                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS
                                                                                     FILED
In Re: J.M. III, G.M., T.M.-1, & T.M.-2                                            November 26, 2013
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
No. 13-0669 (Mercer County 12-JA-184 through 12-JA-187)                           OF WEST VIRGINIA




                                  MEMORANDUM DECISION

        Petitioner Father, by counsel David B. Kelley, appeals the Circuit Court of Mercer
County’s June 6, 2013 order terminating his parental, custodial, and guardianship rights to J.M.
III, G.M., T.M.-1, and T.M.-2.1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Angela Alexander Walters, filed its response in support of the circuit
court’s order. The guardian ad litem, Michael P. Cooke, 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 his parental, custodial and guardianship rights without first granting a dispositional
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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner in this matter has a long history of alcohol and substance abuse requiring
DHHR involvement. In 2007, the DHHR filed an abuse and neglect petition as a result of
petitioner’s alcohol abuse, however he was eventually reunited with the children and the case was
dismissed. The DHHR continued to provide petitioner services through 2009, at which time a
second abuse and neglect petition was filed as a result of his continued alcohol abuse. Petitioner
again achieved reunification with the children and the case was dismissed.

        Thereafter, the DHHR filed a third abuse and neglect petition after an emergency removal
on October 25, 2012, due to petitioner’s substance abuse. One of the children, T.M.-2, was
admitted to the hospital because he accidentally ingested benzodiazepines. This resulted in
injuries to the child from being under the influence, including multiple bruises to the head and an
injury to his lip. In November of 2012, the circuit court held an adjudicatory hearing and found
that petitioner neglected the children. At that time, the circuit court took the issue of petitioner’s
abandonment as to two of his children, G.M. and T.M.-1, under advisement. It was alleged that

       1
        Because two children share the same initials, they will be referred to as T.M.-1 and T.M.­
2 throughout this memorandum decision.
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petitioner left the children with a relative for over one and a half years because he did not believe
they were his biological children. In May of 2013, the circuit court held a dispositional hearing,
found that petitioner abandoned two of the children, denied petitioner’s motion for an
improvement period, and terminated his parental, custodial, and guardianship rights to all four
children. It is from the resultant order that petitioner appeals.

       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 circuit court’s denial of petitioner’s
motion for a dispositional improvement period or in the termination of petitioners’ parental rights.
To begin, West Virginia Code § 49-6-12(c)(2) grants circuit courts discretion in granting
dispositional improvement periods upon a showing that the parent will fully participate in the
same. The record in this matter supports the circuit court’s denial because of petitioner’s failure to
show, by clear and convincing evidence, that he would fully comply with the terms of an
improvement period.

         In the order being appealed, the circuit court noted that petitioner has a lengthy history of
involvement in abuse and neglect proceedings regarding these children. Specifically, the circuit
court found that the DHHR’s prior efforts to remedy the conditions of abuse and neglect were
unsuccessful, despite the fact that the two prior abuse and neglect proceedings resulted in
reunification and dismissal. In fact, the circuit court noted that it was less than a month after the
conclusion of petitioner’s 2009 abuse and neglect case that he abandoned two of the children by
leaving them with a relative and failing to provide for them in any way. Additionally, the circuit
court addressed petitioner’s ongoing substance abuse issues by noting that since 2007, petitioner
had deteriorated “from an alcohol problem to a full-blown drug addiction . . . .” For these reasons,
it is clear that petitioner failed to establish, by clear and convincing evidence, that he would fully
participate in an improvement period, and it was not error for the circuit court to proceed to
termination of his parental rights without granting the same.


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         As to termination of petitioner’s parental, custodial, and guardianship rights, the Court
finds no error in this regard because the circuit court found that there was no reasonable
likelihood that petitioner could substantially correct the conditions of abuse or neglect in the near
future. As set forth in West Virginia Code §49-6-5(b)(1), such conditions exist in situations where
an abusing parent has habitually abused controlled substances or drugs to the point that parenting
abilities are impaired. The circuit court heard testimony that petitioner not only continued abusing
alcohol since the dismissal of the two prior abuse and neglect proceedings, but additionally began
abusing prescription medication. In fact, petitioner’s substance abuse resulted in one of the
children accidentally ingesting prescription medication and injuring himself. As such, it is clear
the circuit court was presented with sufficient evidence upon which to find there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse or neglect
in the near future, and that termination of his parental rights was necessary for the children’s
welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are instructed to terminate
parental rights upon these findings.

       For the foregoing reasons, we find no error in the decision of the circuit court and its June
6, 2013 order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: November 26, 2013

CONCURRED IN BY:

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




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