STATE OF WEST VIRGINIA FILED SUPREME COURT OF APPEALS 

May 23, 2016 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS In re: A.C., J.C., D.C.-1, and D.C.-2 OF WEST VIRGINIA 

No. 15-1064 (Nicholas County 15-JA-52, 15-JA-53, 15-JA-54, & 15-JA-55) 

MEMORANDUM DECISION 

Petitioner Father R.C., by counsel John C. Anderson, appeals the Circuit Court of 

Nicholas County’s September 29, 2015, order terminating his parental rights to A.C., J.C., D.C.­

1, and D.C.-2.1 The West Virginia Department of Health and Human Resources (“DHHR”), by 

counsel S.L. Evans, filed its response in support of the circuit court’s order. The guardian ad 

litem (“guardian”), Stephen O. Callaghan, filed a response on behalf of the children also in 

support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in 

finding that he could not correct the conditions of abuse and neglect and denying his request for 

an additional psychological evaluation.2 

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 May of 2015, the DHHR filed an abuse and neglect petition alleging that petitioner 

abused A.C., J.C., D.C.-1, and D.C.-2 by exposing them to other adults who abused them. The 

petition further alleged that petitioner left the children in the care, custody, and control of M.C., 

their stepmother, who abused D.C.-2. According to the petition, a West Virginia State Trooper 

discovered D.C.-2 outside petitioner’s home standing with her nose at the corner of the house. 

The petition further alleged that D.C.-2 was outside for approximately four hours, not wearing 

shoes, crying, and shivering. According to the petition, when D.C.-2 attempted to go inside the 

home, she was dragged back outside “by her arm” while being whipped. The petition also 

provided that petitioner was aware of the abuse and “assured [the DHHR] that he would not 

allow [the stepmother] to be around the children.” The DHHR further alleged that petitioner had 

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Because two of the minor children share the same initials, the Court will refer to the 

children as D.C.-1 and D.C.-2 throughout the memorandum decision. 

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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. 

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previously admitted to exposing his children to their biological mother, K.C., who abused drugs 

in their presence. The DHHR provided services to petitioner in 2009 and 2010 and petitioner 

previously submitted to a psychological evaluation. 

In June of 2015, the circuit court held a preliminary hearing and found the existence of 

imminent danger to the children’s physical well-being and removed them from petitioner’s 

home. Following the preliminary hearing, petitioner submitted to another psychological 

evaluation. 

In July of 2015, the circuit court held an adjudicatory hearing wherein petitioner 

stipulated to the allegations in the petition. The circuit court accepted his stipulation and 

adjudicated petitioner an abusing parent. Following the adjudicatory hearing, petitioner filed 

motions for both a post-adjudicatory improvement period and a post-dispositional improvement 

period on the basis that he stipulated to the allegations contained in the petition and was “willing 

to do anything it takes to regain custody of his children.” 

In September of 2015, the circuit court held a dispositional hearing. At the close of the 

hearing, 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 because petitioner was 

“unwilling or unable to properly parent his children.” The circuit court noted that petitioner has a 

long history with the DHHR as evidenced by a previous petition based on similar incidents of 

abuse and neglect. The record indicated that in 2009 petitioner admitted to exposing his children 

to their drug-addicted mother, who he knew could not take care of them. The circuit court 

determined that this was the second time that petitioner admitted to leaving his children in the 

care of an abusive and inappropriate person. The circuit court found that the same conditions of 

abuse and neglect from 2009 persisted in petitioner’s current case. The circuit court further 

denied petitioner’s requests for an improvement period and found that he is “incapable of putting 

the children’s needs above his own needs,” and that an improvement period would be futile. The 

circuit court also denied petitioner’s request for another psychological evaluation and terminated 

his parental rights by order dated September 29, 2015. It is from this order petitioner now 

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 

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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). On appeal, petitioner argues that 

the circuit court erred in finding that he could not correct the conditions of abuse and neglect. In 

support of his contention, petitioner argues that he was not given the opportunity to correct the 

conditions of abuse and neglect because the circuit court denied his requests for an improvement 

period. 

