County 18-JA-20, 18-JA-21, 18-JA-22, and 18-JA-23
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. 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.
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.
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.
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.
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.
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
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 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.
Court has previously established the following standard of
"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
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
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
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.
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