STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In re: Z.N., D.N., and A.P. September 25, 2017 

No. 17-0421 RORY L. PERRY II, CLERK (Mineral County 16-JA-11, 16-JA-12, & 16-JA-13) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother M.P., by counsel Jeremy B. Cooper, appeals the Circuit Court of 

Mineral County’s March 3, 2017, order terminating her parental rights to Z.N., D.N., and A.P.1 

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

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

(“guardian”), Meredith H. Haines, 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 terminating her 

parental rights and in holding a hearing on her request for post-termination visitation without the 

presence of her counsel. 

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

boyfriend, A.P.’s father, alleging that the parties abused the children, Z.N., D.N., and A.P. 

According to the petition, Z.N. presented at the local hospital emergency room with facial 

bruising and bruising to his penis and groin. Petitioner told medical personnel that she did not 

know the cause of the child’s injuries and suggested that “a spirit followed them home” and 

caused the Z.N.’s injuries. She also suggested that Z.N. may have been injured by wearing a 

flotation device while playing in a pool. The treating physician stated that petitioner’s 

explanations were not consistent with the child’s injuries. Z.N. was interviewed by staff at the 

Mineral County Child Advocacy Center (“CAC”) and told the interviewer that petitioner told 

him to say that her boyfriend “had not done anything.” Z.N. disclosed that he told a family 

member that the boyfriend struck him on his penis. 

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). 

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The children were removed from petitioner’s custody on June 14, 2016. The circuit court 

held a preliminary hearing on June 21, 2016, and found probable cause to believe that the 

children were abused and neglected. The children were returned to petitioner’s custody in July of 

2016 upon her agreement with the DHHR that she would not allow contact between her 

boyfriend and the children. 

In October of 2016, the children were removed from the petitioner’s custody again 

following a second CAC interview wherein two of the children disclosed that the boyfriend had 

physically and sexually abused them while in petitioner’s custody. The children indicated that 

they were afraid of the boyfriend and disclosed that petitioner was aware of the abuse but 

allowed the boyfriend to have continued contact with the children despite her agreement with the 

DHHR. Z.N. also disclosed that he told petitioner that the boyfriend was physically and sexually 

abusing him. On October 19, 2016, the DHHR filed an amended petition against petitioner and 

the boyfriend. The circuit court held a preliminary hearing and again found probable cause to 

believe that the children were abused and neglected. Petitioner was granted supervised visitation. 

In January of 2017, after a series of continuances to facilitate discovery, the circuit court 

held an adjudicatory hearing wherein the investigating West Virginia State Trooper testified that 

he was present at Z.N.’s CAC interview. The trooper testified that the child stated in the 

interview that petitioner’s boyfriend grabbed him by the genitals, squeezed them, and “would not 

let go.” The child also disclosed in the interview that petitioner’s boyfriend stuck the boyfriend’s 

penis in the child’s mouth and that he witnessed the boyfriend stick his penis in the child’s 

brother, D.N’s, mouth. The child advocate who conducted the children’s CAC interviews 

testified that Z.N. initially stated that petitioner’s boyfriend did not hit him, but later stated that 

petitioner told him to say this. She also testified that the child had bruising on his face, stomach, 

back, and genitals. She further testified that Z.N. likewise disclosed to her that petitioner’s 

boyfriend grabbed him by the genitals and stuck his penis in the child’s mouth. 

The children also disclosed that the parties engaged in domestic violence in their 

presence. A DHHR worker testified that petitioner’s boyfriend did not attend most of the 

multidisciplinary team (“MDT”) meetings. She also testified that she reviewed several of the 

petitioner’s cellular telephone text messages and confirmed that she and the boyfriend were still 

in contact. Petitioner stood silent as to the allegations in the petition and offered no evidence on 

her behalf. At the close of evidence, the circuit court found by clear and convincing evidence that 

petitioner and the boyfriend abused the children. The circuit court specifically found that Z.N. 

disclosed that the boyfriend physically and sexually abused Z.N. and D.N. and that Z.N. 

disclosed this to petitioner, but that she did not “take the disclosure seriously.” Following her 

adjudication, petitioner filed a written motion requesting a post-adjudicatory improvement 

period. 

