STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

October 1, 2013 In Re: B.B., J.B., H.B., and L.M. RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

No. 13-0432 OF WEST VIRGINIA
 (Calhoun County 12-JA-72 through 12-JA-75) 

MEMORANDUM DECISION 

Petitioner Father filed this appeal, by counsel Drannon L. Adkins, from the Circuit Court 

of Calhoun County, which terminated his parental rights to the subject children by order entered 

on April 4, 2013. The guardian ad litem for the children, Tony Morgan, has filed a response 

supporting the circuit court’s order. The Department of Health and Human Resources 

(“DHHR”), by its attorney Lee A. Niezgoda, has also filed a response in support of the circuit 

court’s order. Petitioner contends that the circuit court’s adjudication of him as an abusive and 

neglectful parent was based on insufficient evidence and that it erroneously denied his motion for 

a post-adjudicatory improvement period. 

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 is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

In December of 2012, the DHHR filed its petition initiating this abuse and neglect case. 

The petition alleged that petitioner and the children’s mother abused and neglected the children 

through excessive punishment, exposure to domestic violence, and exposure to the use of illicit 

substances. In January of 2013, the DHHR filed an amended petition, adding allegations that the 

oldest child, B.B., had been sexually abused multiple times by petitioner and that her mother 

knew of at least one of these incidents, but failed to protect B.B. During the course of these 

proceedings, the circuit court held an in-camera hearing with B.B. and subsequently adjudicated 

petitioner and the children’s mother as abusive and neglectful parents. No improvement periods 

were granted in this case. Following a dispositional hearing, the circuit court entered an order 

terminating both parents’ parental rights, from which Petitioner Father 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 

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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). 

Petitioner raises two assignments of error on appeal. First, petitioner argues that the 

circuit court erred in finding that there was sufficient credible evidence to support adjudicating 

him as an abusive and neglectful parent. Petitioner asserts that, because child B.B.’s testimony 

was inconsistent and unbelievable, it lacks credibility. Second, petitioner argues that the circuit 

court erroneously denied him a post-adjudicatory improvement period. Petitioner asserts that 

because his adjudication was based on insufficient evidence of sexual abuse, the circuit court 

erred in finding that the DHHR was not required to make reasonable efforts to preserve the 

family. Accordingly, petitioner argues that he should have received services through an 

improvement period. 

Upon our review of the record, we find no abuse of discretion or error by the circuit 

court. First, our review reflects that there was sufficient evidence to support the circuit court’s 

findings and conclusions of abuse and neglect. As provided in West Virginia Code § 49-1-3, 

children of abuse and neglect include those children whose health and welfare have been 

threatened or harmed by domestic violence, excessive punishment, sexual abuse, or emotional 

abuse. The transcript of B.B.’s in-camera testimony provides details of petitioner’s sexual abuse 

against her, her mother’s knowledge of this abuse, and of her fear of petitioner. B.B. also 

described the drug use, emotional abuse, and excessive punishment that occurred in the home 

and in the presence of her and her siblings. On appeal, petitioner only argues against the sexual 

abuse allegations, but the record indicates that the circuit court based its adjudicatory order on 

other conditions of abuse and neglect as well. 

Second, with regard to the circuit court’s denial of an improvement period, the record 

reflects that petitioner’s motion for an improvement period generally asserted that he “corrected 

the issues” that existed at the inception of the abuse and neglect case, yet he did not acknowledge 

the gravity of these issues nor did he demonstrate how he supposedly corrected them or would 

substantially comply with terms of an improvement period. No other evidence has been 

submitted in the appellate record to support petitioner’s contention that the circuit court erred in 

denying him an improvement period. Thus, we find no error or abuse of discretion in the circuit 

court’s decision to deny petitioner’s motion for an improvement period. Pursuant to West 

Virginia Code § 49-6-12, a parent moving for an improvement period bears the burden of 

proving by clear and convincing evidence that he or she will substantially comply with an 

improvement period; consequently, the circuit court has the discretion to deny an improvement 

period if it finds that this burden has not been met. Further, West Virginia Code § 49-6­

5(a)(7)(A) provides that the DHHR is not required to make reasonable efforts to preserve the 

family if any of the children in the home have been subjected to torture or sexual abuse. As 

discussed, we find that the circuit court’s adjudication of petitioner was based on sufficient 

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evidence of not only petitioner’s sexual abuse against B.B. but of other abusive and neglectful 

conditions in the home. 

We find that the circuit court was presented with sufficient evidence upon which it based 

findings that there was no reasonable likelihood to believe that conditions of abuse and neglect 

could be substantially corrected in the near future, and that termination was necessary for the 

children’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to 

terminate parental rights upon such findings. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: October 1, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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