1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re A.Y.

No. 20-0022 (Wood County 18-JA-196)

MEMORANDUM DECISION

Petitioner Father C.Y., by counsel Justin M. Raber, appeals the Circuit Court of Wood 

County’s December 19, 2019, order following the termination of his parental rights to A.Y.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, Jessica Myers, filed 

a response on behalf of the child in support of the circuit court’s order. On appeal, petitioner argues 

that the circuit court erred in denying his motion for a post-adjudicatory improvement period, 

terminating his parental rights upon insufficient evidence, and failing to impose the least-restrictive 

dispositional alternative. 

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 2018, the DHHR filed an abuse and neglect petition alleging that 

petitioner’s parental rights to an older child were involuntarily terminated in a prior proceeding 

because of his failure to protect the older child from abuse and neglect related to substance abuse.2

1Consistent 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). 

2The petition included in the appendix record on appeal does not clearly set forth the 

specific procedural history of the prior termination of petitioner’s parental rights, though it does 

set forth a detailed account of the conditions of abuse and neglect that resulted in that prior 

(continued . . . )

FILED

September 23, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

In regard to A.Y., the DHHR alleged that petitioner’s failure to remedy the conditions of abuse 

and neglect from the prior proceeding constituted abuse and/or neglect to that child. Specifically, 

the DHHR alleged that the child’s mother’s rights to an older child were previously involuntarily 

terminated due to substance abuse and, despite the persistence of this substance abuse, petitioner 

continued his relationship with the mother. Following the petition’s filing, the matter was 

continued several times due to issues regarding service of the petition. Ultimately, petitioner 

stipulated to the allegations against him at an adjudicatory hearing in September of 2019. 

Thereafter, petitioner filed a motion for a post-adjudicatory improvement period. During 

hearings in October of 2019 and November of 2019, the circuit court heard evidence in relation to 

both the motion for an improvement period and disposition. Specifically, the circuit court heard 

evidence related to petitioner’s continued failure to remedy the conditions of abuse and neglect 

that persisted across two separate proceedings. In the prior proceeding, petitioner was required to 

have no contact with the mother, given that her substance abuse posed a threat to petitioner’s older 

child’s wellbeing. However, petitioner continued his relationship with the mother and lied to the 

circuit court and the multidisciplinary team about that contact. As a result, his parental rights to 

his older child were involuntarily terminated. During the dispositional hearings in this matter, 

petitioner acknowledged that his parental rights to his older child were terminated because of his 

continued relationship with the mother and his dishonesty about that relationship. However,

petitioner deflected his responsibility for these issues and blamed the DHHR for the termination 

of his parental rights. Petitioner additionally indicated that he no longer had contact with the 

mother, but a witness testified to having seen them together on at least two separate occasions. 

Petitioner denied having been with the mother, although he admitted that he previously testified in 

the prior proceeding that he would not end his relationship with the mother even if it jeopardized 

his parental rights. Ultimately, the circuit court found that there was no reasonable likelihood that 

petitioner could substantially correct the conditions of abuse and neglect and that termination of 

his parental rights was in the child’s best interests. As such, the circuit court terminated petitioner’s 

parental rights to the child.3 The circuit court then held a hearing regarding petitioner’s request for 

post-termination visitation, after which it denied such visitation upon finding that it was not in the 

child’s best interests. It is from the circuit court’s December 19, 2019, 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 

termination. While it is unclear, exactly, when petitioner’s parental rights to this older child were 

terminated, the parties agree that the basis for the petition related to A.Y. was the prior termination 

of petitioner’s parental rights to an older child and his failure to remedy those conditions of abuse 

and neglect. 

3The mother’s parental rights were also terminated below. According to respondents, the 

permanency plan for the child is adoption in the current foster home. 
3

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). 

As a threshold matter, it is important to address the fact that all of petitioner’s assignments 

of error can be resolved by the following:

[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). While 

petitioner argues that he acknowledged the conditions of abuse and neglect by virtue of his 

stipulation, the record does not support this assertion. In fact, the record shows that petitioner was 

given the opportunity to acknowledge these conditions across two separate abuse and neglect 

proceedings, yet failed to appreciate the danger that the child’s mother’s substance abuse posed. 

During the prior proceeding, petitioner was dishonest with the circuit court and the parties 

regarding his continued relationship with the mother and admitted that he would continue that 

relationship despite knowing that it could result in the termination of his parental rights to an older 

child. In the current matter, petitioner testified that he ended his relationship with the mother, but 

eyewitness testimony established that the two were together on at least two separate occasions. 

Given petitioner’s past dishonesty regarding his relationship with the mother, the circuit court was 

free to weigh this evidence and find that petitioner’s self-serving testimony lacked credibility. 

Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997) (“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.”). As such, we decline to disturb any such credibility determinations on appeal. 

