In re W.D. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re W.D. FILED
September 3, 2020
No. 20-0100 (Wood County 17-JA-190) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father N.D., by counsel Heather L. Starcher, appeals the Circuit Court of
Wood County’s January 7, 2020, order terminating his parental rights to W.D.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Robin
Bonovich, 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 second parental
fitness evaluation and 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 July of 2017, the DHHR filed an abuse and neglect petition alleging that when the
parents vacated their residence in Washington County, Ohio, the same month, they left behind a
notebook that contained detailed and graphic conversations between them discussing plans to
sexually abuse then-one-year-old W.D. Upon investigation, the matter was referred to the DHHR
due to the parents’ residence in Wood County, West Virginia.2 The DHHR concluded that 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).
2
In the proceedings below, the parents filed a joint motion to dismiss based upon lack of
jurisdiction in October of 2017. The circuit court ultimately denied that motion after finding that
(continued . . . )
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parents were not capable of providing appropriate protection and supervision in light of their
explicit written discussions regarding sexual acts with their child and “being okay with the other
taking part in the sexual acts with their child.” Stemming from the discovery of the notebook,
petitioner was arrested in Washington County, Ohio, upon charges of child endangerment and
“pandering obscenity involving a minor.”3
In April of 2018, the circuit court held an adjudicatory hearing during which the parents
stipulated to the allegations contained in the petition. Specifically, petitioner admitted that he
would benefit “from individualized counseling and other services so that he may be able to
appropriately tend to the needs of the child.” In May of 2018, the circuit court granted the
parents post-adjudicatory improvement periods, the terms of which included participating in
parenting and adult life skills classes as well as attending supervised visitations with the child.
The parents were further required to attend individualized therapy sessions to address the sexual
abuse allegations and to sign releases to allow the DHHR to access the parents’ monthly reports
from their therapy provider. Finally, the parents agreed to submit to a “psychological evaluation
with a [multidisciplinary team] approved provider to determine any mental health diagnosis, to
gain recommendations as to services that would benefit [them] and to gain knowledge on [their]
ability to [parent] the child.”
A DHHR provider submitted a summary in June of 2018 regarding petitioner’s progress
in individualized parenting sessions which stated that petitioner “appear[ed] angry at times when
sensitive topics that he does not want to discuss arise. [The parents] do not appear to take the
appropriate amount of responsibility for their current situation.” The next month, the DHHR
submitted a court summary finding that petitioner had been compliant with the terms and
conditions of his improvement period. Upon the recommendations made in the psychological
evaluations and the DHHR’s request, the circuit court ordered that the parents submit to a
parental fitness evaluation by a review hearing scheduled in September of 2018. Petitioner
submitted to that evaluation the same month, which revealed a history of substance abuse and
incest with his father and stepfather as well as allegations that he raped his younger siblings.
During his evaluation, petitioner stated that he did not need therapy because of his devotion to
his church. The evaluation included reports that the child exhibited signs of sexual abuse
including “crying, distress, and covering [himself] during diaper changes” and that the child was
developmentally delayed. During the evaluation petitioner expressed no remorse for his actions,
claiming that nothing was “done” to the child, and the evaluator concluded that petitioner’s “lack
of a moral compass (as evidenced in the notebook, sexually deviant behaviors, and assessment
results) increase[d] the risk of abuse to [W.D.].” Finally, the evaluator recommended that
petitioner’s visitations with the child “cease immediately” and that his parental rights be
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it had jurisdiction to proceed under the Uniform Child Custody Jurisdiction and Enforcement
Act. Petitioner does not challenge this ruling on appeal.
3
Petitioner was ultimately convicted of one count of child endangerment and served
forty-six days of incarceration before being released on probation during the course of the
underlying proceedings.
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terminated in light of the “information obtained and results of various assessments [that] the risk
of abuse is too significant to warrant reunification.”
