STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In Re: K.S. June 15, 2015 

RORY L. PERRY II, CLERK 

No. 15-0051 (Calhoun County 13-JA-54) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother S.S., by counsel Teresa C. Monk, appeals the Circuit Court of Calhoun 

County’s December 22, 2014, order terminating her parental rights to K.S.1 The West Virginia 

Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed its 

response in support of the circuit court’s order. The guardian ad litem (“guardian”), Anita Harold 

Ashley, filed a response on behalf of the child supporting the circuit court’s order. On appeal, 

petitioner alleges that the circuit court erred in finding she abused both K.S. and her stepdaughter M.S., in implementing a family case plan that addressed issues upon which petitioner 

was not adjudicated, in finding that she did not successfully complete her improvement period, 

and in terminating her parental rights to K.S.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 August of 2013, the DHHR filed an abuse and neglect petition alleging that M.S’s 

father, J.S., sexually abused the child. Petitioner and her daughter K.S. also resided in this home. 

The petition further alleged that petitioner emotionally abused M.S. when she denied the sexual 

abuse occurred and blamed the child for “flaunting” herself in front of her father. The petition 

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In the circuit court, this abuse and neglect proceeding concerned both petitioner’s 

biological daughter, K.S., and petitioner’s step-daughter, M.S. While petitioner appeals certain 

adjudicatory findings made in regard to her abuse of M.S., the circuit court did not terminate any 

rights petitioner may have to M.S., and petitioner does not make any arguments regarding M.S. 

on appeal. As such, this memorandum decisions concerns only the termination of petitioner’s 

parental rights to K.S. 

2

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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also alleged a failure to protect the child or provide a safe, clean, living environment, and that the 

other child in the home, K.S., was also abused by these conditions. 

The circuit court held an adjudicatory hearing in November of 2013. Prior to the hearing, 

the circuit court took in camera testimony from M.S., then fourteen years old. During her 

testimony, M.S. disclosed repeated acts of sexual abuse by J.S. over the preceding months. Her 

testimony was consistent with prior disclosures and a transcript was provided to counsel in 

advance of the adjudicatory hearing. During the hearing, the father voluntarily relinquished his 

parental rights to both M.S. and K.S. As to petitioner, she admitted she was jealous of the 

relationship between M.S. and her father and stated that she felt like M.S. was more of a wife to 

him than she was. According to M.S.’s testimony, petitioner was home during several of the 

instances of abuse. Ultimately, the circuit court adjudicated petitioner as an abusing parent upon 

the finding that she emotionally abused M.S. and that K.S, as another child in the home, was also 

abused. However, the circuit court found that the DHHR failed to establish abuse by virtue of a 

failure to protect the children or upon the conditions in the home. 

In January of 2014, the circuit court granted petitioner a post-adjudicatory improvement 

period. The terms of the improvement period required petitioner to familiarize herself with the 

signs of sexual abuse; avoid exposing her child to inappropriate individuals; be able to assess 

situations that could place the child in danger; provide a safe and clean home environment; 

maintain stable employment; meet her own emotional needs; and accept responsibility for her 

actions. Further, petitioner was required to acknowledge that J.S. sexually abused M.S. so that 

she could learn to prevent further abuse. 

Two months later, the circuit court held a review hearing. Despite the father’s indictment 

and incarceration for sexually abusing M.S., petitioner testified that she still didn’t know if he 

had sexually abused the child. Thereafter, the circuit court held a dispositional hearing in 

September of 2014. Although petitioner participated in services, a provider testified that 

petitioner failed to learn the safety aspects of sexual abuse. And despite recognizing that M.S. 

displayed multiple signs of sexual abuse, petitioner never acknowledged that the abuse occurred. 

As such, the provider testified regarding concerns about returning K.S. to petitioner’s care. 

Petitioner’s therapist also testified that petitioner “never came to terms with those things [that] 

were really happening in the home.” The therapist also testified that, despite repeatedly 

confronting petitioner with the evidence supporting the father’s sexual abuse, petitioner refused 

to accept that M.S. was sexually abused. As such, the therapist testified that petitioner made no 

progress in learning how to protect K.S. from potential sexual abuse. The circuit court also found 

that petitioner continued her relationship with the father, as evidenced by numerous recorded 

telephone conversations with him while incarcerated and a caseworker observing him in the 

home in the days prior to the dispositional hearing. Ultimately, the circuit court terminated 

petitioner’s parental rights to K.S. Petitioner appeals from the dispositional order. 

