1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re B. A. and C.A.

No. 21

- 01 79 ( Kanawha County 20

- JA

- 434 and 20

- JA

- 435 )



### MEMORANDUM DECISION

Petitioner Mo ther T.A. , by counsel Kevin P. Davis , appeals the Circuit Court of Kanawha County’s February 1 2 , 2021 , order terminating h er parental rights to B.A. and C.A

. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey

and Brandolyn N. Felton

- Ernest , filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”)

, Matt Smith , filed a response on behalf of the child ren in support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in (1) adjudicating h er as an abusing parent, (2) denying h er request for a n improvement period, and (3) terminating h er parental righ ts

.

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 September of 20 20

, the DHHR filed a child abuse and neglect petition after performing an investigation pursuant to a family court matter involving guardianship of then twelve

- year

- old

B.A. and fourteen

- year

- old C.A. According to the DHHR, the children lived with the father and after he passed a way in May of 2020, the paternal au nt , M.W., applied for and was granted guardianship of the children. Petitioner contested the guardianship and received visitation privilege s with the children . The DHHR alleged that the children disclosed that petitioner

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). 

### FILED November 8, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 emotional ly and physical ly abuse d t hem during visits

. Specifically, C.A. reported that while she was visiting petitioner when she was eleven, petitioner’s ex

- husband raped her

, and petitioner denied the allegation when C.A. told her

. T he worker interviewed petitioner who denied any knowledge of th e sexual assault and also stated that she had not consistently seen the children in

over a year . At the preliminary hearing, the court ordered that petitioner participate in parenting and adult life skills classes, submit to drug screens, and exercise supervised visitations.

Shortly after the petition’s filing, C.A. and B.A. under went Children’s Advocacy Center (“CAC”) interview s at Charleston Area Medical C enter

. The forensic interview er drafted a summary regarding observations made during the interviews. C.A. disclosed severe emotional and physical abuse by petitioner, including yelling and screaming at her and B.A., smacking their arms, and whipping them with studded belts

. C.A. stated that petitioner emotionally abused them with insults and putdowns and that petitioner told the children they “ruined her life.” C.A. de scribed

details of the sexual assault that occurred in a trailer when she was eleven and stated that petitio ner’s ex

- husband was the perpetrator . S he explained that she had been staying with petitioner for a weekend and that petitioner was gone briefly while the assault took place. C.A.

stated that B.A

. did not witness the assault and that when she told petition er the same day

, petitioner refused to believe her and further refused to take her for medical care and evaluation stemming from the assault. C.A. explained that after the incident, she and B.A. only visited petitioner when required by court ordered visita tion. During B.A.’s interview, she disclosed similar physical and emotional abuse by petitioner such as being slammed into chairs and being grabbed by her wrists. B.A. stated that she did not like petitioner because she was mean

.

In late November of 2020, a visitation provider reviewed explicit and deplorable messages that C.A. received from a social media account appearing to belong to petitioner. The messages were threatening and insulating to B.A. and C.A.

, speci fic ally called C .A. a “whore” for the alleged sexual assault with petitioner’s ex

- husband

, and indicated that she burned the children’s baby pictures

. In response , the guardian requested that petitioner’s visits cease , and all supervised

visitations were stopped. That same month, the DHHR filed an amended complaint a lleg ing that M.W.’s husband was a registered sex

- offender with convictions from 2003 for two counts of first

degree sexual abuse and one count of attempted kidnapping. Accordingly , the DHHR re moved the

children from M.W.’s home and placed them together with a foster family

.

The circuit court held a contested adjudicatory hearing in Dece mber of 20 20 . The worker testified consistent with the allegations in the petition

, but also added that a criminal investigation had been opened due to C.A.’s disclosures of sexual assau lt . Next, the CAC forensic interviewer testified that she conducted interviews of B.A and C.A. during September of 2020 and that she drafted a summary after each interv iew . S he stated the C.A. explained that she had not primarily

liv ed with petitioner for the previous tw elve years, and that at the time of the sexual assault , C.A. and B.A. were only visiting for a weekend. During the visit, C.A. and B.A. were alone with

p etitioner’s ex

- husband while petitioner was out for a short time . C.A. stated that she was coloring and breaking crayons in half. Petitioner’s ex

- husband saw this, b ecame angry , and yelled at her to stop breaking the crayons. He then grabbed C.A. by her ha ir, dragged her to the bedroom, and sexually assaulted her. During this portion of the forensic interviewer’s testimony, petitioner3 interjected, “That’s false.” The forensic interviewer continued her testimony and stated that C.A.

