitioner denied the past incidents of domestic violence that precipitated his
prior termination of parental rights. We have 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
3
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). Thus,
petitioner’s denial of this condition of abuse and neglect was a barrier to treatment and, in and of
itself, warranted the circuit court’s denial of an improvement period. Further, the circuit court did
not err in discounting petitioner’s participation in therapy. The evidence showed that petitioner
was not “forthcoming” with his therapist regarding the circumstances of abuse and neglect, such
as the physical abuse against the children in his care. As noted by the circuit court, petitioner’s
therapist testified that petitioner’s current therapy regimen would take two to three years to
complete, but, critically, a regimen to treat petitioner’s violence against children would take even
longer to complete. Even assuming that this therapy would fully remedy the conditions of abuse
and neglect, the circuit court properly considered petitioner’s prior failure to participate in services
and the child’s tender age in denying the motion for an improvement period.
“[C]ourts are not required to exhaust every speculative possibility of
parental improvement . . . where it appears that the welfare of the child will be
seriously threatened, and this is particularly applicable to children under the age of
three years who are more susceptible to illness, need consistent close interaction
with fully committed adults, and are likely to have their emotional and physical
development retarded by numerous placements.” Syl. Pt. 1, in part, In re R.J.M.,
164 W.Va. 496, 266 S.E.2d 114 (1980).
Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4. For K.G., a two-to-three-year timeline for
a safe placement with petitioner is unconscionably long, especially considering petitioner’s failure
to complete services, such as domestic violence and parenting classes, in his prior cases. Based on
petitioner’s failure to acknowledge the conditions of abuse and neglect and his limited attempt to
remedy those conditions prior to the filing of the instant petition, we find no error in the circuit
court’s denial of petitioner’s motion for a post-adjudicatory improvement period.
We also find the circuit court did not err in terminating petitioner’s parental rights to K.G.
West Virginia Code § 49-4-604(b)(6) (2019) 3 provides that a circuit court may terminate a parent’s
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
welfare of the child. Further, “‘[n]o reasonable likelihood that conditions of neglect or abuse can
be substantially corrected’ means that, based upon the evidence before the court, the abusing adult
or adults have demonstrated an inadequate capacity to solve the problems of abuse or neglect on
their own or with help.” W. Va. Code § 49-4-604(c) (2019). Finally, “the legislature has reduced
the minimum threshold of evidence necessary for termination where one of the factors outlined in
3
Although the Legislature amended West Virginia Code § 49-4-604 effective June 5, 2020,
including renumbering the provisions, the amendments do not impact this case.
4
[W. Va. Code § 49-4-605(a)] is present.” 4 George Glen B., Jr., 205 W. Va. at 437, 518 S.E.2d at
865, syl. pt. 2, in part. Here, the circuit court based the requisite finding that there was no
reasonable likelihood that the conditions of neglect or abuse could be substantially corrected upon
petitioner’s denial of the conditions of abuse and neglect and his failure to undergo sufficient
remedial measures to correct those conditions. Additionally, the court correctly found that K.G.
would be subject to those conditions again if returned to petitioner’s care and, therefore, that
termination of petitioner’s parental rights was necessary for the child’s welfare. Petitioner does
not challenge these findings on appeal and we find no error in the circuit court’s termination of his
parental rights based on the record in its entirety.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 30, 2019, order is hereby affirmed.
Affirmed.
ISSUED: June 24, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
4
West Virginia Code § 49-4-605(a)(3) provides, in relevant part, “the department shall file
or join in a petition or otherwise seek a ruling in any pending proceeding to terminate parental
rights . . . [i]f . . . the parental rights of the parent to another child have been terminated
involuntarily.”
5