                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS

                                                                                     FILED
In re: K.M.-2 and K.M.-3                                                        November 22, 2017
                                                                                  EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
No. 17-0577 (Barbour County 16-JA-32 & 16-JA-33)                                      OF WEST VIRGINIA




                                 MEMORANDUM DECISION
        Petitioner Father C.M., by counsel Gregory Michael, appeals the Circuit Court of
Barbour County’s May 25, 2017, order terminating his parental rights to K.M.-2 and K.M-3.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Chaelyn
W. Casteel, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Mary S. Nelson, 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 denying his
motion for an improvement period.2

        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 June of 2016, the DHHR filed an abuse and neglect petition against petitioner and his
wife, K.M.-3’s biological mother, alleging that the parties cared for the children, K.M.-1, K.M.­
2, and K.M.-3, while under the influence of illegal drugs, including methamphetamine.3 The
petition also alleged that petitioner abused substances, that the parties engaged in domestic
violence in the children’s presence, and that petitioner was the perpetrator of “extreme domestic
violence” against the mother. On June 8, 2016, the circuit court held a preliminary hearing


       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 the children share the same initials, we
will refer to them as K.M.-1, K.M.-2, and K.M.-3 throughout this memorandum decision.
       2
        Petitioner did not assert any assignment of error regarding termination. As such, we will
not address the circuit court’s termination of petitioner’s parental rights in this memorandum
decision.
       3
           K.M.-1 is not petitioner’s biological child and, therefore, not the subject of his appeal.
                                                    1

wherein petitioner admitted to a history of substance abuse and domestic violence. The circuit
court ordered that petitioner submit to random drug screening.

        In August of 2016, the circuit court held an adjudicatory hearing wherein petitioner again
stipulated to his history of substance abuse and to an abusive relationship with the mother.
Petitioner initially denied being convicted of domestic battery, but ultimately admitted that the
mother obtained a domestic violence protective order against him and to a domestic violence
domestic battery conviction. He also admitted that he abused methamphetamines, but stated that
he “lied when he told the [DHHR] that he made methamphetamines behind the house.” Based on
his admission, the circuit court adjudicated petitioner as an abusive parent. The circuit court also
found that “violence seems to be a way of life in this case . . .,” and that petitioner “had not been
forthcoming or truthful.” Petitioner filed a motion for a post-adjudicatory improvement period on
August 8, 2016, which the circuit court took under advisement. In October of 2016, the children
were interviewed at the Child Advocacy Center and they disclosed that domestic violence and
drug abuse frequently occurred in the home. The children’s disclosures included specific
instances that petitioner and the mother had denied, including an incident in which petitioner
punched the mother in the face.

         In January of 2017, the circuit court held a dispositional hearing and addressed
petitioner’s motion for a post-adjudicatory improvement period. On the same day, petitioner also
filed a motion for a dispositional improvement period. At the hearing, a DHHR caseworker
testified that petitioner demonstrates explosive behavior and intimidates people, including the
caseworker. She stated that at a multidisciplinary team (“MDT”) meeting in December of 2016,
petitioner left the meeting in anger and slammed the door on his way out. The MDT determined
that it would be best if petitioner did not return to the meeting due to his explosive outburst. The
caseworker also testified that petitioner “[banged] on the door of the lobby of the office . . .
trying to pull the door open to return to the meeting.”

        Also, at the hearing, petitioner admitted to drug abuse and domestic violence, but
minimized the extent of domestic violence in the home and stated that he only “hit [the mother]
once or twice.” He also denied that domestic violence occurred in front of the children, despite
their previous disclosures to the contrary. He also admitted that he called K.M.-2 “a liar” for
disclosing the domestic violence in the home. Petitioner further admitted that his anger was “not
totally under control” and that MDT meetings were a “waste of time.” Petitioner also stated that
he missed several random drug screens because he had problems with his cellular telephone
service and transportation. Based on the evidence presented, the circuit court found that
petitioner had not provided truthful testimony and had blamed the children for his abuse. The
circuit court also found that petitioner’s dishonesty made it impossible for the DHHR to provide
him with services. The circuit court denied petitioner’s motions for an improvement period and
found that he failed to prove by clear and convincing evidence that he would likely fully
participate in the same. The circuit court further found that there was no reasonable likelihood
that petitioner could substantially correct the conditions of abuse and neglect in the near future,
given that he had not been “open and honest” and was not credible. By order entered on May 25,




                                                 2

2017, the circuit court denied petitioner’s motions for an improvement period and terminated his
parental rights to the children.4

       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 our review, the Court finds
no error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred in denying his motions for an
improvement period. In support of his argument, petitioner asserts that his stipulations to drug
abuse and domestic violence “should be [a] sufficient reason to grant [him] an improvement
period.” We disagree. In order to obtain an improvement period, West Virginia Code § 49-4­
610(2)(B) requires that the parent “demonstrates, by clear and convincing evidence, that [the
parent] is likely to fully participate in an improvement period . . . .” Further, we have often noted
that 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) (holding that
“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)
(holding that “[i]t is within the court’s discretion to grant an improvement period within the
applicable statutory requirements”).

        Here, petitioner failed to prove by clear and convincing evidence that he was likely to
substantially comply with the terms and conditions of an improvement period. At the
dispositional hearing, petitioner minimized the extent of domestic violence in the home and
asserted that the children lied about the domestic violence they witnessed. Petitioner failed to
acknowledge his responsibility for the abuse for which he was later adjudicated. “Failure to

       4
         Petitioner’s parental rights to K.M.-2 and K.M.-3 were terminated below. According to
the guardian, K.M.-2 remains in the care of her non-offending, the parental rights of the
biological mother, A.F., and the permanency plan is to remain in that home. Also according to
the guardian, the biological mother of K.M.-3 were also terminated below. K.M.-3 was placed in
a foster home and the permanency plan is adoption into that home.
                                                 3

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.” W. Va. Dep’t of Health and Human Res. ex rel. Wright v. Doris S., 197 W.Va. 489,
498 475 S.E.2d 865, 874 (1996). Further, the circuit court found that petitioner was not truthful
with the court and his dishonesty made it impossible for the DHHR to provide him with services.
Accordingly, because the evidence clearly indicated that petitioner would not be likely to comply
with the terms and conditions of an improvement period, the circuit court did not err in denying
his requests for an improvement period.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 25, 2017, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: November 22, 2017


CONCURRED IN BY:

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




                                                4

