STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

March 6, 2014 In Re: H.S. released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS No. 13-0486 (Kanawha County 12-JA-159) OF WEST VIRGINIA 

MEMORANDUM DECISION 

The respondent father below and petitioner herein, C.S.1 (hereinafter “father”), 

appeals from an order entered April 26, 2013, from the Circuit Court of Kanawha County. 

By that order, the circuit court terminated the father’s parental rights and placed the minor 

child in the permanent custody of the mother.2 On appeal to this Court, the father argues that 

the circuit court erred and asks that his parental rights be reinstated. The West Virginia 

Department of Health and Human Resources (hereinafter “WVDHHR”) agrees with the 

circuit court’s termination of the father’s parental rights. The guardian ad litem (hereinafter 

“guardian”), on behalf of the minor child, does not fully concur with the circuit court’s 

disposition of the case. The guardian is clear that he believes termination of the father’s 

parental rights was correct. However, the guardian departs from the circuit court in his belief 

that the circuit court should have considered post-termination visitation and requests that the 

case be remanded for that purpose. Based on the parties’ arguments, the record designated 

for our consideration, and the pertinent authorities, we affirm the rulings made by the circuit 

court. 

The action before this Court was timely perfected, and the appendix record 

accompanied the petition. Based upon the parties’ written submissions and oral arguments, 

the portions of the record designated for our consideration, and the pertinent authorities, we 

find that the circuit court was correct in terminating the father’s parental rights to the minor 

child. Accordingly, we affirm the underlying circuit court order. This Court further finds 

that this case presents no new or significant questions of law and, thus, will be disposed of 

1

“We follow our past practice in juvenile and domestic relations cases which 

involve sensitive facts and do not utilize the last names of the parties.” State ex rel. W. Va. 

Dep’t of Human Servs. v. Cheryl M., 177 W. Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 

(1987) (citations omitted). 

2

The mother was a respondent in the underlying action, the result of which was 

the mother being awarded permanent custody of the minor child; she is not a party to the 

instant proceeding and did not file responsive pleadings herein. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

through a memorandum decision as contemplated by Rule 21 of the Revised Rules of 

Appellate Procedure. 

The underlying facts of this case began with the WVDHHR’s filing of a 

petition for abuse and neglect on July 3, 2012. In the petition, it was alleged that the father 

sexually abused and neglected the child. The basis for the allegation was a disclosure the 

child made to a therapist that the father “touched her pee-pee” and that she does not like 

going to visit her father’s house. 

The preliminary hearing was held July 9, 2012. Marta Gillespie, the therapist 

to whom the child made the disclosure, testified that the child’s disclosure was made to her 

on two occasions: once at the child’s home during play therapy and once when she visited 

the child at school. The child told her therapist that the father would take her out of her 

grandparent’s bed at night afer they had all gone to sleep, and he would carry her to another 

room and touch her “pee pee.” The child motioned to her privates and said she wished her 

father would not touch her there. Further, Ms. Gillespie testified that the child begged her 

not to send her back to her father’s house and asked Ms. Gillespie to protect her. Ms. 

Gillespie testified that she had no indication in her meetings with the child that would lead 

her to think the child was being prompted or induced to tell her anything. 

Thereafter, at the adjudicatory hearing on August 9, 2012, Ms. Gillespie again 

testified and stated that she had continued to meet with the child on a regular basis for 

therapy. At the most recent session, a week prior to the adjudicatory hearing, the child said 

that her father had not touched her privates. However, the child still stated that she did not 

want to go visit her father or to stay the night at his home. The minor child then declined to 

address the issue further and answered continued questions with “I don’t know.” At the 

conclusion of the hearing, the circuit court found that the evidence was clear and convincing 

that the child was abused and neglected by the father, and granted supervised visitation based 

on the guardian’s request and the child’s tender age of five years. 

