STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

In Re: B.S. and N.S. May 24, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

No. 13-0060 (Raleigh County 10-JA-147 & 148) OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father’s appeal, by counsel Kris N. Kostenko, arises from the Circuit Court of 

Raleigh County, wherein his custodial and guardianship rights were terminated for both children, 

and visitation rights were terminated for N.S. by order entered on October 17, 2012. The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel Angela Alexander 

Walters, has filed its response. The guardian ad litem, Sante Boninsegna, Jr., has filed a response 

on behalf of the children. The child’s mother, by counsel Winifred L. Bucy, co-petitioner below, 

has filed a response. 

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 is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

On December 7, 2010, the DHHR filed a petition for abuse and neglect based on 

allegations that Petitioner Father had inappropriately disciplined his son, N.S., using a belt and 

board and caused bruises to N.S.’s body. Adjudicatory hearings were held over four dates from 

May of 2011 to February of 2012. At the adjudicatory hearings, Kelly Estep, a DHHR case 

worker, testified that N.S. told her that he had been beaten by Petitioner Father with a belt and a 

board, but the children’s babysitter, paternal aunt, paternal grandmother, and Petitioner Father 

testified that N.S. had a history of intentionally injuring himself and blaming it on others. Terri 

McDonald, who taught N.S. at a behavior class, testified that she did not believe N.S. when he 

told her he was abused, and that Respondent Mother tried to paint Petitioner Father in a bad light 

to N.S. At the dispositional hearing in October of 2012, the circuit court determined that 

Petitioner Father consistently denied the abuse of N.S. and, therefore, there could be no case plan 

to remediate the basis for the petition. The circuit court terminated the custodial and guardianship 

rights to both children, but permitted supervised visitation with B.S. for no more than eight hours 

per month. 

On appeal, Petitioner Father argues that the circuit court erred in finding that the DHHR 

showed by clear and convincing evidence that Petitioner Father physically harmed his son 

because the only testimony supporting such a finding was based on a child “who had an extensive 

history of hurting himself and blaming it on others, including his father.” Respondent Mother and 

the guardian argue that the testimony stating that N.S. self-inflicted his injuries was not credible 

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due to the witnesses’ inability to answer questions on cross-examination after having detailed 

answers for Petitioner Father’s counsel. 

Petitioner Father further argues that the court erred in refusing to grant him an 

improvement period. Petitioner reiterates that the evidence was not clear and convincing that he 

harmed N.S., and, therefore, he should have been permitted an improvement period to maintain a 

home in which the children could feel comfortable. Respondent Mother, the guardian, and the 

DHHR argue that because Petitioner Father denies culpability for the abuse of his child, an 

improvement period is an exercise in futility and, therefore, the circuit court should be affirmed. 

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 

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). This Court has 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 . . . .’ Syl. Pt. 1, in part, In re 

R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syl. Pt. 4, in part, In re Cecil T., 228 W.Va. 89, 

717 S.E.2d 873 (2011). Moreover, this Court has stated: 

“in 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.” West Virginia Dept. of Health and Human Resources v. Doris S., 197 

W.Va. 489, 498, 475 S.E.2d 865, 874 (1996) 

In re Kaitlyn P., 225 W.Va. 123, 126, 690 S.E.2d 131, 134 (2010). 

Upon our review, the Court finds no error in the circuit court’s denial of an improvement 

period or its termination of Petitioner Father’s custodial, guardianship, and visitation rights. The 

Court finds that the circuit court was presented with sufficient evidence upon which it based 

findings that Petitioner Father would not substantially comply with an improvement period and 

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to, accordingly, deny his motion for an improvement period. The Court also finds that the circuit 

court was presented with sufficient evidence upon which it based its findings that there was no 

reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in 

the near future and that termination was necessary for the children’s welfare. Pursuant to West 

Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate custodial and guardianship 

rights upon such findings. We have previously held that, in ruling on post-termination visitation, 

“‘[t]he 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 part, In re Daniel D., 211 W.Va. 79, 562 

S.E.2d 147 (2002). Upon our review, we find that the record shows that such visitation would not 

have been in N.S.’s best interest. For the foregoing reasons, we find no error in the decision of the 

circuit court, and the termination of petitioner’s custodial, guardianship, and visitation rights and 

denial of an improvement period is hereby affirmed. 

Affirmed. 

ISSUED: May 24, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Menis E. Ketchum 

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