In re J.C.-1 and K.C. ( 2022 )

FILED
May 12, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re J.C.-1 and K.C.
No. 21-1042 (Randolph County 20-JA-105 and 20-JA-106)
MEMORANDUM DECISION
Petitioner Father J.C.-2, by counsel Steven B. Nanners, appeals the Circuit Court of
Randolph County’s December 3, 2021, order terminating his parental rights to J.C.-1 and K.C. 1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick
Morrisey and Andrew T. Waight, filed a response in support of the circuit court’s order. The
guardian ad litem (“guardian”), Heather M. Weese, filed a response on behalf 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, denying him an improvement period, and terminating his
parental rights.
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.
The DHHR filed an abuse and neglect petition against petitioner in August of 2020.
Relevant to the instant case, petitioner and the children were the subject of a family court
proceeding, during which Child Protective Services (“CPS”) became involved. For reasons not
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 one of the children and petitioner share the
same initials, we will refer to them as J.C.-1 and J.C.-2, respectively, throughout this memorandum
decision. Finally, because two of the children share the same initials, we will refer to those children
as M.C.-1 and M.C.-2, respectively, throughout this memorandum decision. Although M.C.-1 and
M.C.-2 were initially listed in the style of the case, they are not at issue on appeal and, accordingly,
their names have been removed.
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apparent from the petition, petitioner’s two stepchildren M.C.-1 and M.C.-2, who are not at issue
on appeal, were placed or left with their paternal grandparents, and the grandparents became unable
to properly care for the children due to the grandparents’ age and medical conditions. In September
of 2019, the DHHR received a referral that M.C.-1 and M.C.-2 were frequently observed to be
unkempt and dirty and that a mass or knot had been allowed to form in M.C.-2’s hair to such a
degree as to cause the child pain. CPS workers investigated the referral and observed the mass in
the child’s hair, which appeared to have been glue or slime that solidified into a hard knot.
The investigation into M.C.-1 and M.C.-2 prompted a CPS worker to visit petitioner’s
home unannounced, and she observed the home to be in deplorable condition, with trash strewn
throughout the home and a roach infestation. Further, petitioner owned eleven cats and one dog,
and the smell of animal urine was overwhelming. The mother admitted to the CPS worker that the
two younger children she shared with petitioner, J.C. and K.C., were living in the home and that,
although not currently present, they would return with petitioner later that evening. Based on the
conditions of the home, the worker sought ratification to remove the children. Later, the worker
discovered that, at some point, K.C. had been taken to her maternal grandparents’ home in Ohio,
which was concerning given that the maternal grandparents’ parental rights to their three children,
including the mother, had been previously terminated.
Lastly, the DHHR alleged that petitioner had an extensive history of CPS involvement.
Specifically, the DHHR alleged that a child abuse and neglect petition was filed against petitioner
in 2000 regarding an older child after he shook her, engaged in domestic violence with her, and
abused alcohol, and the DHHR further noted that petitioner had previously been adjudicated as an
abusing parent prior to 2000 for reasons not apparent from the petition. In the 2000 proceedings,
petitioner was adjudicated as an abusing parent and his parental rights to his older children were
eventually terminated. 2 Another petition was filed against petitioner in 2007 regarding a
subsequent born child as a result of his prior terminations and inadequate home conditions.
Petitioner was adjudicated as an abusing parent in those proceedings, and the child was returned
to his care following his successful completion of an improvement period. Yet another petition
was filed against petitioner in 2010 alleging that petitioner’s home was unsafe and unsanitary.
Petitioner was adjudicated as an abusing parent in those proceedings and, eventually, his parental
rights to his two children were terminated. Another petition was filed against petitioner in 2012,
following the birth of child K.C. It is unclear whether petitioner was adjudicated in those
proceedings but, ultimately, the child was returned to his care. Accordingly, the DHHR alleged
that aggravated circumstances existed due to the termination of petitioner’s parental rights to four
older children.
Petitioner waived his preliminary hearing. In January of 2021, petitioner underwent a
parental fitness examination. The evaluating psychologist gave petitioner a guarded prognosis for
attaining minimally adequate parenting and indicated that petitioner currently lacked the parental
capacity to care, protect, and change in order to provide adequately for the children at that time.