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 

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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 adjudicating petitioner as an abusing parent, in implementing 

services designed to remedy the conditions of abuse, in finding petitioner failed to successfully 

complete her improvement period, or in terminating petitioner’s parental rights to K.S. 

To begin, the Court finds no error in the circuit court adjudicating petitioner as abusing 

M.S. Petitioner’s argument on this issue concerns an alleged insufficiency of the evidence to 

support her emotional abuse of M.S. However, based upon our review of the record, the Court 

finds that the evidence was sufficient to adjudicate petitioner as having emotionally abused M.S. 

According to the record, petitioner not only chose not to believe M.S. throughout the pendency 

of these proceedings, but when M.S. disclosed sexual abuse to her, petitioner repeatedly called 

the child a liar. Moreover, petitioner then told M.S. that she wanted the child to confront her 

father in front of family and friends. The record also shows that petitioner blamed M.S. for the 

sexual abuse because she dressed provocatively and flirted with older men. In short, petitioner 

made it clear that she felt that M.S. had victimized her and her entire family by making the 

disclosures of sexual abuse. 

While petitioner argues that the definition of emotional abuse as found in West Virginia 

Code § 49-1-3(1)(A) is insufficient to establish what conduct constitutes such abuse, the Court 

finds that this statute is sufficiently specific and that petitioner’s conduct in response to M.S.’s 

disclosure of sexual abuse constitutes emotional abuse. Moreover, the Court finds no merit to 

petitioner’s argument that there was no evidence of the emotional impact her actions had upon 

the child. In the instant proceeding, such evidence was unnecessary in light of the overwhelming 

evidence of petitioner’s continued minimization of the sexual abuse in her home and her lack of 

support for the victim, M.S. For these reasons, the Court finds no error in the circuit court 

adjudicating petitioner as having abused M.S. by her response to the child’s disclosure of sexual 

abuse. 

As to petitioner’s argument that the circuit court erred in adjudicating K.S. as abused, the 

Court finds no merit to this argument. Petitioner’s argument on this issue is based upon our prior 

holding in which we stated that 

[w]here there is clear and convincing evidence that a child has suffered 

physical and/or sexual abuse while in the custody of his or her parent(s), guardian, 

or custodian, another child residing in the home when the abuse took place who is 

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not a direct victim of the physical and/or sexual abuse but is at risk of being 

abused is an abused child under W.Va.Code, 49–1–3(a) (1994). 

Syl. Pt. 2, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995). According to petitioner, 

because the Court did not include emotional abuse in this holding, then emotional abuse as to 

one child in a home cannot be imparted to another child in the home. The Court, however, 

disagrees. Petitioner’s argument ignores the fact that In re Christina L. did not concern emotional 

abuse and, therefore, did not include the same in the holding cited above. Petitioner also ignores 

the plain language of West Virginia Code § 49-1-3(1)(A), which states that “‘[a]bused child’ 

means a child whose health or welfare is harmed or threatened by . . . [a] parent . . . who 

knowingly or intentionally inflicts . . . emotional injury . . . upon the child or another child in the 

home[.]” (Emphasis added). Based upon the plain language of this statute, it is clear that 

petitioner abused K.S. by inflicting emotional abuse on M.S. This is true even if petitioner’s 

assertion that K.S. was not paying attention during any such instance of emotional abuse is 

accurate. For these reasons, the Court finds no error in the circuit court adjudicating K.S. as an 

abused child. 

As to petitioner’s assignment of error alleging that the circuit court erred in implementing 

a family case plan that addressed issues for which petitioner was not adjudicated, we find no 

merit to this argument. While it may be true that certain issues, such as the conditions in the 

home and an alleged failure to protect the children, did not rise to the level of abuse or neglect, 

the Court finds no error in the DHHR attempting to remediate them. Moreover, the record is 

clear that petitioner agreed to this case plan and did not object to the same when implemented. 

This Court has previously stated that “silence may operate as a waiver of objections to error and 

irregularities at the trial which, if seasonably made and presented, might have been regarded as 

prejudicial.” State v. Proctor, 227 W.Va. 352, 359, 709 S.E.2d 549, 556 (2011) (quoting State v. 

