### STATE OF WEST VIRGINIA FILED

SUPREME COURT OF APPEALS October 19, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA In re K.B., E.B., and L.B.

No. 18-0401 (Mercer County 15-JA-057-WS, 15 -JA-058-WS, and 15-JA-059-WS)



### MEMORANDUM DECISION

Petitioner Father A.B., by counsel David B. Kelley, appeals the Circuit Court of Mercer County’s April 3, 2018, order terminating his parental rights to K.B., E.B., and L.B. 1 The West Virginia Department of Health and Human Res ources (“DHHR”), by counsel S.L. Evans, filed a response in support of the circui t court’s order and a supplemental appendix. The guardian ad litem (“guardian”), Catherine Bond Wallace, filed a response on behalf of the children in support of the circuit court’s order. On appeal, petitione r argues that the circuit court erred in denying his motion to require L.B. to testify, in denyi ng his motion for an improvement period, and subsequently 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

In May of 2015, the DHHR filed a petition a lleging that petitioner and the mother engaged in domestic violence in front of the ch ildren and that L.B., age seven, was injured as a result. Further, the DHHR alleged that petitioner and the mother participated in an attempted robbery while L.B. was with them. According to the DHHR, petitioner and the mother were charged with attempted first-degree r obbery as a result of their conduct.

In June of 2015, the circuit c ourt held a status hearing a nd ordered a parental fitness evaluation. Later, the parental fitness evaluation was returned and petitioner’s prognosis for improvement was determined to be extremely poor to nonexistent. The evaluation found that petitioner exposed the children to drug use, domestic violence, the perpetration of violent crimes,

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).

1and long-term neglect. Yet, petitioner did not accep t that his actions had a significant negative effect on the children. Further, the evaluation noted that petiti oner’s test scores suggested a significant danger for abusive behaviors. The DHHR moved to introduce L.B.’s testimony through a forensic interviewer. Petitioner responded with a mo tion to require the child’s testimony. Ultimately, the circuit court denied pe titioner’s motion and ordered that L.B. would not be required to testify in person.

The circuit court held the adjudicatory hearing in February of 2016, and petitioner renewed his motion for L.B. to testify in pers on. The circuit court again denied petitioner’s motion. The DHHR presented testimony from a Me rcer County police officer, L.B.’s forensic interviewer, and the mother. Petitioner also tes tified and indicated that he intended to plead guilty to his criminal charges. During their test imony, both parents admitted that L.B. was in the car during the attempted robbery. Ultimately, th e circuit court adjudicated petitioner as an abusing parent. Petitioner moved for a post-ad judicatory improvement period and the DHHR objected. The circuit court took the motion under advisement a nd scheduled a dispositional hearing.

In August of 2016, the circuit court held a dis positional hearing and heard evidence from the DHHR and petitioner. According to the DHHR, petitioner was sentenced to a “not less than ten years” of incarceration as a result of hi s guilty plea. As such, petitioner was unable to participate in an improvement period and would be unable to participate in the near future. Petitioner testified that his parole date was October of 2017. Petitioner also admitted to prior

CPS involvement in which he received services and complied with those services. The circuit court reasoned that petitioner w ould not be released from incar ceration in a reasonable time and that his inability to participate in his impr ovement period caused there to be no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future. However, the circuit cour t considered that the mother was currently participating in an improvement period and that it wa s not necessary to terminate peti tioner’s parental rights if she were able to improve and properly care for the children. Accordingly, the circuit court terminated petitioner’s custodial rights only a nd noted that if the mother w ould later fail to improve, “it would be in the best interest of the children that the [circuit] court terminate [petitioner’s] parental rights.”

The circuit court con tinued to hold review hearings for the mother throughout 2017 and up until March of 2018. According to the parties, the mother completed a substance abuse rehabilitation program, but relapsed in Nove mber of 2017 and became uncooperative with the DHHR. The mother eventually relinquished her parental rights in March of 2018.

Petitioner was released on paro le in November of 2017. Howe ver, petitioner was charged with a DUI in February of 2018 and incarcerated as a result. Petitioner was still incarcerated when the circuit court held the final dispositio nal hearing in March of 2018. Petitione r testified

that he felt confident that he would be releas ed from incarceration in two weeks, but that he could be held longer. Petitioner’s cousin testifie d that petitioner visited with the children a few times since he was released on parole and that vi sitation went well when it occurred. Ultimately, the circuit court relied on its prior findings that petitioner was unable to participate in a family case plan since the filing of the petition and found that petitioner was again unable to participate

2due to his incarceration. Accordingl y, the circuit court terminated his parental rights in its April 3, 2018, order. Petitioner now appeals that order. 2

The Court has previously establishe d 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 sh all 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. Th ese findings shall not be set aside by a reviewing court unless cl early erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the revi ewing 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 diffe rently, 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 th at the circuit court erred in denying his motion to require in court testimony from L.B. In support, petitioner argues that the only relevant evidence could be obtained through L.B.’s statement and, therefore he was entitled to have L.B. testify. Additionally, petitioner asserts that, pursuant to West Virginia Code § 62-6B-3(d), the circuit court was required to obtain an e xpert opinion as to the emotiona l harm L.B. might have suffered through testifying and that the failure to do so violated hi s due process rights. 3 However,

2 The mother voluntarily relinquished her parent al rights. According to the parties, the permanency plan for the children is adoption in their current relative foster placement. Further, the parents are allowed post-termination visitati on at the discretion of the current foster placement.

