                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                  FILED
                                                                              November 8, 2019
In re B.S. and A.S.                                                             EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
No. 19-0431 (Randolph County 2018-JA-102 and 2018-JA-103)



                               MEMORANDUM DECISION



       Petitioner Father C.S., by counsel G. Phillip Davis, appeals the Circuit Court of Randolph
County’s April 16, 2019, order terminating his parental rights to B.S. and A.S.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Melissa T.
Roman, filed a response on behalf of the children in support of the circuit court’s order. Respondent
Mother S.S., by counsel Timothy H. Prentice, also filed a response in support of the circuit court’s
order. On appeal, petitioner argues that the circuit court erred in terminating his parental rights
without imposing a less-restrictive dispositional alternative.

       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 August of 2018, the DHHR and the mother jointly filed a child abuse and neglect petition
alleging that petitioner engaged in domestic violence and abused controlled substances. 2 The
DHHR alleged that criminal charges were filed against petitioner following an incident wherein
he tackled the mother, wrestled her to the ground, and struck her with an electronic tablet. The
mother was granted a domestic violence protective order as a result of this incident. Nine-year-old
B.S. reported that he witnessed petitioner “shove and hit” the mother and that it scared him. B.S.

       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).
       2
        Prior to the filing of this petition, petitioner and the mother were separated and petitioner
exercised weekend visitation with the children.
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also reported that petitioner asked him to leave the home when certain visitors arrived; B.S.
explained that he felt sad and unwanted as a result. The DHHR further alleged that the mother
personally observed drug paraphernalia in the home. The DHHR alleged that, when petitioner was
confronted with the allegations, he denied physical domestic violence against the mother, but
admitted that he unsuccessfully attempted multiple drug treatment programs for his substance
abuse.

        The circuit court held two adjudicatory hearings in October of 2018. Petitioner did not
appear for the first hearing and it was continued upon his counsel’s motion. Petitioner appeared
for the second hearing and stipulated that his substance abuse negatively affected his ability to
parent the children. The circuit court accepted petitioner’s stipulation and adjudicated him as an
abusing parent. Additionally, petitioner moved for a post-adjudicatory improvement period and
agreed to participate in previously agreed upon terms and conditions. The circuit court granted
petitioner a ninety-day post-adjudicatory improvement period.

        In December of 2018, the circuit court held a status hearing on petitioner’s improvement
period, and the DHHR presented evidence that petitioner failed to fully participate. Specifically,
the DHHR reported that petitioner participated in only four random drug screenings, tested positive
for controlled substances two out of the four times; was not attending parenting classes or visitation
with the children; and failed to participate in domestic violence classes. Based on this evidence,
the circuit court found that petitioner had not been participating in his improvement period.
However, the circuit court noted petitioner expressed a desire to attempt substance abuse
rehabilitation and continued the improvement period to permit him an opportunity for treatment.

        Later in December of 2018, the circuit court held a second status hearing. Petitioner
explained that his insurance only covered a treatment facility in California and, thus, he had not
entered into treatment. The DHHR proffered that petitioner was previously advised to obtain a
medical card to pay for local treatment. The DHHR further reported that petitioner tested positive
for controlled substances the same day as the previous review hearing and failed to participate in
random drug screening since that time. The circuit court again found that petitioner was not
participating in his improvement period, but continued the same to provide petitioner “one further
opportunity to progress.”

        The circuit court held a third review hearing in January of 2019 and the DHHR advised the
court that petitioner was not participating in his improvement period. However, petitioner
indicated that he secured placement in a detoxification treatment facility and would begin the
program the following day. The guardian and the mother moved to terminate petitioner’s
improvement period due to his noncompliance. The circuit court held the motion to terminate in
abeyance and continued petitioner’s improvement period. Later in January of 2019, the circuit
court held the final status hearing. Petitioner did not appear but was represented by counsel. The
parties represented that petitioner failed to provide any updates regarding his potential
participation in treatment and continued to fail to participate in the terms of his improvement
period. The circuit court found that petitioner’s post-adjudicatory improvement period was
unsuccessful.




