In Re: K.B., 17-0417

Background

DHHR filed an abuse-and-neglect petition (Oct 2016) alleging Father (B.B.) and the mother engaged in domestic violence and used drugs in child K.B.’s presence; the child reported fear and at least one incident involving a gun discharge.
A DHHR investigator and caseworker testified at adjudication about the child’s disclosures, a neighbor’s report of caretaking, petitioner’s admission to domestic violence and firing a gun, the parents’ poor contact with the caseworker, and petitioner’s noncompliance with drug screens and sporadic visitation.
Petitioner did not appear at the adjudicatory or dispositional hearings and presented no evidence; he was represented by counsel.
The circuit court adjudicated petitioner an abusing parent based on exposure to domestic violence and drug use and found he admitted the conduct in a DHHR interview.
At dispositional hearing the court found no reasonable likelihood conditions could be corrected due to petitioner’s failure to participate and terminated his parental rights (Mar 29, 2017).
The guardian reports the child is placed in foster care with a permanency plan of adoption; petitioner appeals the adjudication and termination.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether clear-and-convincing evidence supported adjudication as an abusing parent	DHHR: child disclosures, investigator testimony, petitioner’s admission establish abuse	Petitioner: insufficient clear-and-convincing evidence of abuse	Court: Adjudication affirmed — evidence (including petitioner’s admission and child’s statements) met the standard
Whether petitioner’s silence/performance at hearings may be treated as evidence	DHHR: silence and failure to dispute probative evidence may be considered culpability	Petitioner: absence and silence do not negate requirement of proof	Court: Silence can be considered affirmative evidence when parent fails to respond; petitioner offered no contrary evidence
Whether termination was proper without less-restrictive alternatives	DHHR: no reasonable likelihood conditions could be corrected due to noncompliance and lack of acknowledgement; termination necessary for child’s welfare	Petitioner: court should have imposed less-restrictive alternative	Court: Termination affirmed — statutory standard met (no reasonable likelihood of correction and termination necessary)
Whether failure to acknowledge abuse bars rehabilitation and supports termination	DHHR: failure to acknowledge makes problem untreatable and supports termination	Petitioner: (implied) contested necessity of termination absent efforts	Court: Failure to acknowledge abusive conduct justified finding that conditions were untreatable and supported termination

Key Cases Cited

In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (W.Va. 1996) (standard of review for circuit court findings in bench-tried abuse/neglect cases)
In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (W.Va. 2011) (reiterating standard of review)
Brown v. Gobble, 196 W.Va. 559, 474 S.E.2d 489 (W.Va. 1996) (defining the clear-and-convincing proof standard)
In re F.S. and Z.S., 233 W.Va. 538, 759 S.E.2d 769 (W.Va. 2014) (discussion of proof standards in parental-rights matters)
West Virginia Dept. of Health & Human Resources ex rel. Wright v. Doris, 197 W.Va. 489, 475 S.E.2d 865 (W.Va. 1996) (parental silence may be considered affirmative evidence)
In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (W.Va. 1996) (termination may be used without less-restrictive alternatives when no reasonable likelihood of correction exists)
In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (W.Va. 2013) (failure to acknowledge abuse undermines rehabilitative prospects)
In re Charity H., 215 W.Va. 208, 599 S.E.2d 631 (W.Va. 2004) (acknowledgement of the problem is prerequisite to remedying abuse/neglect)