In November of 2018, the DHHR submitted a court summary stating that petitioner had
failed to sign a release “to let the worker see that he is attending therapy,” remained “living in
the same situation and residence” with the mother, failed to interact with the child during visits,
was unemployed, and was “mean and controlling” during individualized parenting sessions. The
summary concluded that because petitioner had not accepted responsibility for his actions and
denied that the child was developmentally delayed at the time of his removal, it was “unclear
what services [could] help him.” That same month, the DHHR filed a motion to terminate
petitioner’s improvement period citing the portions of his parental fitness evaluation where he
defended his actions as “therapeutic and part of his first amendment rights.” Upon the DHHR’s
motion to terminate petitioner’s improvement period, the circuit court held a hearing in April of
2019 and heard the testimony of the psychologist who authored petitioner’s parental fitness
evaluation. Thereafter, petitioner filed a motion to have a parental fitness evaluation performed
by an “alternate psychological evaluator.” At a hearing held in October of 2019, the circuit court
denied the motion, finding that there was no evidence that petitioner’s parental fitness evaluation
was “improper” and set the case for disposition.
In November of 2019, the guardian filed a report recommending the termination of
petitioner’s parental rights. Final dispositional hearings were held in November and December of
2019. The parents requested post-dispositional improvement periods. The DHHR moved to
terminate the parents’ parental rights and presented evidence that the parents had failed to
complete the terms and conditions of their post-adjudicatory improvement periods. Specifically,
the DHHR argued that although petitioner agreed to participate in counseling to address the
allegations of sexual abuse, he failed to sign the required release of records regarding these
sessions, leaving the circuit court and the DHHR blind to his progress. Petitioner testified that he
attended individualized therapy sessions to address his attention deficit hyperactivity disorder
(“ADHD”), anxiety, and depression, but acknowledged that he never received treatment for the
sexual abuse allegations. He also testified that he learned that his actions were wrong through his
participation in church in August of 2017; however, the record reflects that petitioner defended
those same actions in his parental fitness evaluation in September of 2018—nearly a year later.
Further, a DHHR provider testified that when petitioner attended individualized parenting
sessions regarding sexual abuse, he became very defensive and unreceptive. The provider
testified in the following exchange:
[The DHHR]: How did [the parents] react when you would go over that [sexual
abuse] material with them?
[Witness]: [T]hey would want to defend or deflect the allegation, the notebook in
and of itself, the writing they said was just writings. They didn’t really
demonstrate any responsibility or awareness of the negative impact
that they would have had on a child.
....
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[The DHHR]: Did they acknowledge or believe that [W.D.] had deficits when
he—prior to being taken into the [DHHR’s] care?
[Witness]: No. They believed that he had abilities that somehow disappeared
during the time that he was placed.
At the conclusion of the December of 2019, dispositional hearing, the circuit court held
the matter in abeyance. Ultimately, the circuit court denied the parents’ motions for post-
dispositional improvement periods, finding that they could not show a substantial change in
circumstances. Further, the circuit court found that there was no reasonable likelihood that
petitioner could correct the conditions of abuse and neglect in the near future and that
termination of his parental rights was necessary for the child’s welfare. The circuit court
terminated petitioner’s parental rights by order entered on January 7, 2020. It is from this
dispositional order that he now appeals.4
The Court has previously established the following standard of review in cases such as
this:
“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 first argues that the circuit court erred in denying his motion for
another parental fitness evaluation to be performed prior to the final dispositional hearing.
According to petitioner, his parental fitness evaluation was completed fifteen months prior to the
dispositional hearing and a subsequent evaluation “would have provided the [circuit court] with a
more complete picture of how the [p]etitioner had addressed and/or corrected the issues that were
of concern in the original [parental fitness evaluation].” We disagree.
The mother’s parental rights were also terminated below. According to the DHHR, the
4
permanency plan for the child is adoption by his foster family.
4
West Virginia Code § 49-4-603(a)(1) provides as follows:
At any time during proceedings under this article the court may, upon its own
motion or upon motion of the child or other parties, order the child or other parties
to be examined by a physician, psychologist or psychiatrist, and may require
testimony from the expert, subject to cross-examination and the rules of evidence.
