In re T.C.

FILED
August 31, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re T.C.
No. 22-0172 (Braxton County 20-JA-50)
MEMORANDUM DECISION
Petitioner Father B.H., by counsel Andrew Chattin, appeals the Circuit Court of Braxton
County’s February 2, 2022, order terminating his parental rights to T.C. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and Katica
Ribel, filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”),
Mary Elizabeth Snead, filed a response on behalf of the child also in support of the circuit court’s
order. On appeal, petitioner argues that the circuit court erred in terminating his 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 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 February of 2021, the DHHR filed a child abuse and neglect petition against petitioner
and the mother. The DHHR alleged that it received a referral regarding the mother’s alleged
substance abuse and, while investigating the matter, learned that petitioner had abandoned the
child. The DHHR alleged that petitioner and the mother had been in a romantic relationship until
the mother was approximately five months pregnant with the child, at which time the mother
separated from petitioner due to his violent nature. The DHHR noted that the mother signed up for
benefits through the DHHR when the child was one years old, triggering paternity proceedings
with the Bureau for Child Support Enforcement. According to the DHHR, petitioner was served
with a copy of the paternity suit, and signed for the same, but refused to participate in the
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).
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proceedings. Specifically, petitioner failed to attend four separate paternity testing appointments.
The DHHR alleged that petitioner knew or should have known that he was the father of the child,
who was eleven years old at the time of the petition’s filing, and that he had abandoned the child
and failed to provide the child with any monetary or emotional support.
According to the guardian, petitioner initially could not be located and was served by
publication. At an adjudicatory hearing in March of 2021, the circuit court adjudicated petitioner
as an abusing parent. However, after the adjudicatory hearing, petitioner was determined to be
incarcerated and, as such, his adjudication was reopened. The adjudicatory hearing was held on
July 7, 2021, and petitioner appeared via videoconference from his place of incarceration. The
DHHR presented the testimony of the mother, who stated that she and petitioner cohabitated
around the time of the child’s conception and that after their relationship dissolved, petitioner
failed to contact or provide any support to the child. The DHHR also submitted paternity test
results establishing that petitioner was the child’s biological father.
Petitioner testified and admitted that he was the child’s father, that he had known the
mother was pregnant, and that they had discussed the possibility that he was the child’s father.
Following this testimony, the circuit court found that petitioner was the biological father of the
child, that he was in a relationship with the mother at the time of conception, that he knew that he
could be the father, that he was a party to a paternity action, and that he failed to provide any
support for the child. The court further found that petitioner had not had contact with the child
since she was an infant. Accordingly, the circuit court found that petitioner abandoned the child
and adjudicated him as a neglectful parent.
The circuit court held a dispositional hearing in October of 2021. A Child Protective
Services (“CPS”) worker testified and recommended that petitioner’s parental rights be terminated.
The worker testified that petitioner had not had contact with the child since her birth and that he
had provided no care or support for the child. Petitioner also failed to take any action through the
court system in order to have a relationship with the child. The worker indicated that the child
“doesn’t even know her father” and has no desire to have a relationship with him.
Petitioner requested an improvement period and testified that he would comply with
services if granted one. Petitioner admitted that he had two other children, one of whom he “[did
not] have any rights to.” Petitioner explained that he had previously been the subject of abuse and
neglect proceedings with regard to an older daughter and that he had been accused of sexual abuse.
Petitioner stated that he voluntarily relinquished his parental rights to the child in that case, but
had been “found innocent” of the sexual abuse charges. Petitioner testified that he had been
incarcerated since March of 2020 for multiple drug-related charges, including possession with
intent to deliver heroin and manufacturing methamphetamine. Petitioner stated that he had been
sentenced to three to twenty-five years of incarceration and would become eligible for parole the
month after the dispositional hearing.
Petitioner claimed that the child’s mother kept him from seeing the child. According to
petitioner, he saw the child once when she was approximately three months old and then never
heard from the child’s mother again until March of 2020, when they had a single brief conversation
over social media. Petitioner stated that, prior to that conversation, he did not have the mother’s
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phone number and could not find her on social media and, therefore, could not reach her. Petitioner
claimed that he had not provided child support because he did not know how to find the child.
However, he also claimed that he did not know the child was his until the instant proceedings and
claimed that the mother was also in a relationship with another man around the time of the child’s
conception.
