STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED In re: M.F. and M.K. 

May 22, 2017 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS No. 16-0846 (Jackson County 15-JA-147and 15-JA-149) OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother E.K., by counsel Joel Baker, appeals the Circuit Court of Jackson 

County’s August 3, 2016, order terminating her parental and custodial rights to M.F. and M.K.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”), Erica Brannon Gunn, 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 adjudicating her 

as an abusing parent, denying her request for a post-adjudicatory improvement period, and 

terminating her parental rights. 

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 December of 2015, M.F. experienced a serious behavioral issue at school related to his 

autism. M.F.’s teacher called the home and M.F.’s step-father, J.K., picked the child up from the 

school. When M.F. returned to school he had noticeable injuries on his face and forehead, 

including a black eye. Accordingly, the DHHR filed an abuse and neglect petition against 

petitioner and the step-father. Specifically, the petition alleged that the parties engaged in 

domestic violence in the children’s presence and that petitioner and the step-father physically 

and emotionally abused the children. An amended abuse and neglect petition was filed in April 

of 2016, alleging that petitioner and the step-father attempted to interfere with the children’s 

statements to the DHHR. 

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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In January of 2016, the circuit court held a preliminary hearing wherein it heard the 

testimony of several witnesses. A DHHR worker testified that she observed bruises on M.F. and 

that M.F. reported to her that his step-father threw him on the ground and caused the bruises. She 

also testified that M.F. hid under a chair and reported that the bruises were the reason he was 

absent from school. The worker further testified that when she confronted petitioner about the 

allegations of abuse, petitioner denied the allegations and told her that M.F. was “not able to 

make sentences or be understood.” Respondent called the step-father to testify but the circuit 

court continued the matter to allow the step-father to further confer with his attorney regarding 

the implications of testifying at the preliminary hearing. 

Also in January of 2016, the circuit court held a second preliminary hearing wherein it 

heard the testimony of another witness. M.F.’s teacher testified that she observed bruises on 

M.F.’s forehead and a black eye. She also testified that M.F. told her that his step-father pushed 

him down onto the floor. She further testified that M.F. did not have bruises on his forehead or a 

black eye when he left school on December 15, 2015. Based on the evidence, the circuit court 

found that imminent danger existed at the time of the petition’s filing and sustained the 

children’s removal from the home. The circuit court ordered that petitioner, the step-father, and 

the children undergo psychological evaluations. 

In May of 2016, the circuit court held an adjudicatory hearing wherein it heard testimony 

from the psychologist that evaluated the step-father, petitioner, and the children. The 

psychologist testified that petitioner and the step-father denied abusing the children. He also 

testified that the step-father had an unspecified personality disorder with antisocial and 

narcissistic features. According to the psychologist, M.F. stated that petitioner told him that he 

was not supposed to acknowledge the allegations of abuse and that he would be “back in the 

home soon.” The psychologist further testified that, according to M.F., petitioner told him that he 

should tell the psychologist that “dad [did] [not] do anything.” The psychologist opined that the 

children would be in danger if left in the step-father’s care and testified that he could not 

formulate treatment recommendations because petitioner refused to acknowledge the abuse. 

Petitioner testified that she did not believe that the step-father abused the children. At the 

conclusion of the hearing, the circuit court adjudicated petitioner and the step-father as abusing 

parents. Following the adjudicatory hearing, petitioner and the step-father filed written motions 

requesting post-adjudicatory improvement periods. 

In July of 2016, the circuit court held a dispositional hearing. A DHHR worker testified 

that the DHHR was seeking termination of petitioner’s parental rights because she denied the 

abuse that led to the petition’s filing. Petitioner testified that she was “willing to follow any 

recommendations of the DHHR” but that she did not believe that she or the step-father did 

anything wrong and the children were appropriately disciplined. At the conclusion of the 

hearing, the circuit court found that petitioner failed to acknowledge the existence of abuse in the 

home. The circuit 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 

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children, and denied her motion for a post-adjudicatory improvement period.2 It is from that 

August 3, 2016, 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 circuit court’s adjudicating petitioner as an abusing parent, denying her motion for 

a post-adjudicatory improvement period, or terminating her parental rights. 

On appeal, petitioner argues that the circuit court’s findings of abuse were not supported 

by clear and convincing evidence. West Virginia Code § 49-1-201 defines an “abused child” as 

“a child whose health or welfare is being harmed or threatened by [a] parent, guardian or 

custodian 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.” West Virginia Code § 49-1-201 also defines an “abusing parent” as “a parent, 

guardian or other custodian, regardless of his or her age, whose conduct has been adjudicated by 

the court to constitute child abuse or neglect as alleged in the petition charging child abuse or 

neglect.” Further, this Court has described the “clear and convincing” standard as one in which 

the evidence does not have to satisfy the stringent standard of beyond a 

reasonable doubt; the evidence must establish abuse by clear and convincing 

evidence. This Court has explained that “‘clear and convincing’ is the measure or 

degree of proof that will produce in the mind of the factfinder a firm belief or 

2

All parental rights of all parents to M.F. and M.K. were terminated below. According to 

the guardian, the children were placed in foster homes and the permanency plan is adoption 

therein. Additionally, the record indicates that J.K., the father of M.K., has an additional child 

(B.F.) that was the subject of the proceedings below. J.K.’s parental rights to B.F. were 

terminated below. According to the guardian in J.K.’s related appeal, this additional child was 

placed with the non-offending mother, J.F. and the permanency plan is to remain in that home. 