On October 15, 2012, the adjudicatory order was entered with the following 

findings by the circuit court: “1. That [the child] has disclosed in therapy that her father 

touches her ‘pee pee[,]’ [and] 2. [The child] has further disclosed that she does not like her 

‘pee pee’ being touched and that she does not like going to her father’s house.” The 

WVDHHR’s status report from October 1, 2012, had recommended termination of the 

father’s parental rights and for the child to be placed in the mother’s custody. The guardian, 

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however, moved for the termination of the mother’s parental rights, which the circuit court 

denied.3 

Thereafter, on April 26, 2013, the termination order was entered. In so doing, 

the circuit court found that the father had not followed through with a reasonable family case 

plan or other rehabilitative services, nor had he made efforts to rectify the circumstances that 

led to the filing of the petition. The circuit court terminated the father’s parental rights and 

ordered permanent placement of the child with her mother. The father appeals to this Court. 

Generally, in the realm of an abuse and neglect case, 

[a]lthough 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 the Interest of: Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). 

Mindful of the applicable standards, we proceed to consider the parties’ arguments. 

3

The mother and father had been the subject of two previous petitions, which 

eventually were dismissed. As a result of those previous petitions, which are not part of this 

appeal, the mother received services. The testimony at the hearings stated that the mother 

complied and excelled as a result of the offered services and that there were no current 

complaints. The petition presently before this Court originally named the mother as a 

respondent based on her inability to provide organized and appropriate care; however, the 

mother excelled at the offered services, and the WVDHHR altered its request and asked for 

the mother to be granted full custody of the child. The guardian disagreed with placing the 

child with the mother; however, no action was taken to appeal the lower court’s ruling, and 

it is not a question that is before this Court. 

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On appeal to this Court, the father assigns error to the circuit court’s 

termination of his parental rights. The father asserts that allegations contained in the petition 

were unsupported by evidence. Specifically, he contends that the WVDHHR failed to prove 

that he touched the child inappropriately. While the guardian appears to agree that the 

father’s parental rights should be terminated, the guardian disagrees with the circuit court’s 

disposition of the case in that the guardian believes that the lower court failed to consider a 

less restrictive alternative and, therefore, asks this Court to remand the case for a 

consideration of post-termination visitation. Contrarily, the WVDHHR argues that the 

evidence, through the child’s disclosures to the therapist, was clear and convincing proof that 

the father abused the child. 

As in all cases involving children, this Court holds paramount the best interests 

of the child, while also balancing a parent’s right to his or her child. See Syl. pt. 3, In re 

Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“Although parents have substantial rights 

that must be protected, the primary goal in cases involving abuse and neglect, as in all family 

law matters, must be the health and welfare of the children.”). See also Michael K.T. v. Tina 

L.T., 182 W. Va. 399, 405, 387 S.E.2d 866, 872 (1989) (“[T]he best interests of the child is 

the polar star by which decisions must be made which affect children[.]” (citation omitted)). 

“Though constitutionally protected, the right of the natural parent to the custody of minor 

children is not absolute and it may be limited or terminated by the State, as Parens patriae, 

if the parent is proved unfit to be entrusted with child care.” Syl. pt. 5, In re Willis, 157 

W. Va. 225, 207 S.E.2d 129 (1973). 

The father argues that there was a lack of evidence to support the circuit court’s 

termination of his parental rights. In this regard we have recognized that the allegations of 

abuse or neglect must be shown by clear and convincing evidence. See Syl. pt. 3, in part, In 

re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995) (“W. Va. Code, 49-6-2(c) . . . 

