STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In re: I.W. and K.W. April 12, 2016 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS No. 15-1097 (Roane County 15-JA-20 & 15-JA-21) OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father R.W., by counsel Andrew S. Ryan, appeals the Circuit Court of Roane 

County’s October 13, 2015, order terminating his parental rights to I.W. and K.W. The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, 

filed its response in support of the circuit court’s order. The guardian ad litem, Anita Harold 

Ashley, filed a response on behalf of the children also in support of the circuit court’s order. On 

appeal, petitioner alleges that the circuit court erred in denying his motion for a post-adjudicatory 

improvement period.1 

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 April of 2015, the DHHR filed an abuse and neglect petition against the parents and 

alleged that they failed to properly supervise the children, two-year-old I.W. and three-year-old 

K.W. Specifically, the petition alleged that the mother left the children with inappropriate 

caregivers, including her mentally ill and violent cousin, and that the children were repeatedly 

found in and along the roadway unsupervised. The petition also alleged that on one occasion, 

K.W. consumed medication prescribed to the mother’s cousin and was taken to the emergency 

room for treatment. As to petitioner, the petition alleged that he failed to supervise the children 

by virtue of his incarceration for attempt to commit wanton endangerment with a firearm. 

According to the DHHR, the mother was the victim of petitioner’s crime. The circuit court held a 

1

We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and 

recodified during the 2015 Regular Session of the West Virginia Legislature. The new 

enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and 

became effective ninety days after the February 19, 2015, approval date. In this memorandum 

decision, we apply the statutes as they existed during the pendency of the proceedings below. 

Further, the Court notes that while petitioner lists his assignments of error as including an 

allegation that the circuit court erred in terminating his parental rights, the argument section of 

his brief contains assignments of error concerning only the circuit court’s denial of his motion 

for an improvement period. As such, the Court will address only this lone assignment of error in 

accordance with Rule 10(c) of the West Virginia Rules of Appellate Procedure. 

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preliminary hearing that same month. Petitioner did not attend but was represented by counsel. 

The circuit court found imminent danger to the children and continued custody with the DHHR. 

In June of 2015, the circuit court held an adjudicatory hearing, during which petitioner 

stipulated to neglect for failure to supervise the children. The following month, petitioner filed a 

motion for a post-adjudicatory improvement period. In August and September of 2015, the 

circuit court held hearings to address petitioner’s outstanding motion and disposition. At the 

hearings, the circuit court was presented with petitioner’s psychological and parental fitness 

evaluation. This evaluation concluded that petitioner accepted no responsibility for his actions 

and, in fact, insisted that he was a victim of circumstance. Further, a DHHR employee testified 

that petitioner did not begin attending the required parenting education classes until after the 

initial dispositional hearing and missed appointments after initiating the service. It was also 

established that petitioner failed to submit to drug screens until shortly before disposition. 

According to the DHHR, aside from completing a psychological evaluation, petitioner failed to 

fully comply with a single service offered. At the conclusion of the final hearing, the circuit court 

denied petitioner’s motion for an improvement period and terminated his parental rights to the 

children. It is from the dispositional 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, the Court finds 

no error in the proceedings below. 

Specifically, the Court finds no error in the circuit court denying petitioner’s motion for a 

post-adjudicatory improvement period. Pursuant to West Virginia Code § 49-4-610(2)(B), a 

circuit court may grant a parent a post-adjudicatory improvement period when the parent 

“demonstrates, by clear and convincing evidence, that the respondent is likely to fully participate 

in the improvement period . . . .” The record is clear that petitioner failed to satisfy this burden. 

While petitioner argues on appeal that he acknowledged and admitted his mistakes as a parent 

and participated in the services offered, the Court does not agree. In fact, the record shows that 

petitioner not only failed to comply with services as directed, but he also failed to accept 

responsibility for his actions and blamed others for his failure to comply. 