Because petitioner is not the biological mother of this additional child, he is not the subject of 

this appeal. 

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conviction as to the allegations sought to be established.” Brown v. Gobble, 196 

W.Va. 559, 564, 474 S.E.2d 489, 494 (1996) 

In re F.S. and Z.S., 233 W.Va. 538, 546, 759 S.E.2d 769, 777 (2014). 

In this case, as to the May of 2016 adjudication, the DHHR alleged that petitioner 

physically and emotionally abused the children. At the first preliminary hearing, multiple 

witnesses testified to observing injuries on M.F. after he was in the step-father’s care and that 

M.F. reported that the step-father threw him on the ground and caused his injuries. The DHHR 

worker testified that M.F. also reported that petitioner would not allow him to attend school 

because of his injuries. M.F.’s teacher testified that the step-father “hung up on her” when she 

telephoned petitioner in December of 2015, and was angry when he picked M.F. up from school. 

The worker also testified that she was able to understand and communicate with M.F., despite 

petitioner’s contention that he could not formulate sentences or communicate effectively. At the 

adjudicatory hearing, the psychologist testified that he could not formulate treatment 

recommendations because petitioner refused to acknowledge the abuse in the home. 

Given the clear and convincing evidence of physical abuse, we find no error in the circuit 

court’s order regarding adjudication. The circuit court found that the testimony of the DHHR 

worker, M.F.’s teacher, and the psychologist to be “unbiased and credible.” Despite the evidence 

to the contrary, petitioner simply denied the abuse and claimed that the M.F.’s injuries came 

from his own self-injurious behavior. The record reflects, however, that petitioner interfered with 

the children’s statements to the DHHR and did not allow M.F. to attend school because of his 

abuse related injuries. Petitioner’s actions demonstrated her unwillingness and inability to 

acknowledge her culpability in this matter. As such, the circuit court was within its discretion to 

discount her testimony and credit the testimony of the DHHR worker, M.F.’s teacher, and the 

psychologist. Further, our case law provides that “in the context of abuse and neglect 

proceedings, the circuit court is the entity charged with weighing the credibility of witnesses and 

rendering findings of fact.” In re Emily, 208 W.Va. 325, 339, 540 S.E.2d 542, 556 (2000) (citing 

Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478, 525 S.E.2d 669 (1999)); see also Michael 

D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997) (stating that “[a] 

reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely 

situated to make such determinations and this Court is not in a position to, and will not, second 

guess such determinations.”). Therefore, we find adequate evidentiary support for the finding 

that petitioner abused the children. Based on our review of the record on appeal, the circuit court 

committed no error in finding that circumstances of this case meet the statutory definition of an 

“abused child” and that petitioner was an abusing parent. 

Petitioner next argues that the circuit court erred in denying her motion for a postadjudicatory improvement period. In support of her argument, and without citation to the record, 

petitioner asserts that she presented evidence that demonstrated she was “willing and wanting to 

fully participate” in an improvement period. Upon our review, however, the Court finds that 

petitioner failed to satisfy the applicable burden to obtain an improvement period. We have often 

noted that the decision to grant or deny an improvement period 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) (stating that 

“West Virginia law allows the circuit court discretion in deciding whether to grant a parent an 

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improvement period”); Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) 

(holding that “[i]t is within the court’s discretion to grant an improvement period within the 

applicable statutory requirements”).We have also held that a parent’s “entitlement to an 

improvement period is conditioned upon the ability of the [parent] to demonstrate ‘by clear and 

convincing evidence, that the respondent 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). 

Here, it is clear from the record on appeal that petitioner failed to demonstrate her ability 

to fully participate in an improvement period. The circuit court was presented with evidence that 

petitioner denied the allegations of abuse and interfered with the children’s statements to the 

DHHR and the psychologist. 

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 Charity H., 215 W.Va. 

at 217, 599 S.E.2d at 640). As such, it is clear that petitioner failed to establish that she was 

likely to fully participate in a post-adjudicatory improvement period and we find no error in the 

circuit court denying petitioner’s motion. 

Finally, petitioner argues on appeal that the circuit court erred in terminating her parental 

rights without granting her request for an improvement period. The Court, however, does not 

agree. Petitioner’s argument ignores the facts as presented below. The circuit court found that 

petitioner failed to remedy the conditions of abuse and neglect in the home. These findings were 

based on substantial evidence, including evidence that petitioner failed to acknowledge the abuse 

or accept responsibility for her actions. Further, we have previously held that “a parent charged 

with abuse and/or neglect is not unconditionally entitled to an improvement period.” Charity H., 

215 W.Va. at 216, 599 S.E.2d at 639 (2004). 

Pursuant to West Virginia Code § 49-4-604(c)(3), 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 . 

. . . 

Based upon the substantial evidence outlined above, the circuit court found there was no 

reasonable likelihood that petitioner could substantially correct the conditions of abuse and 

neglect because she failed to participate in services and interfered with the children’s statements 

to the DHHR and the psychologist. The circuit court further found that termination of 

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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. Further, we have held as follows: 

“Termination 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). Accordingly, we find no error 

below. 

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

August 3, 2016, order is hereby affirmed. 

Affirmed. 

ISSUED: May 22, 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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