3 West Virginia Code § 62-6B-3(d) provides:

In determining whether to allow a child witness to testify through live, closedcircuit television the court shall appoint a psychiatrist or a licensed psychologist with at least five years clinical experien ce who shall serve as an advisor or friend of the court to provide the court with an expert opinion as to whether, to a reasonable degree of profe ssional certainty, the child witness will suffer severe emotional harm, be unable to testify based solely on being in the physical presence of the defendant while testif ying and that the child witness does not evidence signs of being s ubjected to undue influence or coercion. The opinion of the psychiatrist or licensed psychologist sh all be filed with the circuit court at

(continued . . . )

3petitioner fails to address Rule 8(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, which provides that “there shall be a rebuttable presumption that the potential psychological harm to the child outweighs the necessity of the child’s testimony and the

court shall exclude this testim ony if the potential psychological ha rm to the child outweighs the necessity of the child’s testimony.” On appeal, as in the proceedings below, petitioner makes no effort to argue that the necessity of the chil d’s testimony outweighs th e potential psychological

harm that the child could suffer. Petitioner a sserts no specific evidence that L.B.’s testimony would provide. Additionally, petitioner admitted that L.B. was present for the robbery during his testimony. Further, Rule 8(a) provides that th e child’s testimony may be excluded if “the equivalent evidence can be procured though other reasonable efforts.” The forensic interviewer of the child testified regarding the child’s stat ement and demeanor at the time of her interview and petitioner was afforded an opportunity to cro ss-examine the interviewer. Therefore, because of the child’s statement, the circuit court’s f ound the child’s direct testimony was not necessary because it was easily available through the forensic interviewer. Accordingly, we find that the circuit court did not err in denying petiti oner’s motion to require L.B to testify.

Petitioner also argues that the circuit court erred in denying his motion for an improvement period and subsequently terminating his parental rights. We begin by noting that the decision to grant or deny an improvement pe riod 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 pa rent 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 gran t an improvement period with in the applicable statutory requirements.”). We have also held that a pare nt’s “entitlement to an improvement period is conditioned upon the ability of the [parent] to demonstrate ‘by clear and convincing evidence, that the [parent] 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).

The circuit court did not err in denying peti tioner’s motion for an improvement period because he could not participate in an improveme nt period. Petitioner was incarcerated since the outset of the case and unable to meaningfully participate in services with the DHHR. Further, the

record contains no evidence that petitioner attempted to begin services with the DHHR once he was released on parole. Petitioner failed to presen t clear and convincing ev idence that he would substantially participate in an improvement peri od. Therefore, the circu it court did not err in denying his motion for an improvement period.

Additionally, the circuit court di d not err in terminating petiti oner’s parental rights. West Virginia Code § 49-4-604(b)(6) provides that a circuit court may terminate parental rights upon findings that “there is no reasonable likelihood th at the conditions of neglect or abuse can be substantially corrected in the near future” and that termination is necessary for the welfare of the

least thirty days prior to the final hear ing on the use of live, closed-circuit

television and the defendant shall be a llowed to review the opinion and present evidence on the issue by the use of an expert or experts or otherwise.

4children. Additionally, West Virginia Code § 49-4-604(c)(3) provides that no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected exist when the “abusing parent . . . [has] not responded to or followed through with a reasonable family case plan or other rehabilitative efforts[.]” As me ntioned above, petitioner was incarcerated and unable to participate in a case plan. Although peti tioner asserted that he attended classes while incarcerated, he continued to exhibit the same beha viors that led to the f iling of the petition. For example, despite being under the supervision of parole, petitioner was found to be driving under

the influence of alcohol and arre sted. Petitioner characterizes this parole violation as a small mistake, but the practical effect was his incarceration and further separation from his children. Finally, we have prev iously held that

“[c]ourts are not required to exha ust every speculative possibility of parental improvement . . . where it appears that the welfare of the child will be seriously threatened, and this is particul arly 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. Despite petitioner’s assertions that he wanted to remedy the conditions of abuse and negl ect, his continuous crimin al activity resulted in his incarceration and limited his ability to pare nt his children. In consideration of this pattern of activity, we find that the circ uit court did not err in termina ting petitioner’s pa rental rights.

For the foregoing reasons, we find no error in the decision of the circuit court, and its April 3, 2018, order is hereby affirmed.

Affirmed.

ISSUED : October 19, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Paul T. Farrell sit ting by temporary assignment

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating.

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