Turning to petitioner’s first assignment of error, we find no error in the circuit court’s denial 

of petitioner’s motion for a post-adjudicatory improvement period. Given that petitioner failed to 

acknowledge the conditions of abuse and neglect that resulted in the petition’s filing, it is clear 

that an improvement period was not warranted. This is especially true in light of the fact that circuit 

courts are afforded discretion in the granting of such improvement periods. In re Tonjia M., 212 

W. Va. 443, 448, 573 S.E.2d 354, 359 (2002) (“The circuit court has the discretion to refuse to 

grant an improvement period when no improvement is likely.”). As set forth above, failure to 

acknowledge the existence of the conditions of abuse and neglect makes an improvement period 

futile. While petitioner argues that he should have been entitled to an improvement period because 
4

he followed the circuit court’s prohibition against contact with the mother, the record simply does 

not support this assertion. Thus, we find no error in this regard. 

Next, petitioner argues that termination of his parental rights was erroneous because there 

was insufficient evidence to establish that there was no reasonable likelihood the conditions of 

abuse and neglect could be substantially corrected. However, petitioner fails to cite to any evidence 

that would cause this Court to call the circuit court’s finding on this issue into question. Instead, 

petitioner argues that the circuit court made insufficient findings to support this conclusion. We 

disagree, and note that the evidence overwhelmingly supports the conclusion that there was no 

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

in the near future. Put succinctly, the evidence below showed that petitioner’s parental rights to an 

older child were involuntarily terminated in a prior proceeding because of his failure to protect the 

child from the mother’s substance abuse and his continued relationship with her. The evidence in 

the current matter shows that petitioner continued this relationship. According to West Virginia 

Code § 49-4-604(d)(3), a situation in which there is no reasonable likelihood that the conditions 

of abuse and neglect can be substantially corrected in the near future includes when “[t]he abusing 

parent . . . ha[s] 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.” Here, the evidence showed that petitioner 

failed to undertake efforts to participate in remedial services, given that his dishonesty about his 

continued relationship with the mother and his failure to acknowledge the danger that relationship

posed to the children prevented his meaningful participation. As such, we find no error. 

Petitioner further argues that because he shared a strong emotional bond with the child, 

who was removed from his care at birth, the circuit court should have imposed a less-restrictive 

dispositional alternative. According to petitioner, he established this bond by visiting regularly 

with the child, but he cites to no evidence in support of this assertion. We find petitioner’s 

argument unavailing, especially in light of the fact that “[o]ur cases indicate that a close emotional 

bond generally takes several years to develop.” In re Alyssa W., 217 W. Va. 707, 711, 619 S.E.2d 

220, 224 (2005). Rather than supporting his position regarding a less-restrictive dispositional 

alternative, the child’s young age supports the circuit court’s finding that termination of 

petitioner’s parental rights was necessary for the child’s welfare and in order to achieve 

permanency. Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4 (“[C]hildren under the age 

of three years . . . are more susceptible to illness, need consistent close interaction with fully 

committed adults, and are likely to have their emotional and physical development retarded by 

numerous placements.”).

According to West Virginia Code § 49-4-604(c)(6), a circuit court may terminate parental 

rights upon finding that there is no reasonable likelihood that the conditions of abuse and neglect 

can be substantially corrected in the near future and that termination is necessary for the child’s 

welfare. Given the analysis above regarding the circuit court’s findings on these issues, it is clear 

that termination of petitioner’s parental rights was not in error. Moreover, this Court has 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 
5

restrictive alternatives when it is found that there 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. 558, 712 S.E.2d 55 (2011). As such, we find that the circuit 

court did not err in terminating petitioner’s parental rights.4

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

December 19, 2019, order is hereby affirmed.

Affirmed.

ISSUED: September 23, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman 

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

4

In support of this assignment of error, petitioner asserts that “no consideration was given 

to allow visitation between the [p]etitioner and the minor child.” Petitioner then cites the following:

“When parental rights are terminated due to neglect or abuse, the circuit 

court may nevertheless in appropriate cases consider whether continued visitation 

or other contact with the abusing parent is in the best interest of the child. Among 

other things, the circuit court should consider whether a close emotional bond has 

been established between parent and child and the child’s wishes, if he or she is of 

appropriate maturity to make such request. The evidence must indicate that such 

visitation or continued contact would not be detrimental to the child’s well being 

and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va. 

446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002). Petitioner fails to acknowledge, 

however, that the circuit court convened a hearing for the sole purpose of considering whether 

post-termination visitation was appropriate. In short, petitioner cites to no evidence that continued 

contact with him would be in the child’s best interests. Given the child’s young age and taking into 

consideration the child’s best interests, we find no error in the circuit court’s denial of petitioner’s 

request for post-termination visitation.