                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS
                                                                                FILED
In re J.S.-1                                                               November 21, 2018
                                                                             EDYTHE NASH GAISER, CLERK
No. 18-0706 (Kanawha County 2018-JA-112)                                     SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Father J.S.-2, by counsel Benjamin Freeman, appeals the Circuit Court of
Kanawha County’s June 28, 2018, order terminating his parental rights to J.S.-1.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Matthew
Smith, 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 adjudicating him as an abusing parent and
terminating his parental rights without granting him an improvement period or considering other
less-restrictive alternatives.

        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 March of 2018, the DHHR filed a child abuse and neglect petition against petitioner
and the mother. According to the DHHR, law enforcement officers responded to petitioner’s
home where two children, J.S.-1 and his friend, were under the care of a babysitter. The children
had gone to a neighbor’s home and reported that their babysitter was passed out next to a spoon
and a needle. The responding police officer was granted access to petitioner’s home by
petitioner’s cousin, who had been released on parole and resided in the home. The officer awoke
the babysitter, who appeared under the influence of drugs, and was completely unaware of the
location of the children. The DHHR further alleged that petitioner was on probation for
possession of heroin and had an extensive criminal history. Drug traffic in the home was also


       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.S.-1 and J.S.-2, respectively, throughout this
memorandum decision.


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generally alleged and K.D. reported witnessing the mother abuse drugs in the home.2 In sum, the
DHHR alleged that petitioner failed to provide J.S.-1 with the necessary food, clothing,
supervision, housing, and financial support and was not sufficiently motivated or organized to
care for the child on an ongoing basis.

        Later in March of 2018, the circuit court held a preliminary hearing. The officer who
responded to petitioner’s home regarding the incident set forth in the petition offered testimony
consistent with the allegations contained in the petition. The officer added that petitioner’s
cousin, a recent parolee, was residing in the home and was in the possession of marijuana, which
the cousin provided to the officer. Petitioner testified that he was working the night of the
incident and was unsure of who permitted the babysitter to watch the child. Petitioner reported
that his cousin normally watched the child. Petitioner acknowledged that his cousin had a
criminal history, but was unsure of the crime of which the cousin was convicted. Ultimately, the
circuit court found probable cause that, at the time of the removal and the filing of the petition,
imminent danger existed to the wellbeing of J.S.-1. The circuit court ordered petitioner to submit
to random drug screening and participate in parenting and adult life skills classes.

        The circuit court held an adjudicatory hearing in April of 2018 wherein it took notice of
the testimony presented at the preliminary hearing. The DHHR proffered that petitioner left the
child in the care of inappropriate persons under the influence of drugs. Further, petitioner failed
to submit to drug screens since the preliminary hearing. The circuit court adjudicated petitioner
as an abusing parent and ordered him to submit to a drug screen following the hearing.

        In June of 2018, the circuit court held a dispositional hearing. Petitioner failed to attend
the hearing but was represented by counsel. At the hearing, the circuit court noted that
petitioner’s drug screen following the adjudicatory hearing showed that he was positive for
amphetamine, methamphetamine, fentanyl, and norfentanyl. A Child Protective Services
(“CPS”) worker testified that petitioner submitted to only one drug screen and attended just one
or two parenting and adult life skills classes. After this limited participation, petitioner failed to
contact the worker or further participate in any services. Following the presentation of evidence,
the circuit court found that there was no reasonable likelihood that petitioner could correct the
conditions of abuse as he made no efforts to rectify the circumstances leading to the filing of the
petition. The circuit court further found that termination of petitioner’s parental rights was in the
child’s best interests. It is from the June 28, 2018, dispositional order that petitioner appeals.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

        2
         K.D. is not petitioner’s biological child but is the mother’s child from a previous
relationship. K.D. is in the care of her non-abusing father and is not the subject of this appeal.
 
        3
       Both parents’ parental rights were terminated below. J.S.-1 was placed in a relative’s
home with a permanency plan of adoption therein.
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       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 adjudicating him as an abusing
parent. Specifically, petitioner states that the allegations in the petition were either not specific or
did not apply to him. Rather, he asserts they were “inferences, innuendo, and suppositions”
which were insufficient to support a finding of abuse and neglect. We disagree.

       First, we find no error in the sufficiency of the allegations set forth in the petition.
Pursuant to West Virginia Code § 49-4-601(b),

       [t]he petition shall be verified by the oath of some credible person having
       knowledge of the facts. The petition shall allege specific conduct including time
       and place, how the conduct comes within the statutory definition of neglect or
       abuse with references thereto, any supportive services provided by the department
       to remedy the alleged circumstances and the relief sought.

Moreover,

       [i]n a juvenile neglect petition brought pursuant to Chapter 49 . . . of the Code of
       West Virginia . . . the allegations of fact are adequate if they are sufficiently
       specific to inform the custodian of the infants of the basis upon which the petition
       is brought, and thus afford a reasonable opportunity to prepare a rebuttal.

Syl. Pt. 2, in part, State ex rel. Moore v. Munchmeyer, 156 W.Va. 820, 197 S.E.2d 648 (1973).
Here, the petition indicated that petitioner was the biological father of the child; he resided with
the mother; he and the mother had been previously convicted on drug-related charges; and the
child was left in the care of an adult babysitter who was passed out under the influence of drugs,
forcing the child to leave the home and seek help. While petitioner is correct that the petition did
not specifically state that he left the child in the babysitter’s care, the fact remains that petitioner
was the child’s father and was responsible for ensuring proper care and supervision for the child.
As such, we find that the petition was sufficiently written to provide petitioner notice of the
allegations against him.