Grimmer, 162 W.Va. 588, 595, 251 S.E.2d 780, 785 (1979), overruled on other grounds by State 

v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980)). Because petitioner failed to object to the case 

plan’s terms, we find that she has waived any argument on appeal as to this issue. Moreover, the 

record is clear that in terminating petitioner’s parental rights, the circuit court did not rely on 

petitioner’s non-compliance with any term that she claims was erroneous. As such, we find no 

error in this regard. 

Petitioner next argues that the circuit court erred in finding that she failed to successfully 

complete her improvement period because she did not believe that J.S. sexually abused M.S. 

Upon our review, we find no error based upon the voluminous evidence that petitioner failed to 

complete the terms of her improvement period. Contrary to petitioner’s argument that “there was 

no condition . . . which required her to absolutely believe the child,” petitioner’s case plan 

required that she “acknowledge [J.S] sexually abused his biological daughter and take 

appropriate measures to ensure [K.S.] is safe.” Despite this condition, the record shows that 

petitioner refused to believe that M.S. was sexually abused and even continued her relationship 

with the abuser, J.S. 

Petitioner’s therapist testified that although petitioner made certain progress in her 

services, she failed to make any progress in acknowledging that J.S. sexually abused M.S., 

despite overwhelming evidence the abuse occurred. During therapy, petitioner minimized 

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obvious signs that M.S. was abused and failed to recognize what she might do differently to 

protect K.S. in the future. Ultimately, these issues resulted in the therapist terminating services 

for petitioner because of her lack of progress in acknowledging the abuse in the home. 

Further, while petitioner argues that she was in the process of divorcing J.S., the record is 

clear that she possessed a packet of documents to obtain a pro se divorce proceeding for five 

months prior to disposition, yet failed to ever initiate the process. Moreover, recorded telephone 

calls between petitioner and J.S. while the latter was incarcerated evidenced their continued 

relationship. Contrary to petitioner’s argument that J.S. was found in her home upon his release 

and shortly before disposition because he was there to help her complete the divorce application, 

the service provider who discovered him did not believe petitioner’s account of his presence in 

the home. Ultimately, the circuit court also found petitioner’s explanation lacked credibility and 

further found that petitioner continued her relationship with J.S. throughout these proceedings. 

Because petitioner failed to acknowledge that J.S. sexually abused M.S. and continued her 

relationship with the child’s abuser in direct contradiction to the terms of her improvement 

period, we find no error in the circuit court finding that petitioner failed to successfully complete 

her improvement period. 

Finally, the Court finds no error in the circuit court terminating petitioner’s parental 

rights to K.S. Petitioner bases her argument on this issue primarily upon our prior holding, 

wherein we stated that 

W.Va.Code, 49–1–3(a) (1984), in part, defines an abused child to include 

one whose parent knowingly allows another person to commit the abuse. Under 

this standard, termination of parental rights is usually upheld only where the 

parent takes no action in the face of knowledge of the abuse or actually aids or 

protects the abusing parent. 

Syl. Pt. 3, In re Betty J.W., 179 W.Va. 605, 371 S.E.2d 326 (1988). However, petitioner’s 

reliance on this holding is misplaced. While petitioner may be correct that she did not aid J.S. in 

his sexual abuse or knowingly allow it to be committed, petitioner erroneously argues that the 

circuit court’s termination of her parental rights “did not make sense in light of the adjudicated 

deficiencies.” The Court does not agree. As noted above, petitioner was adjudicated for her own 

distinct emotional abuse of M.S. that was also imparted to K.S. as another child in the home at 

risk of abuse. Petitioner was granted an improvement period to remedy these conditions of abuse, 

which included a requirement that she acknowledge the sexual abuse in her home so as to better 

respond to the same in the future. However, the circuit court specifically found that petitioner 

failed to complete this requirement, among others, and that she did not successfully complete her 

improvement period. 

This same evidence supports the circuit court’s finding that there was no reasonable 

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

Pursuant to West Virginia Code § 49-6-5(b)(3), a situation in which there is no reasonable 

likelihood that the conditions of abuse or neglect can be substantially corrected includes one in 

which 

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[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[.] 

The circuit court specifically made this finding in regard to petitioner, based upon the evidence 

above related to her non-compliance with the terms of her improvement period and her refusal to 

acknowledge the sexual abuse perpetrated in her home. The circuit court further found that 

termination of petitioner’s parental rights was in K.S.’s best interests. Pursuant to West Virginia 

Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon these findings. 

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

December 22, 2014, order is hereby affirmed. 

Affirmed. 

ISSUED: June 15, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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