Here, it is undisputed that the DHHR complied with our holding in In re: Chevie V., 226
W. Va. 363, 700 S.E.2d 815 (2010), that it must pay for and provide professional services,
including parental fitness evaluations, for respondent parents such as petitioner herein. “Our
holding in Chevie V. does not, however, stand for the proposition that petitioner may request
multiple parental fitness evaluations merely because [he] may be unsatisfied with the outcome of
the first parental evaluation.” In re J.B., No. 19-0581, 2020 WL 1674018, at *3-*4 (W. Va. Apr.
6, 2020)(memorandum decision). On appeal, petitioner presents no evidence that his parental
fitness evaluation failed to provide the circuit court with accurate information regarding his
ability to parent or whether he addressed his desires to commit sexual abuse of the child.
Petitioner assumes that the passage of time alone is enough to require the circuit court to order a
second parental fitness evaluation and fails to argue exactly how a second evaluation would have
benefited the circuit court. As petitioner fails to support his claim that a second evaluation was
warranted, we find no error in the circuit court’s denial of his motion for a second parental
fitness evaluation.
Petitioner next argues that the circuit court erred in denying him a post-dispositional
improvement period. According to petitioner, the circuit court gave improper weight to the
results of his parental fitness evaluation, which did not account for his progress in parenting
classes and individualized therapy sessions. Further, petitioner points to his testimony
concerning his dedication to his church and argues that his change of heart or attitude coupled
with his compliance with his improvement period terms shows sufficient progress to warrant the
granting of another improvement period. According to petitioner, through his testimony, he
established that there had been a substantial change in circumstances warranting the granting of a
post-dispositional improvement period. Upon our review, we find that petitioner is entitled to no
relief.
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 . . . .”). We have also held that a parent’s “entitlement to an improvement period is
conditioned upon the ability of the [parent] to demonstrate ‘by clear and convincing evidence
that the respondent is likely to fully participate in the improvement period.’” In re Charity H.,
215 W. Va. 208, 215, 599 S.E.2d 631, 638 (2004). Lastly, West Virginia Code § 49-4-610(3)(D)
provides that a circuit court may grant a parent a post-dispositional improvement period when
[s]ince the initiation of the proceeding, the [parent] has not previously been
granted any improvement period or the [parent] demonstrates that since the initial
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improvement period, the [parent] has experienced a substantial change in
circumstances. Further, the [parent] shall demonstrate that due to that change in
circumstances, the [parent] is likely to fully participate in the improvement
period.
Having reviewed the record, we find that the circuit court did not err in denying
petitioner’s request for a post-dispositional improvement period. Because petitioner was already
granted a post-adjudicatory improvement period during the proceedings, he was required to
demonstrate (1) a substantial change in circumstances and (2) that he was likely to fully
participate in an improvement period. On appeal, petitioner fails to establish what substantial
change of circumstances he experienced. Moreover, the overwhelming evidence set forth below
demonstrates that petitioner was unlikely to fully participate in a post-dispositional improvement
period given his failure to complete the most crucial term of his post-adjudicatory improvement
period—individualized therapy and parenting sessions to address his desires to sexually abuse
his son. As the circuit court noted, petitioner failed to provide confirmation from his therapy
provider to corroborate his testimony that he attended individualized therapy for over a year.
Also, when the parenting provider attempted to implement the sexual abuse curriculum,
petitioner refused to participate. At the final dispositional hearing, petitioner’s only alleged
change in circumstances was that he had “changed internally” as a result of his participation in
his church. The circuit court explained that it could not “determine whether this internal change
ha[d] occurred, but [could] only look at the past and present conduct and behaviors of the
respondent parents.” The circuit court further noted that petitioner’s parental fitness evaluation in
which he defended his actions as therapeutic and protected First Amendment speech occurred in
September of 2018, well after he allegedly underwent this change in 2017. We have previously
held that failure to acknowledge the issues of abuse and neglect render an improvement period
an “exercise in futility.” In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013)
(citation omitted). Further, the circuit court found that petitioner’s testimony lacked credibility.
