                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS
                                                                                      FILED
In re: L.H., A.L., & T.A.                                                     February 16, 2016
                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
No. 15-0741 (Kanawha County 15-JA-25, 15-JA-26 & 15-JA-27)                         OF WEST VIRGINIA




                              MEMORANDUM DECISION

        Petitioner Mother T.S., by counsel Jason S. Lord, appeals the Circuit Court of Kanawha
County’s June 19, 2015, order terminating her parental rights to L.H., A.L., and T.A. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed
its response in support of the circuit court’s order. The guardian ad litem (“guardian”), Jennifer
R. Victor, filed a response on behalf of the children supporting the circuit court’s order. On
appeal, petitioner alleges that the circuit court erred in terminating her parental rights instead of
imposing a less restrictive dispositional alternative, in finding that she abused and neglected her
children, and in denying her post-termination visitation. 1

        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 2015, the DHHR filed an abuse and neglect petition alleging that
petitioner failed to protect her children from sexual abuse once she had knowledge of the
allegations. According to the petition, six year-old L.H. disclosed at school that S.S., petitioner’s
boyfriend, had sexually abused her. Petitioner is the mother of L.H., A.L., and T.A. Additionally,
L.H. disclosed that she was “scared to tell her mom in case her mom didn’t believe her.” L.H.
also disclosed that S.S. had left bruises on her, bloodied her nose and mouth from smacking her,
and that she had seen him “grab her mother by the shirt before when he was mad.” L.H. made the
same disclosures at her Child Advocacy Center interview. L.H. further disclosed that S.S. “made
her touch his penis.” According to the petition, when petitioner was advised of L.H.’s
disclosures, she responded that the DHHR worker “was a retard for believing a retard and that
CPS was going to be the reason that [L.H.’s] father was going to die.” Petitioner did not believe
L.H. and stood by S.S. The circuit court granted the DHHR legal and physical custody of the

       1
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.


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children pending the preliminary hearing. The circuit court appointed counsel to represent
petitioner.

       In March 2015, the circuit court held an adjudicatory hearing. Ultimately, the circuit
court found by clear and convincing evidence that petitioner both failed to protect L.H. after
learning of the sexual abuse and that L.H., A.L., and T.A. were neglected and abused children.
The circuit court also ordered the DHHR to provide petitioner with a psychological evaluation,
including an evaluation of factors related to parental fitness. Petitioner’s motion for an
improvement period was denied. The children remained in the temporary legal and physical
custody of the DHHR.

        In May of 2015, the circuit court held a dispositional hearing. At the hearing, petitioner
sought to voluntarily relinquish her parental rights. The DHHR and the guardian objected and the
circuit court denied petitioner’s request, finding that voluntary relinquishment would be contrary
to the best interests of the children. The DHHR and the guardian moved the circuit court to
terminate petitioner’s parental rights and recommended denying post-termination visitation. The
circuit court terminated petitioner’s parental rights by order entered on June 19, 2015. The circuit
court also denied petitioner post-termination visitation, finding it to be contrary to the children’s
bests interests.

       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).

        Upon review of the record, we find no error in the circuit court’s termination of
petitioner’s parental rights instead of imposing a less restrictive dispositional alternative, no error
in finding that petitioner abused and neglected her children, and no error in denying petitioner
post-termination visitation.

       An abused child is one whose “health or welfare is harmed or threatened by [a] parent,
guardian or custodian who knowingly or intentionally inflicts, attempts to inflict or knowingly



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allows another person to inflict, physical injury or mental or emotional injury, upon the child or
another child in the home.” W.Va. Code § 49-1-201(A) (2012). We have also explained that

               “W.Va. Code, 49-6-2(c) [1980], 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 proof.’ 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) (internal citations omitted).
While petitioner claims the DHHR failed to prove abuse or neglect by clear and convincing
evidence, the record demonstrates that the circuit court was presented with ample evidence of
petitioner’s abuse. The DHHR workers testified that L.H. disclosed that petitioner’s boyfriend
sexually abused her, struck her and struck petitioner, and that she did not disclose the abuse to
petitioner because she was afraid petitioner would not believe her. Indeed, petitioner did not
believe that her boyfriend abused L.H. and testified to the same at the adjudication hearing.
Petitioner also denied that her boyfriend sexually or physically abused L.H. and she denied that
L.H. told her about the abuse. Petitioner also testified that she believed that L.H. did not come up
with abuse allegations on her own. Based upon the record, the evidence of abuse and neglect is
sufficient to support the circuit court’s findings that petitioner was an abusing parent and that her
children were abused and neglected.

