STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In re: S.B. and A.W. FILED 

June 16, 2017 No. 17-0220 (Kanawha County 16-JA-433 & 16-JA-434) RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

MEMORANDUM DECISION 

Petitioner Father C.W., by counsel Rick F. Holroyd, appeals the Circuit Court of 

Kanawha County’s February 9, 2017, order terminating his parental rights to S.B. and A.W.1 The 

West Virginia Department of Health and Human Resources (“DHHR”), by counsel Michael L. 

Jackson, filed a response in support of the circuit court’s order. The guardian ad litem 

(“guardian”), Jennifer N. Taylor, 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 finding that (1) he 

failed to improve during the proceedings and (2) the DHHR provided reasonable services. 

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 August of 2016, the DHHR filed an abuse and neglect petition against petitioner and 

the mother. According to the petition, a family court previously granted custody of the children 

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). Additionally, although the record indicates that petitioner is 

not the biological father of A.W., he presents assignments of error addressing both children in his 

petition for appeal. Moreover, the circuit court’s order does not clearly delineate what rights, if 

any, petitioner possessed in regard to A.W., as that child’s stepfather. However, the circuit 

court’s dispositional order, in several instances, addresses petitioner in relation to both children. 

For example, the dispositional order states that “[petitioner is] presently unwilling or unable to 

provide adequately for the children’s needs.” The circuit court ultimately stated only that “the 

parental rights of . . . [petitioner] are hereby permanently TERMINATED.” Because it is 

unclear whether the circuit court terminated petitioner’s parental rights to S.B. alone or if it 

terminated petitioner’s rights to both S.B., as her biological father, and his rights to A.W., as her 

stepfather, and out of an abundance of caution, this memorandum decision affirms the circuit 

court’s findings in their entirety as they relate to both children. 

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to their maternal grandmother as a result of allegations of abuse and neglect before the family 

court that resulted in a referral of the matter to the circuit court. According to the guardian, the 

family court proceedings documented extensive DHHR involvement with the parents, as 

evidenced by multiple case plans, safety plans, and other records that reflected several years of 

DHHR services designed to remedy the conditions in the home. The petition further alleged that 

the DHHR’s subsequent investigation of the home revealed the parents’ physical and mental 

abuse of the children. At the subsequent preliminary hearing, the circuit court ordered 

psychological evaluations and counseling for the parents and the children. 

In September of 2016, the circuit court held an adjudicatory hearing, during which a 

Child Protective Services (“CPS”) worker testified that ten-year-old S.B. told him that petitioner 

once shocked her with a Taser. The child recalled specific details of the event, including the 

location, a description of the Taser, and the fact that the parents later activated the Taser in front 

of the children as a threat to get them to behave. The CPS worker also testified to the children’s 

statements regarding the various forms of punishment petitioner subjected them to, including 

forcing the children to lie on their stomachs while petitioner struck their feet with a hairbrush; 

forcing the children to stand with a bar extended over their heads for long periods; and dragging 

the children by their hair. The CPS worker further testified that both children expressed fear of 

the Taser being used on them. According to the CPS worker, the parents denied the allegations, 

although they confirmed they owned a Taser. The CPS worker also testified that the children 

confirmed these allegations in counseling sessions with a therapist. Another CPS worker testified 

to the fact that S.B. refused to participate in visits with petitioner because she feared him, in 

addition to the therapist’s recommendation to stop the visits. Petitioner testified and denied the 

allegations. The circuit court also heard from the children’s maternal grandmother, who testified 

that she filed a petition for temporary custody in the family court after the children informed her 

of the parents’ abuse. Ultimately, the circuit court found that petitioner abused and neglected the 

children. The circuit court further barred petitioner from visits with the children until he 

completed treatment, as recommended by a psychiatrist. Petitioner thereafter moved for a postadjudicatory improvement period. 

In December of 2016, the DHHR submitted a court summary that indicated that petitioner 

had not yet contacted the DHHR to initiate any services. The following month, the guardian filed 

a report that noted petitioner’s psychological report stated that he failed to accept responsibility 

for his actions. The psychological report also included a poor prognosis for petitioner, given that 

it was “unlikely that any type or amount of intervention would reliably reduce [his] risk of future 

child maltreatment.” 

In January of 2017, the circuit court held a dispositional hearing, during which both the 

DHHR and the guardian recommended termination of petitioner’s parental rights. The DHHR 

reiterated that petitioner failed to contact the DHHR to initiate services, including parenting and 

reunification therapy. Petitioner also failed to request any additional services. Additional 

testimony established that both children indicated that they did not want to participate in visits 

with petitioner. Ultimately, the circuit court denied petitioner’s motion for a post-adjudicatory 

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improvement period and terminated his parental rights to the children.2 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. 

