1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re R.P.-1, R.P.-2, D.P., and L.P.

No. 18-0658 (Randolph County 2017-JA-070, 2017-JA -071, 2017-JA-072, and 2017-JA-074)



### MEMORANDUM DECISION

Petitioner Father R.P.-3, by counsel J. Br ent Easton, appeals th e Circuit Court of Randolph County’s June 14, 2018, order terminating hi s parental rights to R.P.-1, R.P.-2, D.P.,

and L.P. 1 The West Virginia Department of H ealth and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a response in s upport of the circuit court’s order. The guardian ad litem (“guardian”), Heather M. Weese, 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 terminating his parental ri ghts without first granting him an improvement period.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

In September of 2017, the DHHR filed a child abuse and neglect petition against petitioner and the mother. The DHHR alleged that the mother and her boyfriend committed acts of abuse against the children, in cluding extreme physical abuse, locking the children in their bedroom, rationing their food, forci ng them to stand in a cold s hower, exposing them to domestic violence, and failing to protect them from sexu al abuse by their paternal step-grandfather. According to the petition, petitioner was incarcer ated on burglary charges in September of 2013 and his projected releas e date was May of 2019.

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). Additionally, b ecause two of the children and petitioner share the same initials, we will refer to them as R.P.-1, R.P.-2, and R.P.-3, respectively, throughout this memorandum decision. Finally, while L.P. was not include d in this Court’s scheduling order, she is petitioner’s biological child and is discussed in his brief on appeal. Accordingly, this memorandum deci sion includes and applies to L.P. 

### FILED

November 21, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 The DHHR filed an amended petition in Febr uary of 2018, wherein it alleged that the children previously reported to petitioner that their paternal step-grandfather was sexually abusing D.P. However, the children stated that petitioner and the paternal grandmother took no action and threatened to punish them if they to ld anyone. The children also witnessed petitioner abuse drugs and engage in domes tic violence with the mother in their presence. The amended petition indicated that petitioner had been released from incarceration since the filing of the first petition.

In April of 2018, the circuit court held an adjudicatory hearing. A forensic interviewer testified that she interviewed the children, who reported that they witnessed petitioner abuse drugs several times while he was not incarcerate d. The interviewer stated that the children further disclosed that they witnessed their pa ternal step-grandfather inappropriately touching D.P. and reported the abuse to th eir father, who instruct ed them not to tell anyone or they would be punished. The children also disclosed that pe titioner engaged in domestic violence against their mother. A Child Protective Services (“ CPS”) worker testified that petitioner was incarcerated in 2013 and was sporad ically incarcerated thereafter. The CPS worker stated the children expressed fear of petitioner, disclose d physical abuse during the times he was not incarcerated, and did not want to be placed in his care. The CPS wo rker concluded that petitioner abused and neglected the children through his failu re to properly provide for or supervise the children. After hearing evidence, the circuit cour t adjudicated petitioner as an abusing parent.

The circuit court held a dispositional heari ng over the course of two days in May of 2018 and June of 2018. The circuit court took judici al notice of the prior testimony presented.

Petitioner testified that he believed the children were being abused by the mother and insisted that he called the DHHR and West Virginia Stat e Police to report the abuse. He requested an improvement period, reported that he had already completed so me classes, such as anger management, and stated he would comply with any terms and conditions of an improvement period if he were granted one. However, petitioner minimized his actions, testified that he did not believe the children were sexually abused by their step-grandfather, and denied abusing drugs in their presence.

Two CPS workers testified as to the childre n’s disclosures of abuse and their personal observations of the children’s phys ical injuries. One worker tes tified that none of the children desired to be placed with petitioner. After heari ng evidence, the circuit court denied petitioner’s motion for an improvement period, finding that he denied the conditions of abuse and neglect, did not believe the children’s disclosures, and fa iled to accept responsibility for his actions. As such, the circuit court noted th at an improvement period would only delay permanency for the

children. The circuit court furt her found that there was no reas onable likelihood th at petitioner could correct the conditions of abuse and neglect in the near future and that termination was necessary for the children’s welfare. It is from the June 14, 2018, dis positional order that petitioner appeals. 2

2 Both parents’ parental rights were terminat ed below. R.P.-1 and R.P.-2 were placed together in a foster home with a permanency plan of adoption therein. D.P. and L.P. were placed together in another foster home with a permanency plan of adoption therein.3 The Court has previously established the follo wing standard of review in cases such as

this:

“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 sh all 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. Th ese findings shall not be set aside by a reviewing court unless cl early erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the revi ewing 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 diffe rently, 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).