In February of 2017, the circuit court held a dispositional hearing. At the hearing, the 

circuit court considered petitioner’s motion for an improvement period and the DHHR’s motion 

to terminate petitioner’s parental rights. Petitioner again stood silent and presented no evidence 

on her behalf. The circuit court found that petitioner knowingly allowed her children to be 

exposed to abuse, encouraged them to lie about the abuse, and continued her relationship with 

the boyfriend despite the abuse allegations and the abuse and neglect proceedings. The circuit 

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court also found that there was no reasonable likelihood petitioner could substantially correct the 

conditions of abuse and neglect, terminated her parental rights to the children, and denied her 

motion for a post-adjudicatory improvement period, by order entered on March 3, 2017.2 It is 

from that 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. 

Petitioner argues on appeal that the circuit court erred in terminating her parental rights 

without imposing a less-restrictive dispositional alternative. We disagree. West Virginia Code § 

49-4-604(a)(6) provides that circuit courts are directed to terminate parental rights upon findings 

that there is “no reasonable likelihood that the conditions of neglect or abuse can be substantially 

corrected in the near future” and that termination is necessary for the children’s welfare. West 

Virginia Code § 49-4-604(c)(3) provides that no reasonable likelihood that the conditions of 

abuse or neglect can be substantially corrected exists when “ ‘[t]he abusing parent . . . ha[s] not 

responded to or followed through with a reasonable family case plan or other rehabilitative 

efforts[.]” We have also held that “[t]ermination . . . may be employed without the use of 

intervening less restrictive alternatives when it is found that there is no reasonable likelihood . . . 

that conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 7, in part, In re Katie 

S., 198 W.Va. 79, 479 S.E.2d 589 (1996). 

In the instant case, it is clear that there was no reasonable likelihood that petitioner could 

have substantially corrected the conditions of abuse or neglect in the near future. Petitioner stood 

silent as to the allegations of sexual abuse and also refused to address the issues of abuse. It is 

clear from the record that petitioner maintained a relationship with her physically and sexually 

2

The parental rights of all the parents of all the children were terminated below. 

According to the guardian, the children were all placed in the same foster home and the 

permanency plan is adoption therein. 

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abusive boyfriend throughout the proceedings below and facilitated his contact with the children, 

despite her awareness of his physical and sexual abuse of her children. This Court has stated that 

in 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)). Because petitioner failed to acknowledge her 

boyfriend’s abusive conduct and continued her relationship with him despite such conduct, it is 

clear that the circuit court correctly found that there was no reasonable likelihood the conditions 

of abuse could be substantially corrected. Moreover, the circuit court also found that termination 

was necessary for the children’s welfare. As previously stated, pursuant to West Virginia Code § 

49-4-604(a)(6), circuit courts are directed to terminate parental rights upon these findings. 

Petitioner next argues on appeal that the circuit court erred in holding a hearing on 

petitioner’s oral motion for post-termination visitation in the absence of her counsel. Petitioner 

argues that the denial of her request for post-termination visitation was “based solely on a 

therapist’s letter.” Upon our review, the Court finds this assignment of error to be without merit. 

We have explained that 

a parent whose rights have been terminated pursuant to an abuse and neglect 

petition may request post-termination visitation. Such request should be brought 

by written motion, properly noticed for hearing, whereupon the court should hear 

evidence and arguments of counsel in order to consider the factors established in 

Syllabus Point 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995), 

except in the event that the court concludes the nature of the underlying 

circumstances renders further evidence on the issue manifestly unnecessary. 

In re Marley M., 231 W.Va. 534, 544, 745 S.E.2d 572, 582 (2013). Here, this was not done. 

Moreover, we have previously held that 

[w]hen 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 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. Syl. Pt. 5, In re Christina L., 194 W.Va. 

446, 460 S.E.2d 692 (1995). 

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Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002). In this case, petitioner failed 

to provide evidence to contradict the circuit court’s finding that continued visitation was not in 

the children’s best interests. Petitioner also failed to acknowledge the physical and sexual abuse 

of her children and maintained continued contact with the children’s abuser. Further, petitioner 

clearly placed her relationship with the boyfriend over the safety of her children. 

Rule 15 of the West Virginia Rules of Procedure for Child Abuse and Neglect 

Proceedings provides, in part, that “[t]he effect of entry of an order of termination of parental 

rights shall be . . . to prohibit all contact and visitation between the child who is the subject of the 

petition and the parent who is the subject of the order.” As such, petitioner’s parental rights were 

properly terminated at the close of the disposition hearing. Accordingly, we find no error in the 

circuit court's denial of post-termination visitation with petitioner. 

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

March 3, 2017, order is hereby affirmed. 

Affirmed. 

ISSUED: September 25, 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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