### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

FILED In re R.J.-1, M.J., and T.J. 

### June 11, 2018

EDYTHE NASH GAISER, CLERK No. 18-0047 (Webster County 17-JA-10, 11, and 12) SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Father R.J.-2, by counsel Christophe r G. Moffatt, appeals the Circuit Court of Webster County’s January 2, 2018, order terminating hi s parental rights to R.J.-1, M.J., and T.J. 1 The West Virginia Department of Health and Human Resources (“ DHHR”), by counsel S.L. Evans, filed a response in support of the circui t court’s order and a s upplemental appendix. The guardian ad litem (“guardian”), Mary Elizabeth Snea d, filed a response on be half of the children also in support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in adjudicating him as an abusing parent and terminating hi s parental rights 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 January of 2017, the DHHR f iled a child abuse and neglec t petition against petitioner
and the mother. 2 The DHHR alleged that a Child Protect ive Services (“CPS” ) worker observed
that R.J.-1 suffered from a severe medical conditi on which attacked his joints, muscles, and flesh and required regular and constant care in addi tion to normal care associ ated with good hygiene and regular feeding. According to the DHHR, the child did not appear to be fed, cleaned, or medicated regularly. The DHHR reported that then three-year-old M.J. ha d no speech or ability to articulate words, was not potty-trained, and appeared to have no socialization or human
interaction skills that would be normal for a chil d of her age. The CPS worker found M.J. in her bedroom, which had a broken door handle and rende red the child unable to open the door from

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, because a child and petitioner share the same initials, we will refer to them as R.J.-1 a nd R.J.-2, respectively, throughout this memorandum
decision.

2 Petitioner is the biological father of M.J. and T.J., and the stepfather of R.J.-1.

1the inside, essentially locking her in the r oom. The DHHR also alleged that the home was extremely cluttered and dirty, wi th trash scattered a bout the home. Dog food and animal feces
littered the floors and the toilet was covered in human feces. Medication and sharp objects were strewn throughout the floors and within reach of the children. A screw was observed in then two

month-old T.J.’s crib. The mother stated that M. J. had only been in her room for approximately thirty minutes and that she sometimes put the child in the room with the broken door handle
because she was “hard to handle.” After obser ving the condition of the home, the DHHR took custody of the children.

The DHHR further alleged that, the following da y, R.J.-1’s physical therapist opined that elements of his therapy and treatm ent were being ignored on a regul ar basis at home, resulting in
the lack of medication for his skin condition and the disuse of a special chair for his muscles, bones, and posture. The child was subsequently admitted to Summersville Regional Medical Center, in Summersville, West Virginia. The child was diagnosed with failure to thrive and transferred to Ruby Memorial Ho spital in Morgantown, West Vi rginia. There, the child was diagnosed with Familial Mediterranean Fever 3 (“FMF”), severe malnutrition, dehydration, necrosis, open wounds to his body, child neglect, a feeding tube that was visibly soiled with animal feces, and various other medical conditions . The then five-year-old child only weighed twenty-two pounds upon admission and had to under go a procedure to repl ace his feeding tube. The petition further indicated that the child had last been seen regarding his feeding tube in April of 2016. The child was scheduled for a follow-up thr ee months later, but the parents did not keep the appointment. In sum, the DHHR alleged that th e parents were unable to provide a safe, clean home and were unable to provide the children with adequate medical care and treatment in a regular and timely manner.

The circuit court held a preliminary hear ing in February of 2017. In September of 2017,
the circuit court held an adjudicatory hearing wh erein it heard the testim ony of several witnesses regarding R.J.-1’s medical condition. An inpatient pediatrician from Wes t Virginia University Children’s Hospital testified that R.J.-1 was ad mitted to the hospital in January of 2017 with several diagnoses including a chronic skin disord er and malnourishment, as well as for his own protection due to unsafe conditions in the home. 4 The pediatrician testified that the child only weighed twenty-two pounds at the time and had not gained any weight in seventeen months,

3 “Familial Mediterranean Fever . . . is an inherited disease, characterized by recurrent attacks of fever, inflammati on of the abdominal lining (peritonitis), inflammation of the lining surrounding th e lungs (pleurisy), painful, swollen joints (arthralgia and occasionally arthriti s), and a characteristic ankle rash. This condition is also sometimes referred to as recurrent polyserositis or familial paroxysmal polyserositis.”

Learning About Familial Mediterranean Fe ver, https://www.geno me.gov/12510679/learning

about-familial-mediterranean-fever /, (last visited May 3, 2018).

4 FMF had previously been diagnosed, but the pe diatrician testified that a dermatologist treating R.J.-1 considered this diagnosis incons istent with the child’s symptoms. While FMF was not ruled out as a diagnosis, the pediatrician treated the child’s illness as undiagnosed.