described the sexual assa ult in detail and reported that the assailant threatened to kill her family if she told anyone. C.A. remembered sitting in the living room crying when petitioner came home, and that petitioner joked that C.A. must have been spanked. C.A. stated that she to ld her mother the same day as the assault and petitioner refused to believe her and refused to take C.A. to the hospital to obtain a rape kit. After this incident, C.A. refused to visit petitioner, and the children only saw petitioner when required by cour t order . The forensic interviewer then turned to B.A.’s interview and stated that B.A. disclosed physical abuse by petitioner, such as being grabbed by the

wrists and that petitioner’s long fingernai ls dug into her skin. To this testimony, petitioner interjected, “False.” The court then admitted the CAC summary containing B.A. and C.A.’s

statements into evidence. Lastly , p etitioner testified and denied all allegations of abuse, including whipping or hitting the children. She stated that B.A. is autistic and denied calling her names. She

denied that her ex

- husband assaulted C .A. because she never left the children alone with him. She

further denied that C .A. disclosed any sexual assault to her . She stated that she had not had primary custody o f the children for the past twelve years, and that during that time, she had filed for full custody four times but was unsuccessful. Having heard the evidence, the court adjudicated petitioner as an abusing parent.

By early January of 2021, a service p rovider who conducted parenting sessions with petitioner reported that petitioner completely denied C.A.’s allegations of sexual assault . The provider stated that petitioner made unrealistic statements like she never left the children alone with anyone des pite her working or running errands and that the abuse could not have occurred at night because petitioner never slept when the children stayed with her. The provider further stated

that petitioner claimed C.A. was lying regarding the identity of the perpetrator yet also said that

she believed another male , a friend of the father, had sexually assaulted C.A. The provider noted that petitioner did not show affection when discussing the children, repeatedly labelled C.A. a l iar,

and was not concerned about the sexual a ssault allegations. The provider opined that petitioner had failed to show a willingness to protect the children from further abuse

.

In late January of 2021

, the circuit court held the final dispositional heari ng , and petitioner

filed a motion for a n improvement period the same day. T he DHHR worker testified that petitioner had complied with services

, such as parenting and adult life skills classes and random drug screening. However, the worker stated that p etitioner continued to deny C.A.’s allegations of

sexual a ssault and claim ed that C.A. wa s lying. The worker stated that visitations were ceased af ter C.A. received disturbing messages from a social media account appearing to belong to petitioner.

The worker also stated that the children had not lived with petitioner for several y ears and that visitations with petitioner, both prior to and during the case, had been sporadic and harmful to the

children. Both children expressly wished not to have contact with petitioner and stated that they had never had a good relationship with her. The worker opined that returning the children to petitioner would be d etrimental to the ir welfare . Petitioner testified and denied sending any messages to C.A. through social media. She further stated that she was willing to comply with family counseling. Petitioner denied that C.A. had been sexually assaulted while she was in a relationship with her ex

- husband, whom she divorced in 2016. Petitioner then called her landlord4 who testified that petitioner lived in a small house and had lived there since 2015 , which was contrary to C.A.’s timeline for the alleged assault in 2017

— when C.A. would have been eleven.

At the conclusion of the hearing, the circuit court denied petitioner’s motion for an improvement period. In light of the evidence presented at the dispositional hearing, t he circuit

court found that petitioner “had made no efforts to rectify or acknowledge the circumstances that led to the filing of the petition.” Regarding petitioner’s defense that she did not live with the ex

husband at the time of the alleged sexual assault

, the court stated that it was not concerned with an exact timeline for C.A.’s allegations. The court noted that the guardian had spoken with the children, one of who m was fourteen and the other thirteen , and that they each expressed a desire to be adopted by their foster fa mily. Based upon this evidence , the circuit court found that there was no reasonable likelihood that the conditions of abuse and neglect could be substantially

corrected in the near future and that it was in the children’s best interests to terminate petit ioner’s parental rights. 2 The circuit court entered an order reflecting its decision on February 1 2 , 20 21

. Petitioner appeals from this order.

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 t he 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).