Pursuant to West Virginia Code § 49-4-610(2)(B), a parent must demonstrate, “by clear 

and convincing evidence, that the [parent] is likely to fully participate in the improvement 

period[.]” It is clear from the record that the circuit court found that petitioner was “incapable of 

putting the children’s needs above his own needs,” and that an improvement period would be 

futile because the same conditions of abuse and neglect from 2009 persisted in petitioner’s 

current case. The record on appeal indicated that petitioner, despite years of services, continued 

to knowingly leave his children in the care, custody, and control of abusive people. Petitioner 

received an improvement period in his previous case and completed it. However, in his current 

case, the circuit court determined that petitioner again left his children in the care of an abusive 

person and found that the conditions of abuse and neglect persisted. According to the record, 

petitioner presented no evidence that he was likely to fully participate in an improvement period. 

On the contrary, petitioner demonstrated that he was unwilling or unable to correct the 

conditions of abuse and neglect that have persisted since 2009. Based on the evidence before it, 

the circuit court correctly denied petitioner’s requests for an improvement period. 

Petitioner also argues that the circuit court erred in terminating his parental rights 

“without giving him the chance to make the necessary changes” to correct the conditions of 

abuse and neglect. While petitioner contends that the circuit court erred in terminating his 

parental rights without employing less restrictive dispositions, the record is clear that there was 

no less restrictive disposition available in his case. Specifically, the circuit court found that that 

there was no reasonable likelihood that petitioner could substantially correct the conditions of 

abuse and neglect in the near future. Pursuant to West Virginia Code § 49-4-604(c)(3), there is 

no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected 

when 

[t]he abusing parent or parents 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 evidenced by the continuation or insubstantial 

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

It is clear from the record that petitioner was unwilling and unable to properly parent his 

children, despite years of services. The record indicated that, according to petitioner’s 

psychological examinations, he had a pattern of leaving his children “with inappropriate 

caregivers” and failed to take the necessary action to protect the children in the face of abuse. 

The circuit court found that petitioner had a long history with the DHHR and this was the second 

time he admitted to knowingly leaving his children in the care of an abusive person. The circuit 

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court also found that the same conditions of abuse and neglect from petitioner’s previous case 

persisted in his current case. As such, petitioner’s unwillingness to protect his children from 

abuse provided the circuit court with sufficient grounds for its finding that the conditions of 

neglect or abuse could not be substantially corrected. 

Moreover, the circuit court correctly terminated petitioner’s parental rights upon its 

finding that there was no reasonable likelihood that he could substantially correct the conditions 

of abuse and neglect and that termination was in the children’s best interests. In accordance with 

West Virginia Code § 49-4-604(b)(6), upon such a finding, circuit courts are directed to 

terminate a parent’s parental rights. Therefore, considering the evidence before it, the circuit 

court correctly terminated petitioner’s parental rights. 

Finally, petitioner argues that the circuit court erred in denying his request for an 

additional psychological evaluation. Specifically, petitioner contends that his previous 

psychological evaluation from 2009 portrayed him in “a good light,” while the current 

psychological evaluation portrays him in “a negative light.” We have long held that “factual 

findings are reviewed under a clearly erroneous standard. Clearly erroneous is a ‘highly 

deferential’ standard of review.” Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 

97, 106, 459 S.E.2d 374, 383 (1995). We have also held that 

[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 part, In re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996). 

While petitioner argues that the 2015 psychological evaluation was “unduly prejudicial,” 

he fails to satisfy the burden under a clearly erroneous standard. Petitioner is not challenging the 

qualifications of the psychological evaluator or the validity of the psychological evaluation, only 

the conclusion. Petitioner puts forth no evidence in support of his contention, other than his own 

belief that the second psychological evaluation was prejudicial. The circuit court, however, 

considered the evidence before it and concluded that “[t]he only difference between the 2009 

psychological evaluation and the 2015 evaluation . . . [was] the passage of time.” As such, we 

find that the circuit court correctly denied petitioner’s request for an additional psychological 

evaluation. 

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

September 29, 2015, order is hereby affirmed. 

Affirmed. 

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ISSUED: May 23, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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