On appeal, petitioner argues that the circuit co urt erred in terminati ng his parental rights without first granting him an improvement peri od. According to petitioner, the “overwhelming majority” of the abuse was inflicted against the children by the mother and her boyfriend. Petitioner avers that he repeat edly notified the DHHR of the abuse and, upon his release from prison, worked to obtain housing and employment in an effort to regain custody of the children. We find no merit in petitioner’s argument.

We have held that the decision to grant or deny an improveme nt period rest s 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) (“West Virginia law allows the circuit court disc retion in deciding whether to grant a parent an improvement period.”); Syl. Pt. 6, in part, In re Katie S. , 198 W.Va. 79, 479 S.E.2d 589 (1996) (“It is within the court’s discretion to gran t an improvement period within the applicable statutory requirements.”). We have further held that a parent’s “entitlement to an improvement period is conditioned upon the ability of the [par ent] to demonstrate ‘ by clear and convincing evidence, that the [parent] 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, petitioner failed to demonstrate that he was entitled to an improvement period. The circuit court adjudicated petitione r, in part, upon the children’s credible reports that petitioner ignored their disclosures of sexua l abuse and threatened to punish them if they reported the issue to anyone else. Despite this fi nding, during the dispositional hear ing, petitioner denied abusing drugs in front of the children and testified that he did not believe the children’s consistent

disclosures of sexual abuse. We have previously held that

[i]n order to remedy the abuse and/or ne glect problem, the problem must first be acknowledged. Failure to acknowledge the ex istence of the problem, i.e., the truth of the basic allegation pertaining to the alleged abuse and neglect or the4 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 In re Charity H. , 215 W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Because petitioner failed to acknowledge the conditions of abuse, he effectiv ely rendered an improvement period an exercise in futility at the children’s expense. Accordingly, we find no abuse of discretion in the circuit court’s decision to deny petitioner an improvement period.

We further find no error in the circuit court’ s decision to terminate petitioner’s parental rights. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate parental rights upon findings that there is no reasonable likelihood the conditions of abuse and neglect can be substantially corr ected in the near future and when necessary for the children’s welfare. West Virginia Code § 49-4-604(c)(3) clearly indi cates that a situati on in which there is

no reasonable likeli hood the conditions of ab use and neglect can be substantially corrected

includes one in which

[t]he abusing parent . . . [has] not re sponded to or followed through with a reasonable family case plan or other rehabilitative efforts of social, medical, mental health or other rehabilitative ag encies designed to reduce or prevent the abuse or neglect of the child, as eviden ced by the continuation or insubstantial diminution of conditions which threatened the health, welfare or life of the child. .

. .

The record demonstrates that there was no reasonable likelihood th at petitioner could substantially correct the conditions of abuse and neglect in the near future. Petitioner failed to acknowledge the conditions of abuse by denying th e children’s disclosures of sexual abuse and claiming their reports of his drug abuse were “lie s.” As such, petitioner’s refusal to acknowledge his actions rendered him unable to follow through with any services de signed to correct the conditions of abuse. Despite pe titioner’s argument that he w ould comply with services and address the DHHR’s concerns, we have held that “courts are not required to exhaust every speculative possibility of parental improvement . . . where it appears that the welfare of the child will be seriously threatened. . . .” Cecil T. , 228 W.Va. at 89, 717 S.E.2d at 873, Syl. Pt. 4, in part (quoting Syl. Pt. 1, in part, In re R.J.M. , 164 W.Va. 496, 266 S.E.2d 114 (1980)). Moreover,

“[t]ermination 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 rest rictive 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 ne glect 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). Having reviewed the record,

we find that there was no reason able likelihood that petitioner could correct the conditions of5 abuse in the near future due to his continued refusal to acknowl edge the same. Further, none of

the children desired to be reunite d with petitioner and we find th at termination of petitioner’s parental rights was necessary for their welfare. Accordingly, we find no error.

For the foregoing reasons, we find no error in the decision of the circuit court, and its June 14, 2018, order is hereby affirmed.

Affirmed.

ISSUED : November 21, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Paul T. Farrell sit ting by temporary assignment