1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re S.S.

- 1

No. 2 1

- 0 7 95 ( Kanawha County 2 1

- JA

- 356 )



### MEMORANDUM DECISION

Petitioner Father S.S.

- 2

, by counsel Donnie L. Adkins II

, appeal s t he Circui t Co urt o f

Kanawha County ’s September 15

, 20 2 1 , order terminating h is parental rights to S.S.

- 1

. 1 The West Virginia Department of Health and Human Resources ( “DHHR”), by counsel Pat ri ck Morrisey and Britt any N. Ryers

- Hindbaugh , f iled a respon s e in suppo rt of t he c ircui t co urt’s

o r de r

. The guardian ad li tem

, Matthew Smith

, filed a response on the chil d ’s behalf in support of

the circuit court’s orde r

. On appeal, petitioner argues that the circuit court erred by failing to give his testimony “ enough weight ” through out the proceedings

.

Thi s Cou r t has considered the parties’ bri efs and t he record on appeal. The facts and legal

a rguments are adequately presented, and the decisi onal proce s s would no t be si gni fican tly aid ed

b y oral arg u ment. Upon consideration of the standa rd of review, th e bri e fs, a nd the record
present ed, the Cour t finds n o substantial question of law and no preju dicial error. For these

reasons, a memorand um dec ision affi r m ing th e c ir cuit cou rt’s order i s ap propriate u nder Rule 21 of the Rules of Appellate Procedure.

I n June of 2021, the DHHR filed a child abuse and neglect petition alleging that then

s eventeen

- year

- old S.S.

- 1 and his psychological parent, M.S., sou ght a dom estic violence protective order against petitioner. 2 At a hearing on th e matter, S.S.

- 1 testif ied that petitioner

1 Con sis t e nt w ith our l o ng

- sta n d in g pra ctice in cases wi th sens i tive facts, we use ini tials

wh ere necessary to prot ect t he identi ti e s of those inv olved in this cas e

. See In re K.H.

, 2 3 5 W

. V a

. 2 54, 773 S .E. 2d 2 0 (2015); Mel ind a H. v. W illiam R. II , 230 W. Va . 7 31, 7 42 S .E.2d 419 (2013) ; St ate v . Brandon B. , 218 W. Va. 324, 624 S.E.2 d 761 (2 005); St ate v. Edward Charles

L.

, 183 W. Va

. 6 41 , 3 98 S.E .2d 123 (1990). A dditionally, as the child and petitioner share the

same ini tials, we refer to them as S.S.

- 1 and S.S.

- 2, r espectively, throughout this memorandu m decisio n.

2 S.S.

- 1 ’ s psychological parent, M.S., was petitioner ’ s former wife. She was included as a nonabusing respondent in the proceedings below. 

### FILED
March 9, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 “ pi nned hi m against the wal l

, ” and a video of petitioner “ swinging a belt around like a whip whilst threatening the chi ld ” was introduced into evidence. The DHHR further alleged that S.S.

- 1 revealed he escaped the abuse by jumping out o f a window. S.S.

- 1 also stated that petitioner ’ s home was f ilthy an d inad equate. The domesti c violence protective order was granted

, and the DHHR was ordered to investigat e S.S.

- 1 ’ s living conditions. Upon interviewing the child, the

DHHR learned that he w as the primary care giver for p etitioner who was wheel chair b o und and

unable to provide daily care for himself

. The DHHR alleged that S.S.

- 1 ensured that petitioner ’ s basic needs wer e met and that the child ’ s education suffered be cause petitioner would “ blo w h is phone up ” while t he child wa s a t sch ool. S.S.

- 1 stated that he suspected pet itioner was abusing his prescription pain medication and that petitioner had th reatened self

- harm. Finally, the DHHR alleged that S.S.

- 1 did no t feel safe in the home with pe tit ioner and no long er wanted to provide

care for pe ti tioner

.