The circuit court took judicial notice of the prior proceedings and found that petitioner had
little to no contact with the child since she was three months old. The circuit court found that
petitioner knew of the child and did nothing to establish a bond or a relationship with her.
Specifically, petitioner failed to provide any support, maintenance, or gifts for the child. The circuit
court found that the child had not been in petitioner’s custody since her birth and that petitioner’s
abandonment “created substantial emotional turmoil” for the child, who had no desire to have a
relationship with petitioner. Based on the foregoing, the circuit court terminated petitioner’s
parental rights upon finding that there was no reasonable likelihood that petitioner could correct
the conditions of abuse or neglect in the near future and that there was no less restrictive alternative
to the termination of his parental rights which would protect the health, safety, and welfare of the
child. 2 Petitioner appeals the February 2, 2022, dispositional order. 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).
On appeal, petitioner argues that the circuit court erred in terminating his parental rights
without first granting him an improvement period. Petitioner claims that the DHHR could have
provided services to petitioner while in prison and that there was a reasonable likelihood that he
could have corrected the conditions of abuse or neglect as he “could have forged a relationship
with his daughter had he been given the opportunity.” Petitioner avers that the mother’s actions
2
The circuit court did not consider evidence presented regarding prior referrals or
proceedings against petitioner as the DHHR failed to timely provide that evidence.
3
According to the parties, the mother is successfully participating in her improvement
period, and the child has begun transitioning back into the mother’s care. The permanency plan
for the child is reunification with the mother.
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denied him the opportunity to have a relationship with his child and that he demonstrated his desire
to have a relationship with her. Based on the foregoing, petitioner contends that the circuit court
erred in terminating his parental rights. We disagree.
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). However, 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).
We find that petitioner failed to demonstrate that he was likely to fully participate in an
improvement period. While petitioner testified that he would comply with an improvement period,
his continued incarceration created a barrier to his ability to meaningfully participate in an
improvement period. While petitioner claims that the DHHR could have provided him with
services in prison, he failed to present any evidence in support of this argument. Indeed, petitioner
fails to indicate what services could address his abandonment of the child. While petitioner blames
the mother and claims she prohibited him from having a relationship with the child, the circuit
court heard the testimony of the mother and petitioner regarding this issue and, ultimately, found
that petitioner “did nothing to establish a relationship or bond with [the child].” We decline to
disturb this credibility determination on appeal. Michael D.C. v. Wanda L.C., 201 W. Va. 381,
388, 497 S.E.2d 531, 538 (1997) (“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 determinations.”). Moreover, petitioner’s release on
parole was not guaranteed, and he could remain incarcerated for up to twenty-five years. We have
previously held that “[c]ourts are not required to exhaust every speculative possibility of parental
improvement . . . where it appears that the welfare of the child will be seriously threatened.” Cecil
T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4 (citation omitted). Based on the foregoing, we
find no error in the circuit court’s decision to deny petitioner’s motion for an improvement period.
We likewise find no error in the circuit court’s termination of petitioner’s parental rights.
West Virginia Code § 49-4-604(c)(6) provides that circuit courts are to terminate parental,
custodial, and guardianship 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 child’s welfare. West Virginia Code § 49-4-604(d)(4) 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 “abandoned the child.”
Here, the record establishes that petitioner demonstrated an inadequate capacity to solve
the problems of abuse or neglect on his own or with help. Due to his incarceration, petitioner was
unable to comply with services aimed at remedying the conditions of abuse and neglect. While the
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circuit court considered that petitioner would become parole eligible in November of 2021, there
was no guarantee that he would be released. Absent his release on parole, petitioner will not
discharge his sentence until after the child has reached the age of majority. Moreover, petitioner
failed to establish a bond or a relationship with the child after her birth and had seen her only once
in eleven years. The circuit court found that petitioner’s abandonment of the child caused her
significant emotional distress, and it considered the child’s desire that petitioner’s parental rights
be terminated. Based on the foregoing, we cannot find that the circuit court erred in finding that
there is no reasonable likelihood that petitioner could correct the conditions of abuse and neglect
in the near future or that termination was necessary for the child’s welfare.
While petitioner argues that the circuit court could have employed a less restrictive
alternative to the termination of his parental rights, we have previously 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).
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Given the abovementioned
evidence, we find no error in the circuit court’s decision to terminate petitioner’s parental rights to
the child.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 2, 2022, order is hereby affirmed.
Affirmed.
ISSUED: August 31, 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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