2despite having a functional feeding tube. The pediatrician described the child as a “bag of bones” at that time, and noted that he had numerous scars and pressure sores from not being moved. Additionally, he testified that the child’s “nose was pretty much nonexistent, and he had some sores on his face.” The child also had joint contract ures, which left his joints in a flexed position, and he was unable to use his hands. Regarding treat ment, the pediatrician testified that the child gained weight while in the hospital, which demonstrated that there were no health issues preventing him from gaining wei ght, but rather a lack of nutrition. While it was clear the child had an underlying disease, the pediatrician testif ied that lack of nutrition likely worsened the child’s symptoms. The pediatrician opined that ha d the child not been admitted to the hospital at that time, he likely would ha ve died within the week.

R.J.-1’s primary care physician testified that, as of August of 2017, following removal from petitioner’s care, the child weighed forty pounds and his joint contractures had greatly improved. The physician testified that she agreed with the pediatri cian’s opinions and noted that as soon as the child received therapy and nutrition, he “made a complete turnaround.” The DHHR then presented the testimony of R.J.-1’s former pediatrician, who treated him from infancy until the child was around th ree years old. The child’s former pediatrician testified that the mother had problems with following through w ith treatment or appointments. In fact, he testified that he reported to the mother that “[R.J.-1] was falling into medical neglect here because [the parents] couldn’t get him to his ap pointments” and whether due to financial means or abuse, he suggested that CPS be called to help care for the child. The pedi atrician testified that he did not see R.J.-1 again after that conversation.

M.J.’s foster parent also testified. She stated that when M.J. first came to her home, she could not speak or communicate. She testified that the child barked like a dog and babbled. The
child also ran on all four extremities and tried to drink water out of the toilet. Since being in the foster home, the foster parent testified that M. J. learned words and had been enrolled in school. However, the foster parent stat ed that after attending visitation with the parents, M.J. would begin walking on all four extremities again.

After hearing evidence, the circuit court found that the pa rents did not have a fit and suitable home and failed to provide appropriate food, medical care, and nutrition to R.J.-1 for an extended period of time. The ci rcuit court noted that although R.J.-1 had a serious medical condition, the parents were nevert heless neglectful in his medical care as the child’s weight and mobility significantly improved with proper tr eatment and nutrition after being removed. Accordingly, the circuit court adjudicat ed the parents as abusing parents.

The DHHR held a dispositional hearing in November of 2017 wherein a CPS worker testified that the parents failed to express unde rstanding regarding the circumstances of abuse and neglect. The CPS worker testif ied that the parents indicated th ey understood that they needed to clean their home, but alleged that they did ever ything they were told to do regarding R.J.-1’s medical care. The CPS worker stated that despite participating in adult life skills and parenting classes, the parents stil l failed to acknowledge th e issues relating to R. J.-1’s medical problems
and nutrition. Petitioner then testified and requested an improvement period. Petitioner acknowledged that the home was unfit and stated that he would participate in any services granted to him. Petitioner denied that he failed to feed R.J.-1, but admitted that the child’s

3condition had deteriorated. Due to his work schedule, petitioner st ated that he only fed R.J.-1 through his feeding tube approxim ately two times and that the mo ther usually fe d the child. When petitioner was asked what he did wrong in taking care of the children, he responded,

Like I said, whatever’s recommended, we’d do to improve, but as far as what we was being told to do, we was doing ever ything recommended for us to do and, if there was something that we was doing wr ong, I’m more than willing to fix it, so we can get the kids back and do better.

However, petitioner could not explain why the child ’s weight nearly doubled in the time since he
had been removed from the home. After hearing evidence, the circui t court noted that it was not required to exhaust every specu lative possibility for rehabili tation, found that there was no reasonable likelihood that pe titioner could correct the conditions of abuse in the near future, and concluded that termination was necessary for the children’s welfare. It is from the January 2, 2018, dispositional order terminating his parental rights to the children th at petitioner appeals. 5

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 th at the circuit court erred in adjudicating him as an abusing parent. Specifically, petitioner ar gues that he was able to reme dy the dirty conditions in the home by cleaning it. Further, he argues that he soug ht treatment for R.J.-1, followed the advice of doctors, and sought second opinions as to his medi cal condition. According to petitioner, the fact that R.J.-1’s weight nearly doubled in the seve n months between being removed from the home and the adjudicatory hearing does not establish that he medically neglected the child. We disagree.

5 The mother’s parental rights were terminated below. D.B., R.J.-1’s biological father, voluntarily relinquished his parental rights below. The children have been placed in foster homes and the permanency plan is adoption therein.

4“W.Va.Code [§] 49-6-2(c) [now We st Virginia Code § 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 th e petition . . . by clear and convincing [evidence].’ The statute, however, does not specify any particular 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 867 (1981).

Syl. Pt. 1, In re Joseph A. , 199 W.Va. 438, 485 S.E.2d 176 (1997) (citations omitted). This Court has explained that “‘clear and c onvincing’ is the measure or degr ee of proof that will produce in
the mind of the factfinder a firm belief or c onviction as to the alle gations sought to be
established.” In re F.S. , 233 W.Va. 538, 546, 759 S.E.2d 769, 777 (2014) (citing Brown v.
Gobble , 196 W.Va. 559, 564, 474 S.E.2d 489, 494 (1996)). However, “the clear and convincing standard is ‘intermediate, being more than a me re preponderance, but not to the extent of such certainty as is required beyond a reas onable doubt in criminal cases.’” In re F.S. , 233 W.Va. at 546, 759 S.E.2d at 777 (quoting Cramer v. W.Va. Dep’t of Highways , 180 W.Va. 97, 99 n.1, 375 S.E.2d 568, 570 n.1 (1988)).