The psychologist opined that petitioner “has deficits in understanding appropriate parenting
techniques” but that petitioner claimed to not need further parenting instruction due to having
2
Although unclear, it appears that petitioner’s parental rights to two older children were
terminated.
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already received the same in prior proceedings. The psychologist further indicated that petitioner
believed he had no parenting issues that needed addressed and did not believe he had significant
problems with alcohol or substance abuse.
In February of 2021, the DHHR filed an amended petition against petitioner after the
children underwent Child Advocacy Center (“CAC”) interviews. According to the DHHR, K.C.,
then approximately age eight, reported being sexually abused by her maternal grandfather while
in Ohio. The child further reported that she and J.C.-1 lived with her parents and that her parents
abuse marijuana, described the pipe they used to smoke the substance, and stated that her parents
kept loaded firearms within their reach in the home. During his interview, J.C.-1, then
approximately age seven, denied any sexual abuse or drug abuse in the home, but admitted that
petitioner frequently yelled at the child’s uncle. Following the CAC interviews, K.C. reported to
her foster family that petitioner also sexually abused her, and J.C.-1 reported to his foster family
that he lied and had not told the truth. As such, additional interviews were scheduled. The DHHR
also alleged that, after supervised visits with the parents, J.C.-1 and K.C. exhibited concerning
behavioral issues. J.C.-1 urinated on the bathroom floor and in a cup, both children defecated in
their pants, both children threw toilet paper with feces on the floor, and K.C. destroyed makeup
and wrote on the foster family’s couch with a marker, among other behaviors.
The circuit court held an adjudicatory hearing in April of 2021. A CPS worker testified
regarding her investigation into petitioner’s home and indicated that the home was in deplorable
condition. The worker stated that trash was piled throughout the home with a small walkway to
pass through and that trash covered the children’s beds, except for a single mattress on the floor.
The worker testified that there were at least eleven cats in the home and that there was a very
strong odor of spoiled trash and cat urine. Further, bugs were observed throughout the home and
roaches were found in the kitchen. The worker testified that, upon attempting to remove the
children from petitioner’s custody, she had to travel to Ohio to retrieve K.C. and reported that the
maternal grandparents were inappropriate persons to supervise the child as their parental rights to
their children had previously been terminated. The worker confirmed that K.C. and J.C.-1 lived in
the home with petitioner and the mother. Lastly, the worker testified regarding petitioner’s prior
child abuse and neglect proceedings, which raised allegations of poor home conditions and alcohol
abuse. The DHHR admitted pictures of the home and orders from petitioner’s prior abuse and
neglect proceedings into evidence. At the conclusion of the hearing, the circuit court held
petitioner’s adjudication in abeyance so that it could review the CAC interviews.
At the reconvened adjudicatory hearing held in September of 2021, the circuit court
adjudicated petitioner as an abusing parent. The court found that petitioner maintained sub-
standard living conditions that endangered the health, safety, and welfare of the children; used
drugs in front of the children; had previously been adjudicated during prior proceedings as an
abusing parent for the same poor home conditions at issue in this case; and that his parental rights
to his older children had been terminated for his failure to remedy those conditions.
In November of 2021, the circuit court held a dispositional hearing. Petitioner moved the
court for an improvement period and testified that he had been granted an improvement period
during two prior cases and that he had successfully completed the same. Petitioner indicated that
he was willing to comply with an improvement period and had taken steps to improve the condition
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of the home, including fixing the flooring and generally cleaning the home. However, on cross-
examination, petitioner was asked what he needed to improve upon during an improvement period
and he responded, “I don’t know.” Petitioner also denied abusing and neglecting the children in
the instant proceedings and minimized the bases for the prior petitions filed against him, claiming
that they were due to alcohol abuse and did not involve poor home conditions.
The DHHR presented the testimony of the executive director for North Central Community
Corrections. The director testified that petitioner was enrolled in a drug testing program in
September of 2020 and that the last time petitioner “checked in” with the program was in October
of 2020.