First, the Court finds no error in the circuit court’s ruling that petitioner failed to show 

improvement in his ability to properly parent the children during the proceedings below. In 

support of this assignment of error, petitioner argues that the circuit court’s denial of visitation 

prevented him from establishing his bond with the children. Petitioner additionally argues that it 

was unreasonable to require him to obtain treatment prior to receiving visitation with the children 

because of the short timeframe of the case. Moreover, petitioner argues that the DHHR’s failure 

to provide him with services prevented him from establishing improvement. According to 

petitioner, the circuit court’s finding was erroneous, and he should have been entitled to a formal 

improvement period. We do not agree. 

The record is clear that visitation was denied because it was not in the children’s best 

interests. While petitioner argues that he should have received visitation in order to establish his 

ability to parent the children, “‘the best interests of the child is the polar star by which decisions 

must be made which affect children.’ Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d 

866, 872 (1989) (citation omitted).” Kristopher O. v. Mazzone, 227 W.Va. 184, 192, 706 S.E.2d 

381, 389 (2011). Here, the children’s therapist recommended that petitioner not visit with the 

children because of the detrimental effects to them. Moreover, the children themselves expressed 

fear over visitation with petitioner and asked not to participate. As such, it is clear that the circuit 

court did not err in denying petitioner visitation with the children. 

2

According to the parties, the parental rights of all parents to all children were terminated 

below. According to the guardian, the children are placed in the home of their maternal 

grandmother with a goal of adoption therein. 

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Further, petitioner’s reliance on the DHHR’s alleged failure to contact him in order to 

provide services is misplaced. West Virginia Code § 49-4-604(c)(3) clearly indicates that a 

situation in which there is no reasonable likelihood the conditions of abuse and neglect can be 

substantially corrected includes one in which 

[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, as evidenced by the continuation or insubstantial 

diminution of conditions which threatened the health, welfare or life of the child . 

. . . 

As is clear from this statute, petitioner was required to follow through with the services the 

DHHR offered. The record on appeal shows that the DHHR offered several services, including 

therapy and counseling. However, petitioner’s failure to contact the DHHR to initiate these 

services precluded him from ever beginning them, let alone following through with the services 

such that the conditions of abuse and neglect could be corrected. As such, it is clear that the 

circuit court did not err in finding that petitioner failed to show improvement during the 

proceedings, as the record is devoid of petitioner undergoing any services designed to remedy 

the conditions of abuse and neglect. Moreover, this evidence also supports the circuit court’s 

denial of 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 if “the [parent] demonstrates, by clear and convincing 

evidence, that the [parent] is likely to fully participate in the improvement period . . . .” Here, 

petitioner failed to comply with the minimal requirement that he contact the DHHR to initiate 

services. As such, the record is clear that petitioner could not establish that he was likely to fully 

participate with the terms and conditions of a post-adjudicatory improvement period, given his 

complete lack of participation in the proceedings. Accordingly, we find no error in the circuit 

court’s denial of petitioner’s motion. 

Next, we find no error in the circuit court’s finding that the DHHR provided reasonable 

services to petitioner. As outlined above, the DHHR offered petitioner multiple services, 

although petitioner willfully failed to contact the DHHR so that he could comply with the same. 

Further, in support of his assignment of error, petitioner argues that the circuit court should have 

required the DHHR to return the children to the home so that he could show that the allegations 

against him were “nothing more than allegations.” However, petitioner fails to cite to any 

authority that would require the DHHR to return the children to his home after the circuit court 

adjudicated him as an abusing parent and substantiated the allegations in the petition. Moreover, 

as set forth above, it was established that visitation was not in the children’s best interests, so it 

stands to reason that returning them to the home would have similarly been detrimental to their 

wellbeing. In fact, in its dispositional order, the circuit court specifically found that 

“[c]ontinuation in the home with the abusing parents is not in the children’s best interests 

because their safety cannot be assured.” As such, we find no error in the circuit court’s refusal to 

return the children to petitioner’s home. 

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Further, to the extent that petitioner argues on appeal that termination of his parental 

rights was inappropriate because the circuit court did not require the DHHR to provide services 

or grant him an improvement period, we find no error. Based, in part, on petitioner’s failure to 

participate, even minimally, in services, the circuit court found that there was no reasonable 

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

circuit court further found that petitioner continued to deny the allegations at the dispositional 

hearing, which evidenced his refusal to accept responsibility for the abuse and neglect in the 

home. 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 . . 

. . 

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)). The circuit court further found that termination of 

petitioner’s parental rights was necessary for the children’s welfare. Pursuant to West Virginia 

Code § 49-4-604(b)(6), circuit courts are directed to terminate a parent’s parental rights upon 

such findings. Moreover, we have previously held that 

“[t]ermination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, W. Va.Code [§] 

49-6-5 [now West Virginia Code § 49-4-604] . . . 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) [now West Virginia Code 

§ 49-4-604(c)] . . . 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). 

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). For these reasons, we find no 

error in the circuit court’s termination of petitioner’s parental rights. 

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

February 9, 2017, order is hereby affirmed. 

Affirmed. 

ISSUED: June 16, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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