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In re D.W.

Supreme Court of Appeals of West Virginia

September 13, 2019

In re D.W. Jr. and Z.W.

          Ohio County 18-CJA-111 and 18-CJA-117

          MEMORANDUM DECISION

         Petitioner Father D.W. Sr., by counsel Ann Marie Morelli, appeals the Circuit Court of Ohio County's February 19, 2019, order terminating his parental rights to D.W. Jr. and Z.W.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel James Wegman, filed a response in support of the circuit court's order. The guardian ad litem, Richard W. Hollandsworth, filed a response on behalf of the children in support of the circuit court's order. The maternal grandmother, K.H., by counsel John M. Jurco, and maternal grandfather, R.H., by counsel Joseph J. Moses, also filed responses in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in denying him a post-adjudicatory 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.

         On September 27, 2018, the DHHR filed an abuse and neglect petition alleging that petitioner sexually abused D.W. Jr.'s half-sibling, T.B., [2] and had a history of substance abuse and domestic violence. Specifically, the DHHR alleged that petitioner repeatedly attempted to have sexual intercourse with T.B. from the time she was seven or eight years old and that he sexually abused her when she was fourteen years old. The DHHR also alleged that petitioner was charged with malicious assault against N.H (his then-teenaged girlfriend and mother of Z.W.) in August of 2017 for "kicking her in the head causing bruises on her neck and body." Petitioner also had arrests and/or convictions for two domestic batteries, delivery of cocaine within 1, 000 feet of a school, forgery, and uttering. Finally, the DHHR alleged that petitioner was "homeless and living from house to house," and never provided for the children emotionally, physically, or financially.

         On December 19, 2018, the circuit court held an adjudicatory hearing during which the DHHR presented multiple witnesses to testify regarding the allegations in the petition. Additionally, photographs of N.H. following a domestic violence incident with petitioner were admitted into evidence. Petitioner did not testify or offer any evidence on his own behalf. The circuit court adjudicated petitioner as an abusing parent.

         On February 4, 2019, the circuit court held a dispositional hearing. The circuit court took judicial notice of the evidence presented during the adjudicatory hearing. The DHHR presented testimony that petitioner was incarcerated and that even prior to his incarceration, he never provided financial, emotional, or other support to the children. Next, petitioner testified on his own behalf. When asked whether he was previously found to be an abusing and/or neglecting parent, petitioner replied, "Yes. So they say." He subsequently denied "beating up" N.H., but stated that they had "some altercations." Petitioner stated that he "made some mistakes." However, he denied domestic violence with N.H. despite evidence that he was arrested for malicious assault following an altercation with her. When asked about the sexual abuse allegations regarding T.B., petitioner replied, "I can't speak on that." Petitioner further testified that he was sentenced to one to fifteen years of incarceration for an unrelated criminal conviction and had served six months. He also admitted that he had previously been incarcerated multiple times for drug-related convictions. However, he testified that, during one of the drug-related arrests, he did not have any substances in his possession and was "just driving with someone who had" illegal substances in their possession. After petitioner testified, the circuit court took the matter under advisement.

         On February 19, 2019, the circuit court entered a final dispositional order in the matter. The court made findings regarding petitioner's history of domestic violence with his children's mothers, his criminal history, his substance abuse issues, and his sexual abuse of T.B. Additionally, the court noted that petitioner had "minimal involvement" with D.W. Jr. and failed to provide financial or other support to him. In regard to Z.W., the circuit court noted that petitioner never met the child due to his incarceration. Further, the court found that petitioner "failed to fully acknowledge his abuse and neglect in the case. He denied domestic violence against [N.H.] and exercised his 5th Amendment right not to testify regarding the allegations of sexual abuse of T.B." Ultimately, the circuit court found "[t]here is clear and convincing evidence that there is no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected by [petitioner] in the near future. Said conditions have existed for years, and [petitioner] has failed to take any active steps to remedy the said conditions." The circuit court found that the children's best interests necessitated that petitioner's parental rights be terminated. The court terminated petitioner's parental rights in its February 19, 2019, order.[3] It is from this order that petitioner appeals.

         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 argues that the circuit court erred in not affording him a post-adjudicatory improvement period. In support, petitioner contends that "[n]o evidence by the State showed he was incapable of correcting the problem. Sufficient evidence was shown that he had a problem with his temper and needed to correct the problem." Petitioner further asserts that he "testified that he was ready to address the issues and would work with the [DHHR] to correct them." We do not find petitioner's argument persuasive. 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 moves, in writing, for the improvement period and "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, 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 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)).

         Petitioner failed to testify or present any evidence to demonstrate that he would be likely to participate in a post-adjudicatory improvement period and nothing in the record indicates that petitioner ever moved for a post-adjudicatory improvement period.[4] Later, during the dispositional hearing, he repeatedly denied domestic violence issues despite evidence of the same and refused to take responsibility for drug-related criminal offenses. Because petitioner failed to acknowledge the issues of abuse and neglect and failed to take responsibility for his actions, an improvement period would have been futile at the children's ...


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