Following testimony, the circuit court found that petitioner had been the subject of six
abuse and neglect proceedings, all with similar allegations, and that his parental rights had been
terminated on two different occasions. The court found that petitioner denied any parenting deficits
and was adamant that he had done nothing wrong. The court also noted that petitioner had not
participated in drug screens. Given that petitioner had repeatedly been involved in abuse and
neglect proceedings, that his parental rights to older children had been terminated on two
occasions, and that he failed to participate in the instant case, the court found there was no
indication that petitioner would participate in an improvement period or take steps to remedy the
conditions of abuse and neglect. Accordingly, the court denied petitioner’s motion for an
improvement period and terminated his parental rights upon finding that there was no reasonable
likelihood that he could correct the conditions of abuse and neglect in the near future and that
termination was necessary for the children’s welfare. Petitioner appeals the circuit court’s
December 3, 2021, order terminating his parental rights to J.C.-1 and K.C. 3
The Court has previously established the following 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 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).
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The mother’s parental rights to the children were terminated below. The permanency plan
for the children is adoption in their foster home.
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On appeal, petitioner argues that the circuit court erred in adjudicating him as an abusing
parent. According to petitioner, the DHHR failed to present sufficient evidence to determine that
the children were exposed to poor home conditions such that they were abused and neglected.
Petitioner admits that there was testimony of clutter and trash in the home but that such conditions
did not rise to the level of abuse and neglect, particularly when there were working utilities and
food in the home. Moreover, petitioner claims that the DHHR failed to establish how long the
family lived in that home or that the children were residing in the home at the time of the petition’s
filing. Lastly, petitioner claims that the DHHR “did not sufficiently prove the issues involving
aggravated circumstances” as testimony established that petitioner had twice remedied the
conditions of abuse and neglect in prior cases and had his children returned to his care.
We find petitioner’s arguments to be without merit. This Court has held that
“[West 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 the 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 convincing’ is the measure or degree of proof that will produce in
the mind of the factfinder a firm belief or conviction as to the allegations sought to be established.”
In re F.S., 233 W. Va. 538, 546, 759 S.E.2d 769, 777 (2014) (citation omitted). However, “the
clear and convincing standard is ‘intermediate, being more than a mere preponderance, but not to
the extent of such certainty as is required beyond a reasonable doubt as in criminal cases.’” Id.(citation omitted).
Contrary to petitioner’s argument, we find that the DHHR presented sufficient evidence
upon which to adjudicate petitioner as an abusing parent. While petitioner claims the testimony
simply demonstrated that the home contained a little clutter and trash, the CPS worker testified to
a significant amount of clutter and trash, roach infestation, and a strong odor of cat urine.
Importantly, petitioner had already been adjudicated as an abusing parent on prior occasions based
upon poor home conditions. Although petitioner correctly points out that he successfully
completed an improvement period on two prior occasions, his parental rights to older children
were terminated two other times for circumstances similar to the instant case. Moreover, while the
most recent proceeding prior to the instant case resulted in the return of the children to petitioner’s
care, he clearly reverted to his prior abusive and/or neglectful behavior, resulting in the instant
petition. The DHHR admitted pictures of the home’s conditions, as well as orders from petitioner’s
prior proceedings to support its allegations and to demonstrate that petitioner had not, as he argues
on appeal, made any meaningful or lasting changes to his behavior. Lastly, the DHHR presented
sufficient evidence that the children lived in the home at the time of the petition’s filing. Although
neither child was present in the home at the CPS worker’s unannounced visit, the mother informed
the worker that both children lived in the home but that K.C. was visiting her grandparents in Ohio
and J.C.-1 was temporarily out of the home with petitioner for the day. This statement is consistent
with K.C.’s CAC interview, wherein she indicated that she and J.C.-1 lived in the home with
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petitioner and their mother. Based on the foregoing, we find that the circuit court did not err in
adjudicating petitioner as an abusing parent when sufficient evidence existed to support such a
determination.
Petitioner next argues that the circuit court erred in denying him an improvement period
when he demonstrated that he would comply with and successfully complete the same. Petitioner
points out that he had previously successfully completed improvement periods during prior
proceedings. He further notes that he testified that he would comply with the terms and conditions
of an improvement period, that he had taken steps to remedy the conditions of the home, that he
had completed his parental fitness examination, and that he was financially able to support the
children. As such, petitioner argues that he was entitled to an improvement period prior to the
termination of his parental rights.