        Further, this Court finds that the circuit court properly terminated petitioner’s parental
rights upon a finding that she could not substantially correct the conditions of abuse and neglect
in the home. Pursuant to West Virginia Code § 49-4-604(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 corrected and when necessary for the child’s welfare. We
have held as follows:

              “[p]arental rights may be terminated where there is clear and convincing
       evidence that the infant child has suffered extensive physical abuse while in the
       custody of his or her parents, and there is no reasonable likelihood that the
       conditions of abuse can be substantially corrected because the perpetrator of the
       abuse has not been identified and the parents, even in the face of knowledge of the
       abuse, have taken no action to identify the abuser.”

Syl. Pt. 3 In re: Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993). The circuit court was
presented with evidence that petitioner failed to protect L.H. from S.S. after learning of the
sexual abuse and that petitioner maintained a relationship with S.S. and continued to deny that he
sexually abused any of the children. Further, pursuant to West Virginia Code § 49-4-604(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 corrected and when necessary
for the child’s welfare. West Virginia Code § 49-4-604(c)(3) also provides that no reasonable
likelihood that the conditions of abuse or neglect can be substantially corrected exists when
“[t]he abusing . . . parents . . . have not responded to or followed through with a reasonable

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family case plan or other rehabilitative efforts[.]” In the case at hand, petitioner did not believe
that her boyfriend abused L.H. and testified to the same at the adjudication hearing. Petitioner
also denied that her boyfriend sexually or physically abused L.H. and she denied that L.H. told
her about the abuse. Petitioner also testified that she believed that L.H. did not come up with
abuse allegations on her own. For these reasons, termination of petitioner’s parental rights was
not error.

        As to petitioner’s argument that the circuit court erred in terminating her parental rights
instead of imposing a less restrictive alternative, the Court finds no error. Petitioner contends that
the circuit court should have disposed of this matter by granting physical and legal custody with
the respective fathers of each minor child. Here, the circuit court had no option but to terminate
petitioner’s parental rights. Further, we have held as follows:

               “Termination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va. Code [§
       ] 49–6–5 . . may be employed without the use of intervening less restrictive
       alternatives when it is found that there is no reasonable likelihood under W.
       Va.Code [§ ] 49–6–5(b) . . . 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). Here, the circuit court found
that there was no reasonable likelihood that the conditions of neglect or abuse could be
substantially corrected in the near future and that the children’s welfare required termination. As
such, we find that the circuit court did not err in terminating petitioner’s parental rights.

         Finally, we find no error in the circuit court’s denial of post-termination visitation
between petitioner and the children. While petitioner argues that her bond with her children
necessitates that she be granted post-termination visitation with her three children, we disagree.
Post-termination visitation is a discretionary action and not compulsory upon the circuit court.
We have previously held that a circuit court must consider three factors when ordering post-
termination visitation: whether there is a close emotional bond between parent and child; the
child’s wishes; and whether the visitation would be detrimental to the child’s best interests. In re
Alyssa W., 217 W.Va. 707, 619 S.E.2d 220 (2005). Here, petitioner chose her relationship with
S.S. over the safety and well-being of her children. She failed to protect them from abuse. She
chose to call her daughter, L.H., a liar and a “retard” for disclosing the abuse. The circuit court
reasonably concluded that post-termination visits with petitioner would not be in the children’s
best interests. Therefore, we find no error in the circuit court’s denial of post-termination
visitation between petitioner and the children.

       For the foregoing reasons, the circuit court’s June 19, 2015, termination order is hereby
affirmed.
                                                                                      Affirmed.




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ISSUED: February 16, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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