                                                  2
        In March of 2019, the circuit court held the final dispositional hearing. Petitioner moved
for a post-dispositional improvement period and testified on his own behalf. Based on this
testimony, the circuit court found that petitioner completed an inpatient detoxification in late
January of 2019. However, petitioner admitted to continued methamphetamine abuse since that
time. The circuit court concluded that petitioner was unlikely to fully participate in an additional
improvement period. The DHHR, the mother, and the guardian jointly moved to terminate
petitioner’s parental rights and relied on prior evidence of petitioner’s failure to comply with
services. The circuit court considered the numerous opportunities granted to petitioner to remedy
the conditions of abuse and neglect, but noted his continued failure to participate in the services
offered. Ultimately, the circuit court found that petitioner was unwilling or unable to provide for
the children and that there was no reasonable likelihood that the conditions of abuse and neglect
could be substantially corrected in the near future. The circuit court terminated petitioner’s parental
rights in its April 16, 2019, order. Petitioner now appeals that order.3

       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, this Court finds no
error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred in terminating his parental rights
rather than imposing a less-restrictive dispositional alternative. Because he completed a
detoxification program and began group therapy meetings, petitioner argues that a post-
dispositional improvement period would have been more appropriate than termination of his
parental rights. However, petitioner fails to address the statutory requirements to be granted a post-
dispositional improvement period. West Virginia Code § 49-4-610(3)(D) provides that a parent
that has previously been granted an improvement period during the proceedings must show that
he has “experienced a substantial change in circumstances” and “due to that change in
circumstances, the [parent] is likely to fully participate in the improvement period.” Here,
petitioner does not assert a substantial change in circumstances, nor has one occurred. Following


       3
       The nonabusing mother retains her parental rights. The children have achieved
permanency in her custody.


                                                  3
petitioner’s submission to the detoxification program, he continued to abuse controlled substances
and did not attempt to resume services with the DHHR. For these reasons, the circuit court did not
err in denying petitioner’s motion for a post-dispositional improvement period.

       Further, the circuit court’s findings support the termination of petitioner’s parental rights.
West Virginia Code § 49-4-604(b)(6) provides that the circuit court may terminate a parent’s
parental rights upon findings that “there is no reasonable likelihood that the conditions of neglect
or abuse can be substantially corrected in the near future” and when termination is necessary for
the welfare of the children. West Virginia Code § 49-4-604(c)(3) further indicates that “no
reasonable likelihood that conditions of neglect or abuse can be substantially corrected” exists
when

       [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.

        Here, petitioner failed to follow through with a reasonable family case plan. Petitioner
ignored the terms and conditions of his improvement period, such as random drug screening,
parenting and domestic violence classes, and visitation with the children. More importantly,
petitioner readily admitted that he continued to abuse controlled substances as recently as two
weeks prior to the final dispositional hearing. Therefore, the conditions that threatened the children
continued unabated during the proceedings. The circuit court did not err in finding that there was
no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected
based on petitioner’s willful disregard of the efforts provided by the DHHR. Further, petitioner
was particularly aggressive towards the children’s mother and dismissive of B.S. while abusing
controlled substances. As petitioner failed to remedy either his domestic violence or substance
abuse issues, it was necessary for the children’s welfare to terminate petitioner’s parental rights.

       Finally, we have also held as follows:

               “Termination of parental rights, the most drastic remedy under the statutory
       provision covering the disposition of neglected children, [West Virginia Code § 49-
       4-604] . . . may be employed without the use of intervening less restrictive
       alternatives when it is found that there is no reasonable likelihood under [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). As the circuit court’s findings
are fully supported by the record, we find no error in the circuit court’s termination of petitioner’s
parental rights without the use of a less-restrictive dispositional alternative. Accordingly, petitioner
is entitled to no relief.




                                                   4
       For the foregoing reasons, we find no error in the decision of the circuit court, and its April
16, 2019, order is hereby affirmed.

ISSUED: November 8, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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