The decision to grant or deny an improvement period rests in the sound discretion 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 deciding 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 and convincing evidence that the respondent 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). The circuit court has discretion to deny an improvement period when no
improvement is likely. See In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002).
Further, we have previously held that
[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).
In support of his argument, petitioner cites to In re S.J., A.J.-1, and A.J.-2, No. 18-0243,
2018 WL 6119793 (W. Va. Nov. 21, 2018)(memorandum decision); however, this case does not
support petitioner’s claim that the circuit court erred in failing to grant him a post-adjudicatory
improvement period. In In re S.J., a circuit court found that a mother failed to accept responsibility
for abusing and neglecting her children and denied her motion for an improvement period. Id. at
*2. However, the record in those proceedings did not support the circuit court’s findings. In In re
S.J., the DHHR worker who testified during the proceedings admitted she was unprepared to
testify, did not prepare the mother’s case plans, and had not even read the circuit court’s
adjudicatory order. Id. at *2. There are no such extenuating factors in these proceedings. In In re
S.J., this Court also found that the record demonstrated that the mother accepted full responsibility
for her abuse and neglect. Id. at *4. Here, the record clearly demonstrates that petitioner refuses to
accept full responsibility for his abuse and neglect of the children by repeatedly denying the
allegations in the petition, despite the circuit court’s findings in support of the same. Therefore,
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the facts underlying the In re S.J. decision are wholly distinguishable from the facts in the case at
bar.
Contrary to petitioner’s argument, we see no error in the circuit court’s determination that
petitioner was not likely to fully participate in an improvement period. As noted above, the circuit
court found that petitioner failed to accept responsibility for his actions and denied that he had any
parenting deficits upon which to improve. Specifically, petitioner denied abusing and neglecting
the children, minimized the bases for the prior petitions filed against him, and claimed during his
parental fitness evaluation that he needed no further parenting classes as he had already taken them
during prior proceedings. While petitioner argues that he complied with services during prior
proceedings, the record establishes that this is petitioner’s sixth CPS case and that he was provided
improvement periods with extensive services on many prior occasions yet regressed to his abusive
behavior after the conclusion of each proceeding. Moreover, petitioner was given the opportunity
to demonstrate his likelihood to comply with services through drug screens but failed to submit to
any screens for thirteen months during the proceedings. Therefore, we find that the circuit court
did not abuse its discretion in denying petitioner an improvement period.
We likewise find no error in the termination of petitioner’s parental rights. West Virginia
Code § 49-4-604(c)(6) provides that circuit courts are to terminate parental rights upon finding
that there is “no reasonable likelihood that the conditions of neglect or abuse can be substantially
corrected in the near future” and that termination is necessary for the children’s welfare. West
Virginia Code § 49-4-604(d) provides that a circuit court may find that there is no reasonable
likelihood that the conditions of abuse and neglect can be substantially corrected when the abusing
parent has “demonstrated an inadequate capacity to solve the problems of abuse or neglect on [his
or her] own or with help.”
The record establishes that petitioner demonstrated an inadequate capacity to solve the
problems of abuse or neglect on his own or with help. As noted above, petitioner was provided an
improvement period in many of his prior cases, with services such as parenting and adult life skills
classes, but reverted to his abusive behavior at the conclusion of each of the proceedings, resulting
in the instant case—petitioner’s sixth abuse and neglect proceeding. During the proceedings
below, petitioner denied the allegations of abuse, claimed he did not know what parenting deficits
he could improve upon, and refused to submit to drug screens. The circuit court found that, given
petitioner’s numerous prior proceedings, coupled with his failure to accept responsibility for his
actions and his failure to submit to drug screens, there was no reasonable likelihood that petitioner
would correct the conditions of abuse and neglect in the near future and that termination was
necessary for the children’s welfare. We agree, and these findings are sufficient to support the
termination of petitioner’s parental rights. We have 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 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).
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Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Given the evidence as set forth
above, we find that the circuit court did not err in terminating petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 3, 2021, order is hereby affirmed.
Affirmed.
ISSUED: May 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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