First , petitioner argues that the circuit court erred in adjudicating h er as an abusing parent. According to petitioner, the DHHR did not meet its burden of proving any of the allegations of abuse and neglect by c lear and convincing evidence at the adjudicatory hearing. Specifically, s he argues that “there was no factual substantiation that her ex

- husband sexually abused [C.A.]” as the

“ ex

- husband was never charged with a crime.” She also argues that the ex

- husband was out of her

life at the time the sexual a ssault allegedly occurred and that she no longer live d in the location described by C.A. during the CAC interview. She further argues that there was “no evidence of any physical abuse” of the children. We disagree.

2 M.W. relinquished her guardianship rights of the children. The father is deceased. According to the parties, the permanency plan for the child ren is adoption by t he i r foster family.5 We have previously held as follows:

At the conclusion of the adjudicatory hearing, the 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 ne glected . . . . The findings must be based upon conditions existing at the time of the filing of the petition and proven by clear and convincing evidence.

In re F.S. , 233 W. Va. 538, 544, 759 S.E.2d 769, 775 (2014). This Court has explained that “‘clear

a nd convincing’ is the measure or degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the allegations sought to be established.” Id . at 546, 759 S.E.2d at 777 ( citation omitted). However, “the clear and convinci ng standard is ‘intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a

reasonable doubt as in criminal cases.’” Id. ( citation omitted ). Further, West Virginia Code § 49

- 1

- 201 defines an “abused c hild” as

[a] child whose health or welfare is being harmed or threatened by . . . [a] parent . . . who knowingly or intentionally inflicts, attempts to inflict , or knowingly allows another person to inflict, physical injury or mental or emotional injury, upon the

child or another child in the home.

Having reviewed the record, we find that sufficient evidence existed to adjudicate petitioner as an abusing parent. C.A. and B.A. both disclosed multiple instance s of emotional and physical abuse by petitioner , and C.A. reported a sexual assault that occurred while she was staying with petitioner on a weekend when she was approximately eleven years old

. Also, contrary to petitioner’s argument that petitioner’s ex

- h usband was never charged with a crime, the DHHR worker testified at the adjudicator y hearing that the perpetrator was now under criminal investigation due to C.A.’s disclosures of sexual assau lt. Overall, p e titioner’s arguments in support of this assignmen t of error are all predicated on h er assertions that the circuit court erroneously weighed the evidence in question. However, these arguments all c oncern the issue of credibility

. In light of petitioner’s defense s to C.A.’s allegations that she never slept when the children stayed

with her and never left them alone with anyone , the court could reasonably find her testimony

incredible. Also, the record show s that petitioner refused to believe that her ex

- husband sex ually

assaulted C.A. yet claimed that another ma n who was a friend to the father had actually been the perpetrator. Despite this claim, petitioner continuously called C.A. a liar rather than act as if the sexual assault allegations were a serious concern t o be explored , especially when petitioner claimed to know another possibility for the perpetrator

. Moreover

, the deplorable te x t message s

sent to C.A. from a social media account bearing petitioner’s name further damage d petitioner’s credibility , despite her denial that she sent the messages. T his Court has long held, “[a] reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely situated to

make such determinations and this Court i s not in a position to, and will not, second guess such

determinations.” Michael D.C. v. Wanda L.C. , 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997). Accordingly, we find no error in the circuit court’s adjudication of petitioner.6 Next, petitioner argue s that the circuit court erred in denying h er a post

- dispositional improvement period because s he passed every drug screen

, participated in parenting and adult life

skills classes

, had independent housing, was employed, and was no longer in a relationship with

her ex

- husband. Petitioner argues that these efforts demonstrate that s he should have been granted an improvement period. We find petitioner’s argument s unavailing.

This Court has held that an individual “ charged with abuse and/or neglect is not unconditionally entitled to an improvement period.” In re Emily , 208 W. Va. 325, 336, 540 S.E.2d 542, 553 (2000). West Virginia Code § 49

- 4

- 610( 3 )(B) provides that the circuit court may grant a

post

- dispositional im provement period when the parent “demonstrates, by clear and convincing evidence, that the [y are] likely to fully participate in the improvement period.” “This Court has explained that ‘an improvement period in the context of abuse and neglect proceedings is viewed as an opportunity for the

. . . parent to modify his/her behavior so as to correct the conditions of abuse and/or neglect with which he/she has been charged.’” In re Kaitlyn P. , 225 W. Va. 123, 126, 690 S.E.2d 131, 134 (2010) (citation omitted). However, the circuit court has discretion to deny an improvement period when no improvement is li kely. See In re Tonjia M. , 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002). Further, 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 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) ( citation omitted ).