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According to the record, as of July of 2015, petitioner had not yet submitted for any drug 

screens and failed to appear for his scheduled psychological evaluation. Further, petitioner failed 

to attend a multidisciplinary team (“MDT”) meeting, despite his presence at the adjudicatory 

hearing when the MDT meeting was scheduled. While petitioner argues that he failed to 

participate in services because the DHHR failed to set them up, the record simply does not 

support this argument. This is especially true in light of testimony at the dispositional hearings in 

August and September of 2015 that established that petitioner was still not in compliance with 

the services offered. Although it is true that petitioner attended one parenting class, his provider 

testified that he failed to attend the next two scheduled classes. Most importantly, the record is 

clear that petitioner was told that compliance with drug screens was a prerequisite to visitation 

with his children. As such, his willful refusal to submit to drug screens during an extended period 

below prevented him from visiting with the children during the pendency of the proceedings. 

Again, petitioner failed to acknowledge that his own actions prevented him from interacting with 

his children, as he testified that he attempted to see them but Child Protective Services denied 

him visitation. 

The record is also clear that petitioner failed to accept responsibility for his actions and 

their impact on the children, as his psychological evaluation found that petitioner “accepted no 

responsibility for his actions and insists he had been wronged and is a victim of circumstances.” 

The psychologist that evaluated petitioner also testified at disposition and indicated that 

petitioner “tended to blame others for . . . all the negative circumstances that he was under.” 

Further, petitioner was “hostile and belligerent” to staff while undergoing his evaluation, which 

resulted in a poor prognosis for parental improvement. This was based, in part, upon petitioner 

scoring high for potential future child abuse. Ultimately, his evaluator found that “there’s no 

reason to think that services are going to improve [petitioner’s] attitude toward the situation and 

his likelihood of being a better parent” because of his failure to accept responsibility for his 

actions. 

This is further supported by petitioner’s own testimony, wherein he stated that he did not 

commit the crime to which he ultimately pled guilty and for which he was incarcerated when 

these proceedings began. According to petitioner, he simply pled guilty to the charge because the 

criminal proceedings failed to resolve in a timely fashion and he wished them to end. Despite his 

conviction for this crime, petitioner continued to deny having committed the underlying acts and 

argues that his incarceration and subsequent failure to supervise the children was not a willful 

act. The Court, however, does not agree. Petitioner willfully committed acts that resulted in his 

incarceration and caused his children to receive inappropriate supervision. While petitioner 

argues that the conditions of abuse and neglect alleged against him were remedied upon his 

release from incarceration, the record is clear that even after his release, petitioner failed to 

acknowledge his inability to properly care for the children or attempt to remedy these conditions. 

In fact, petitioner continued to commit criminal acts beyond his release, as evidenced by his 

arrest for driving while intoxicated in September of 2015. As such, it is clear that petitioner 

failed to establish that he was likely to fully participate in a post-adjudicatory improvement 

period. 

Additionally, we have previously held that 

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[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)). Based upon this holding, it is clear that 

petitioner’s failure to acknowledge the underlying conditions of abuse and neglect in the home 

rendered him unable to remedy those conditions. As such, we find no error in the circuit court 

denying petitioner’s motion for a post-adjudicatory improvement period. 

Finally, the Court finds no error in the circuit court’s finding that there was no reasonable 

likelihood that the conditions of abuse or neglect could be substantially corrected. On appeal, 

petitioner erroneously argues that such a finding is a prerequisite to denying a parent an 

improvement period. As noted above, in order to deny a parent an improvement period, West 

Virginia Code § 49-4-610 requires only a finding that the parent is not likely to fully participate 

in the same. However, to the extent that petitioner argues the circuit court erred in finding there 

was no reasonable likelihood that the conditions of abuse or neglect could be substantially 

corrected, we disagree. 

Pursuant to West Virginia Code § 49-4-604(c)(3), there is no reasonable likelihood the 

conditions of abuse or neglect can be substantially corrected when “[t]he 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.” Based upon petitioner’s willful refusal to acknowledge 

the conditions of abuse and neglect in the home, coupled with his failure to comply with the 

services offered, the circuit court had sufficient evidence upon which to find there was no 

reasonable likelihood petitioner could substantially correct the conditions of abuse and neglect. 

For the foregoing reasons, we find no error in the decision of the circuit court, and its 

October 13, 2015, order is hereby affirmed. 

Affirmed. 

ISSUED: April 12, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

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Justice Margaret L. Workman
 

Justice Allen H. Loughry II
 

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