“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). Based on petitioner’s failure to comply with the most important terms of
his post-adjudicatory improvement period and his failure to genuinely acknowledge the severity
of his actions, we find no error in the circuit court’s denial of his motion for a post-dispositional
improvement period.
Petitioner’s final assignment of error alleges that the circuit court erred in terminating his
parental rights “as there was insufficient evidence to show [that petitioner] could not
substantially correct the conditions which gave rise to the filing of the abuse and neglect
petition.” Additionally, petitioner claims that the circuit court failed to consider less-restrictive
alternative dispositions. We find no merit in petitioner’s argument.5
5
Within this assignment of error, petitioner inserts a single sentence alleging that the
circuit court’s denial of his request for post-termination visitation was not in the child’s best
interest. However, petitioner failed to cite to a single case or the appendix record in support of
(continued . . . )
6
West Virginia Code § 49-4-604(c)(6) provides that circuit courts are to terminate
parental rights upon finding 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(d)(3) provides that a situation in which there
is “[n]o reasonable likelihood that [the] conditions of neglect or abuse can be substantially
corrected” includes when the abusing parent has
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, as
evidenced by the continuation or insubstantial diminution of conditions which
threatened the health, welfare, or life of the child.
The record demonstrates that there was no reasonable likelihood that petitioner could
correct the conditions of abuse and neglect in the near future. As shown above, the evidence
established that petitioner failed to meaningfully participate in and complete court-ordered
sexual abuse counseling and therapy. Further, petitioner’s failure to sign the required release of
records for the therapy sessions resulted in the DHHR’s inability to confirm that petitioner
participated in therapy as directed and constituted a lack of compliance with the terms and
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this assertion. These failures are in direct contradiction of Rule 10(c)(7) of the West Virginia
Rules of Appellate Procedure requiring that
[t]he brief must contain an argument exhibiting clearly the points of fact and law
presented, the standard of review applicable, and citing the authorities relied on,
under headings that correspond with the assignments of error. The argument must
contain appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal. The Court may disregard errors that are not
adequately supported by specific references to the record on appeal.
Additionally, in an Administrative Order entered on December 10, 2012, Re: Filings That Do
Not Comply With the Rules of Appellate Procedure, this Court specifically noted that “[b]riefs
that lack citation of authority [or] fail to structure an argument applying applicable law” are not
in compliance with this Court’s rules. Further, “[b]riefs with arguments that do not contain a
citation to legal authority to support the argument presented and do not ‘contain appropriate and
specific citations to the record on appeal . . .’ as required by rule 10(c)(7)” are not in compliance
with this Court’s rules. Id. “A skeletal ‘argument,’ really nothing more than an assertion, does
not preserve a claim. . . . Judges are not like pigs, hunting for truffles buried in briefs.” State v.
Kaufman, 227 W. Va. 537, 555 n.39, 711 S.E.2d 607, 625 n.39 (2011) (citation omitted).
Because petitioner’s brief with regard to this assertion is woefully inadequate and entirely fails to
comply with Rule 10(c)(7) of the Rules of Appellate Procedure, we decline to address this issue
on appeal.
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conditions of his improvement period. According to petitioner’s own testimony, he attended
therapy to address his ADHD, anxiety, and depression, but he also admitted that he had not
received treatment to address sexual abuse. Therefore, the evidence demonstrates that petitioner
failed to respond to or follow through with rehabilitative services designed to reduce or prevent
the abuse and neglect of the child. Based on the foregoing, it is clear that there was no reasonable
likelihood that petitioner could correct the conditions of abuse and neglect and that termination
was necessary for the child’s welfare.
While petitioner claims he should have been granted a less-restrictive dispositional
alternative other that the termination of his parental rights, we have previously held that
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [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 [West
Virginia Code § 49-4-604(d)] 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). Accordingly, the circuit
court’s findings are fully supported by the record below, and we find no error in the termination
of petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 7, 2020, order is hereby affirmed.
Affirmed.
ISSUED: September 3, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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