Contrary to petitioner’s argument, we see no error in the circuit court’s determination that petitioner was not likely to fully participate in an improvement period. The circu it court found that petitioner failed to acknowledge or take any responsibility for the conditions that led to the abuse and neglect of the children . While petitioner argues that s he proved s he was likely to participate in an improvement period by participating in drug screens, having appropriate housing, and participating in adult life skills and parentings classes, these actions alone could not prove that petitioner was likely to fully parti cipate in an improvement period without her recognition of h er abuse and neglect of the children . Further, a DHHR worker testified that that p etitioner continued

to call C.A. a liar and failed to acknowledge any wrongdoin g, despite evidence of physical and

emotional abuse . As such, there is ample evidence that petitioner ’s repeated failures to acknowledge the conditions of abuse and neglect resulted in h er inability to establish that s he was likely to fully participate in an improvement period . Given this evidence, we find no error in the circuit court’s decision to deny petitioner a n improvement period.

Likewise, we find no error in the termination of petitioner’s parental rights. According to West Virginia Code § 49

- 4

- 604(c)(6), a circuit court may terminate a parent’s parental rights upon finding that “there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future” and that termination of parental rights is necessary for7 the children’s wel fare. Petitioner is correct that West Virginia Code § 49

- 4

- 604(d)(3) provides that a circuit court may determine that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected when

[t]he abusing parent or pa rents have 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 evide nced by the continuation or insubstantial diminution of conditions which threatened the health, welfare, or life of the child.

Here, although petitioner participated in adult life skills and parenting classes and submitted negative drug screens, she failed to respond to these rehabilitative efforts. The record shows that

the provider noted that petitioner did not show affection when discussing the children, repeatedly labelled C.A. a liar, and was not concerned about the sexual a ssault allegations. Th e provider opined that petitioner had failed to show a willingness to protect the children from further abuse. Clearly, the evidence presented shows the continuation of petitioner’s emotional abuse of the

children.

Additionally, West Virginia Code § 49

- 4

- 604(d)(5) provides that a circuit court may determine that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected when

[t] he abusing parent or parents have repeatedly or seriously injured the child physically or emotionally, or have sexually abused or sexually exploited the child, and the degree of family stress and the potential for further abuse and neglect are so great as to preclud e the use of resources to mitigate or resolve family problems, or assist the abusing parent or parents in fulfilling their responsibilities to the child

.

The record clearly shows that both children have disclosed extensive emotional and physical abuse by petitioner over the course of several years, and that both children stated that they never had a good relationship with petitioner. The children disclosed that petitioner insulted them and told them that they ruined her life. Notably, petitioner admitted that she had not had primary custody of the children for the previous twelve years. Given these issues, it is apparent that “ the degree of family stress and the potential for further abuse and neglect are so great as to preclude the use of resources to mitigate or resolve family problems, or assist the abusing parent or parents in fulfilling their responsibilities to the child [ren].” Id

. Accordingly, we find that ample evidence supported the circuit court’s finding that there wa s no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future.

W e also find no error in the circuit court’s finding that the termination of petitioner’s parental rights was in the children’s best interest s . B y the time of the dispositional hearing, C.A.

was f ourt een year s old, and B.A. was thirteen year s old

. “ Notwithstanding any other provision of this article, the court shall give consideration to the wishes of a child 14 years of age or older or otherwise of an age of discretion as determined by the court regarding the permanent termination8 of parental rights

. ” W. Va. Code § 49

- 4

- 604 (c) (6)(C) . The guardian interview ed both children and both expressed a desire to be adopted and that petitioner’s parental rights be terminated. The guardian also expressed that both children were of the maturity to make known thei r wishes and that they understood the consequences.

Finally, i nsofar as petitioner argues that she was entitled to a less

- drastic dispositional alternative, we have held that

“ [t] ermination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, [West Virginia Code § 49

- 4

- 604] may be employed without the use of intervening less restrictive

alternatives when it is found that th ere is no reasonable likelihood under [West Virginia Code § 49

- 4

- 604( d )] 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. 55 8, 712 S.E.2d 55 (2011). As such, we find no error in the termination of petitioner’s parental rights.

For the foregoing reasons, we find no error in the decision of the circuit court, and its February 1 2 , 2021 , order is hereby affirmed.

Affirmed.

ISSUE D : 

### November 8, 2021

CONCURRED IN BY :

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchiso n Justice William R. Wooton