requires . . . in a child abuse or neglect case, [the petitioner] to prove ‘conditions existing at 

the time of the filing of the petition . . . by clear and convincing proof.’” (internal citations 

omitted)). The lower court found there was clear and convincing evidence that the father 

sexually abused the child. The evidence, specifically, was that the child spontaneously 

disclosed to the therapist, on two occasions, that she had been sleeping with her grandfather 

and grandmother and that her father took her out of the bed in the middle of the night and 

took her to the other room and touched her “pee pee.” The therapist stated that the child 

motioned toward her private parts during these disclosures. Further, the evidence disclosed 

that the child begged not to be sent back to her father’s house. Significantly, the therapist 

indicated that she did not think the child was being prompted or influenced to make such 

statements. The occurrences when the child refused to talk or stated “no” or “I don’t know” 

to inquiries concerning the relationship with her father were explained as instances when the 

child was confused, not that the child was recanting her disclosures. Based on the child’s 

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disclosures to her therapist, the child’s fear attached with visiting her father, and the fact that 

contact with the father caused the child’s behavior to regress, the father’s parental rights were 

terminated. 

We are cognizant that termination of parental rights is an extreme, but 

sometimes necessary, step to protect a child when there is no hope that the offending parent’s 

behavior will change. See Syl. pt. 4, In the Matter of Jonathan P., 182 W. Va. 302, 387 

S.E.2d 537 (1989) (“‘Termination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, W. Va. Code, 49–6–5 

[1977] 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) [1977] 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).”). The record in the present case reveals that the 

father, because of medication he takes for injuries, cannot care for the child on his own. He 

lives with his parents; therefore, the child was cared for by the paternal grandparents much 

of the time when she was with her father. The grandmother’s care was found to be troubling 

in one of the previous petitions, and the father was specifically ordered that the child was not 

allowed to be with his mother, the child’s grandmother. Not only did the father not follow 

through with this order, he left the child alone with her grandmother. Significantly, the 

underlying testimony was that the child’s severe behavioral issues improved under the 

mother’s care and regressed considerably after visits with her father. Because this case 

represents the third petition that had been filed regarding this child, it is clear to this Court 

that the father has been provided numerous opportunities to comply with court orders and 

that his noncompliant behavior illustrates his lack of respect for such orders that were put 

into place to protect his child. Significantly, the father has not admitted to sexually abusing 

the child. There are no services to be provided to a sexual abuser when the abuser fails to 

admit the actions. See West Virginia Dep’t of Health & Human Res. v. Doris S., 197 W. Va. 

489, 498, 475 S.E.2d 865, 874 (1996) (stating that failure to acknowledge existence of 

problem results in making problem untreatable and improvement period an exercise in futility 

at child’s expense). 

Despite the finding of sexual abuse of the child by the father, the guardian 

seeks a remand of this case for a consideration of post-termination visitation. We find this 

request in contravention of the evidence that the child’s behavior regressed markedly after 

visits with her father. See Syl. pt, 5, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 

(1995) (“When parental rights are terminated due to neglect or abuse, the circuit court may 

nevertheless in appropriate cases consider whether continued visitation or other contact with 

the abusing parent is in the best interest of the child. Among other things, the circuit court 

should consider whether a close emotional bond has been established between parent and 

child and the child’s wishes, if he or she is of appropriate maturity to make such request. The 

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evidence must indicate that such visitation or continued contact would not be detrimental to 

the child’s well being and would be in the child’s best interest.”). In Honaker v. Burnside, 

182 W. Va. 448, 452-53, 388 S.E.2d 322, 326 (1989), we stated that “a child’s best interests 

must be the primary standard by which his rights to continued contact with other significant 

figures in his life are to be determined.” In the instant case, it has been shown that the father 

has an inability to provide proper care on his own to the child because of medications needed 

by the father. The father’s attempt to parent the child included leaving the child with the 

child’s grandparent, despite the lower court’s order that the child not be alone with the 

grandparent. Importantly, the child disclosed to her therapist sexual abuse by her father, 

which the circuit court found was proved by clear and convincing evidence. Under the facts 

of this case, there is no basis upon which to remand the case for a determination of posttermination visitation, and we decline to do so. 

For the foregoing reasons, we affirm the circuit court’s termination of the 

father’s parental rights to the minor child at issue herein. 

Affirmed. 

ISSUED: March 6, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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