        Second, we find no error in the circuit court’s adjudication of petitioner as an abusing
parent. We have previously noted as follows:


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       At the conclusion of the adjudicatory hearing, the 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. . . . The
       findings must be based upon conditions existing at the time of the filing of the
       petition and proven by clear and convincing evidence.

In re F.S., 233 W.Va. 538, 544, 759 S.E.2d 769, 775 (2014). 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.” Id. at 546,
759 S.E.2d at 777 (citing Brown v. Gobble, 196 W.Va. 559, 564, 474 S.E.2d 489, 494 (1996)).
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. at 546, 759 S.E.2d at 777 (quoting Cramer v. W.Va. Dep’t of Highways,
180 W.Va. 97, 99 n.1, 375 S.E.2d 568, 570 n.1 (1988)).

        Pursuant to West Virginia Code § 49-1-201, an “‘[a]busing parent’ means a parent . . .
whose conduct has been adjudicated by the court to constitute child abuse or neglect as alleged in
the petition charging child abuse or neglect.” Further, a

       “‘[n]eglected child’ means a child: (A) [w]hose physical or mental health is
       harmed or threatened by a present refusal, failure or inability of the child’s parent,
       guardian, or custodian to supply the child with necessary food, clothing, shelter,
       supervision, medical care, or education, when that refusal, failure, or inability is
       not due primarily to a lack of financial means on the part of the parent, guardian,
       or custodian[.]”

Id. Here, the record establishes that petitioner knew, or should have known, of the ongoing
substance abuse in his home. Petitioner and the mother were previously convicted of drug-related
charges and K.D. reported witnessing her mother abuse drugs frequently in the home. Further,
petitioner’s cousin lived in the home and possessed marijuana in the presence of the child, and
the child’s babysitter, who was found under the influence of drugs, was the cousin’s fiancée and
was frequently present in the home. Accordingly, with express knowledge of drug use by those
frequently in the home, petitioner left J.S.-1 in their care. As such, we find that sufficient
evidence existed to adjudicate petitioner as an abusing parent due to his failure to provide
adequate supervision by leaving the child in the care of inappropriate persons under the influence
of drugs.

         Petitioner next argues that the circuit court erred in terminating his parental rights without
granting him an improvement period or employing a less-restrictive alternative. We find no merit
in petitioner’s argument. We have held 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) (“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 further held that a parent’s “entitlement to an
improvement period is conditioned upon the ability of the [parent] to demonstrate ‘by clear and

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convincing evidence, that the [parent] 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).

        Here, although petitioner was not granted a formal improvement period, the circuit court
ordered services such as random drug screens, parenting and adult life skills classes, and
supervised visitation. However, petitioner submitted to only one drug screen and participated in
no more than two parenting and adult life skills classes. Thereafter, he failed to contact the CPS
worker or further participate in the proceedings. Due to petitioner’s failure to submit to drug
screens, he was unable to participate in supervised visitation with the child. “We have previously
pointed out that the level of interest demonstrated by a parent in visiting his or her children while
they are out of the parent’s custody is a significant factor in determining the parent’s potential to
improve sufficiently and achieve minimum standards to parent the child.” In re Katie S., 198
W.Va. 79, 90 n.14, 479 S.E.2d 589, 600 n.14 (1996) (citing Tiffany Marie S., 196 W.Va. at 228
and 237, 470 S.E.2d at 182 and 191 (1996); State ex rel. Amy M. v. Kaufman, 196 W.Va. 251,
259, 470 S.E.2d 205, 213 (1996)). Based on the evidence presented above, we find that petitioner
failed to demonstrate that he was entitled to an improvement period.

        We further find no error in the circuit court’s decision to terminate petitioner’s parental
rights. Pursuant to West Virginia Code § 49-4-604(b)(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 in the near future and when necessary for the children’s
welfare. West Virginia Code § 49-4-604(c)(3) clearly indicates that a situation in which there is
no reasonable likelihood the conditions of abuse and neglect can be substantially corrected
includes one in which

       [t]he abusing parent . . . [has] not responded to or followed through with a
       reasonable family case plan or other rehabilitative efforts of social, medical,
       mental health or other rehabilitative agencies designed to reduce or prevent the
       abuse or neglect of the child, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child. .
       ..

        The record demonstrates that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future. Petitioner failed to
participate in any of the services offered to him. Petitioner tested positive for amphetamine,
methamphetamine, fentanyl, and norfentanyl following the adjudicatory hearing, submitted to
only one drug screen thereafter, and failed to participate in parenting and adult life skills classes
or supervised visitation. Petitioner did not attend the dispositional hearing or offer any evidence
to show that he corrected the issues the led to the filing of the petition. Accordingly, we find that
petitioner failed to respond to services which were designed to correct the conditions of abuse.
To the extent that petitioner argues the circuit court should have employed a less-restrictive
alternative, we note that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W.Va. Code [§]
       49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the

                                                 5
       use of intervening less restrictive alternatives when it is found that there is no
       reasonable likelihood under W.Va. Code [§] 49-6-5(b) [now West Virginia Code
       § 49-4-604(c)] . . . 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). Because petitioner failed to
participate in services or meaningfully address the issues giving rise to the petition, we find that
there was no reasonable likelihood that he could correct the condition of abuse and neglect in the
near future and that termination was necessary for the child’s welfare.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 28, 2018, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: November 21, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment




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