The circuit court held an adjudicatory hearing in July of 2021. Petitioner d enied the allegations in the petitio n ; he den ied that the home was unclean and blamed any mess on S.S.

- 1.

S.S.

- 1 te st ifi ed tha t he was afraid of petit ioner while petiti o ner was swinging the belt at him and that petitioner actually struck him with t he belt “a couple of times or more. ” S.S.

- 1 testified that

there ha d been other in cidents tha t caused him to fear peti tioner. S. S.

- 1 ex plai ned that petitione r

expe cted S.S.

- 1 t o clean up after him and testified that the home was “ very messy

. ” S.S.

- 1

further testified that petitioner would send him text messages while he was in school to ask the

child to come home and help him. S .S

. - 1 tes tified that he did not wish to live with petitioner

. Ul timately, the circuit court found that petitioner ’s testi mony was not c redible . The circuit court adjudicated petitioner as an abusing parent and S.S.

- 1 a s a n abused and ne glected chil d.

In S ep t ember of 2021, the circuit c ourt held the fina l dispositio nal hearing. A DHHR

worker testified that the DHHR was recommending termination o f petitioner ’s par ental rights and post

- termi nation visitation at the child ’s request. The DHHR worker exp lained t ha t petit ioner failed to acknow ledge the alleg ati o ns of neglect or abuse “despite [his child ’s] previou s testimony and a video ” of the abuse. Petitioner testified and ag ain denied the allegations

in the petition

.

Ultimately, the circuit court foun d that p et i t ioner fail ed to acknowledge the allegations o f abuse and neglect . T he circuit court , therefore, conclude d t hat there was no reasonable likelihood

that the conditions of neglect or abuse could be substantially corrected in the near fu ture and that

termi na t io n of petit ioner ’s p arental rights was necessa r y for the child ’s welfare. Accordingly, the circuit court terminated petit ioner’s parental rights by its September 15 , 2021, order. Petitioner now appeals that order. 3

T he Co urt ha s pr e vi ou sly he ld :

3 The mother consen te d to t he legal g uardi anship of S.S.

- 1 by his p s ychol ogical parent

and r espondent below, M.S. According to the parties, the permanency plan for S.S.

- 1 is legal guardianship by M.S. , as per his wishes.3 “Although conc lusions of law re ac hed by a circ u i t cou rt ar e subject to de

novo rev ie w, wh en an ac tion, suc h as an a buse a nd negle ct c ase , i s tried upo n the

f ac ts w itho ut a j ury, th e c ircuit court shall m ake a determ in at ion ba se d u pon th e

ev i de nc e an d shall make fin dings of fact and conc lu sions of law a s t o w hethe r such child is abused o r negle cte d. Th ese fi ndi n g s shall not b e set as id e by a

r ev iewing co u rt unl es s cl earl y er ro neous. A f inding is clearly e r roneous when

, al tho ugh t her e is e vi de n ce t o su pp ort the findin g, th e reviewing court o n the entire

e v id enc e is left with the de finite a nd firm co nv i ct ion th at a mi stake has b een

comm it t e d. Ho w ev er, a rev i ewing co ur t may not ov erturn a f inding simply

becau s e it would h av e dec ide d the case di ff e re nt ly, an d it must affi rm a finding if

the ci rc uit court’s a c c ou nt of th e evidence is pl ausible in ligh t o f t he recor d

v i e we d in its en tirety.” S y l . P t. 1, In In ter e st of Ti ff

an y Ma rie S. , 196 W .Va . 223,

470 S.E.2d 1 7 7 (1996).

Sy l. Pt . 1

, In re Cec il T

. , 22 8 W. V a. 89, 717 S.E .2d 8 73 (2011).

On ap peal, petitio ner argues tha t the circuit court erred in not giving hi s t estimo ny enough weight throug hout the proceedings. Petitioner asserts that he is a fit parent and that the

circuit court ’ s findin gs t o t he contrary are clearly erron eou s. We f ind petitione r is entitled to no

relief.