Pursuant to West Virginia Code § 49-1-201, a neglected child is one

[w]hose physical or mental health is harm ed or threatened by a present refusal, failure or inability of the child’s parent . . . to supply the child with necessary food, clothing, shelter, supervis ion, medical care or educ ation, when that refusal, failure or inability is not due primarily to a lack of financial means on the part of the parent, guardian or custodian[.]

After reviewing the record, we find that sufficient evidence existed upon which to adjudicate petitioner as an abusing parent. The inpatient pediatri cian who attended to R.J.-1 during his hospital stay testified that the child was near de ath at the time of his removal from the home and
would have died within the week had he not be en admitted to the hospital. Testimony established that the child had not gained weight in seve nteen months and only weighed twenty-two pounds at five years old. What appeared to be animal feces was in the child’s feeding tube. Moreover, the child had sores and lesions all over his body such that his nose had nearly completely deteriorated. While petitioner argues that the child’s undiagnosed illness largely contributed to his poor health at the time of re moval, the expert testimony of th e pediatrician established that the illness did not prevent the child from gr owing. Several times throughout this testimony, the pediatrician stated “if you feed hi m, he will grow[.]” In fact, th e child’s weight nearly doubled in the seven months following his removal from petitioner’s care. The pediatrician and the primary care physician both testified that while R.J.-1 w ould have had problems with his skin regardless of his caloric intake, lack of nutri tion certainly attributed to the severity of his sores and lesions and his health in general. Regarding the other ch ildren, the evidence established that three-year

old M.J. could not speak, barked like a dog, ran on all four extremities, and had no human
interaction or socialization skill s, and a loose screw was found in two-month-old T.J.’s crib. As such, we find that the record demonstrates that the children were abused and/or neglected and that the circuit court properly adjudicated pet itioner as an abusing parent based upon clear and convincing evidence.

5Petitioner also argues that the circuit court er red in terminating his parental rights without first granting him an improvement period. Specifi cally, petitioner argues th at he was compliant with the services offered to him, which demonstrat ed that he would have fu lly participated in an official improvement period. Howe ver, we find that petitioner’s argument is without merit. The decision to grant or deny an improvement period rests in the sound discreti on 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 discretion in decidi ng 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 grant an improvement period within the applicable statutory requirements.”). We have also held that a parent’s “entitlement to an improvement period is conditioned upon the ability of the [parent] to demonstrate ‘by clear an d 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).

We note that while petitioner was not gran ted a formal improvement period, he was provided with several services during the unde rlying proceedings including adult life skills classes, parenting classes, and drug screens. However, the CPS worker testified that, while petitioner complied with adult life skills and pare nting classes, he failed to recognize his wrong

doing regarding R.J.-1’s lack of nutrition. Du ring his testimony at the dispositional hearing, petitioner could not even elaborate on wh at he had done wrong, stating “we was doing everything recommended for us to do and, if th ere was something that we was doing wrong, I’m more than willing to fix it. . . .” Further, the CPS worker’s testimony established that CPS
exhausted its resources and could not offer a ny other services which would help petitioner recognize the severity of R.J.-1’s medical neglect. 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 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) (quoting In re Charity H. , 215 W.Va. at 217, 599 S.E.2d at 640). Because petitioner failed to acknowledge how his actions constituted abuse and/or neglect of the children, an improvement period was rendered futile. Accordingly, we find that the circuit c ourt did not err in denying him the same.

Moreover, we find that the circuit court did not err in terminating 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 wh en necessary for the children’s
welfare. West Virginia Code § 49-4-604(c) (3) clearly indicates that a situation in which there is
no reasonable likeli hood the conditions of ab use and neglect can be substantially corrected
includes one in which

6[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 sufficient evidence upon which to terminate petitioner’s parental rights. As mentioned abov e, testimony established that petitioner was provided with adult life skills a nd parenting classes, but failed to recognize the extent of the abuse perpetrated against the children. R.J.-1 was near death when he was removed from the home and petitioner continued to maintain at the dispositional hearing that he was caring for the child as directed. As such, he was unable to successfully follow thr ough with the services provided and correct the conditions of abuse. While petitioner argue s that he should have been granted an improvement period prior to the termina tion of his parental rights, we have previously
held that

“[t]ermination of parental rights, the most drastic remedy under the statutory provision covering the dispositi on 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 re strictive 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 c onditions of neglect or a buse 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 agree that there was sufficient evidence fo r the circuit court to find that there was no reasonable likelihood that petitioner could correct the condi tions of abuse and neglect in the near future and termination was necessary for the ch ildren’s welfare. As mentioned above, circuit
courts are directed to terminate parental rights upon such findings.

For the foregoing reasons, we find no error in the decision of the circuit court, and its January 2, 2018, order is hereby affirmed.
Affirmed.

ISSUED : June 11, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

Justice Loughry, Allen H., II suspende d and therefore not participating.

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