“ [ W e s t Virginia Cod e § 49

- 4

- 601 (i) ], requires the [DHHR], in a child abuse or neglect case, to prove ‘conditions existing at the time of the filing of t he petition . . . b y c lear and convincing [evidence ].’ The st atute, however, d oe s not specify any partic ula r manner or mode of testimony or evidence by which the [DHHR] is obligated to meet this burden.” Syllabus Point 1, In Interest of S.C.

, 168 W.Va. 366 , 284 S.E.2d 86 7 (1 98 1 ).

Syl. Pt. 1, In re Joseph A. , 199 W

. Va. 438, 485 S

. E. 2d 176 (1997) ( citations om i t ted). This

Cou rt has ex p la ine d that “‘clear a n d convincin g’ i s th e measu re or degree of proof that will produce in the mind o f the fa ctf i nder a fir m beli e f o r con vict io n as to the allegations sought to be

est ablished.” I n re F.S. , 233 W. Va. 538, 54 6

, 75 9 S.E.2d 769 , 77 7 ( 201 4). Ho wever, “ t he cl ear and convin ci n g standard is ‘ inte rmediat e, be ing more th an a mere pre po nderance, b ut not t o the

extent o f such certaint y a s i s req uired beyo nd a rea sonable do ubt as in cr iminal case s .’” Id

.

Here, t he circuit court heard and w eighed the contradictory testimony of petitioner and

S.S.

- 1. Ultimately, the circuit court found that petitioner was no t credible and relied on the

chil d ’ s testimony

. We ha ve he ld that “[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 d eterminati on s .” Michael D.C. v

. Wan da L.C. , 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997). Based on the cir cuit court ’ s credibility d etermination, we f ind no err or with the weight the circui t court gave to petitioner ’ s

te stimony that was presented at the adjudicat or y hearing

.

Further, we find no error in the weight the circuit court ga ve t o petitioner ’ s dispos itional testimony. Petit ion er testified and den ied th e a llegations of neglect and a buse . Even when4 confronted with the fact that the circuit court found tha t h e had abused and neglected S. S.

- 1, petitioner asserte d that the find ing was based on lies. The circuit court concluded that petitioner

failed to ackno wledge the conditions of neglect and abuse . Clearly, the circuit court relied upon petitioner ’ s denial an d gave it the appropriate weig ht

. Criti cally, t his Court has re cogniz ed that

“ [i ]n order to remedy the abuse and/or neglect problem, the problem must f irst be acknowledged. ” In re Timber M. , 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) ( cit ation

omitted )

. This f inding , which petitione r does no t challenge on appeal, ful ly s upports the circuit

court ’ s finding that there was no reasonable likelihood that t he conditions of neglect or abuse would be substantially corrected in the near future

.

“ T ermination of p a rental right s, the most drast ic re me dy und er the statutory provision coverin g the disposition of neglected chil dren, [ West Virgi nia Code § 49

- 4

- 604]

. . . may be emplo yed with out the us e of intervening less

restrictive alternatives when it is found that t h ere is no reasona ble likeliho od

un de r [ Wes t Virginia Code § 49

- 4

- 604 ( d ) ]

. . . that conditions of neglect or ab use can be substa ntially corrected.” Sy llabus point 2, I n 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 the circuit court ’ s find ing

is ful ly suppo rted by the record, we find no error in the circuit court ’ s order terminat ing petitioner ’ s par ental r ights to S.S.

- 1.

Fo r the forego ing reas on s , we find no erro r in the de c isi o n o f the cir cu it c ourt

, and its September 15

, 20 2 1 , o rder is h e reby aff irmed.

Affirme d.

ISSUED : 

### March 9, 2022

CONCURRE D IN BY :

Chief Ju stice John A. Hutchison

Ju sti ce Eli zabeth D. Walker

Jus tice Tim Armstead

Justice William R. Wooton

Justice Alan D. M oats sitting by temporary assignment