                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                    FILED
In Re: N.H.
                                                                                 June 16, 2014
                                                                              RORY L. PERRY II, CLERK
No. 14-0256 (Hancock County 13-JA-13)                                       SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner M.P, the child’s custodian, by counsel James T. Carey, appeals the Circuit
Court of Hancock County’s February 14, 2014, order terminating his custodial rights to the child,
N.H. The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Lee A. Niezgoda, filed its response in support of the circuit court’s order. The guardian ad litem,
Cathryn A. Nogay, filed a response on behalf of the child supporting the circuit court’s order. On
appeal, petitioner alleges that the circuit court erred in finding that he had to meet all applicable
factors in order to be the child’s psychological parent, that he was not the psychological parent,
and in failing to consider his motion for a post-adjudicatory 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

         Petitioner and the child’s mother have a history of DHHR involvement in regard to abuse
and neglect of N.H. In August of 2012, the DHHR filed an abuse and neglect petition against the
mother and her boyfriend, the petitioner herein. Petitioner was the child’s caretaker, as the
mother routinely left the child in petitioner’s care. The petition alleged that petitioner regularly
abused alcohol and marijuana and that the abuse impaired his ability to properly care for and
supervise the child. While the child was in foster care, it was determined that the parties had also
neglected his medical needs, as he required surgery to correct both his undescended testicles and
several badly decayed teeth. Both petitioner and the mother were granted pre-adjudicatory
improvement periods. In the course of that abuse and neglect proceeding, petitioner ceased
abusing alcohol and controlled substances, and both parties participated in parenting and life
skills training.

        After successfully completing their improvement periods, the circuit court returned the
child to petitioner and the mother in November of 2012, on the conditions that petitioner stop
abusing alcohol and controlled substances, and that both parties continue with life skills and
parenting services, see to the child’s follow-up care for the medical issues discovered while in
foster care, and enroll the child in preschool.



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        Thereafter, in April of 2013, the DHHR filed an abuse and neglect petition in the matter
currently on appeal after receiving a referral that drug use was occurring in the home. The
DHHR alleged that petitioner failed to supply the child with appropriate food, care, protection,
supervision, and shelter due to his ongoing abuse of drugs and alcohol, as his exposure of the
child to other drug users. The DHHR further alleged that the parties failed to comply with the
case plan from the prior abuse and neglect proceeding, including their failure to follow-up with
treatment for the child’s medical issues. The circuit court held an adjudicatory hearing in May of
2013, during which it heard testimony from several law enforcement officers about the drug
activity occurring in petitioner’s home. Accordingly, the circuit court found petitioner to be an
abusing custodian.

        In November and December of 2013, the circuit court held a series of dispositional
hearings, during which the mother decided to voluntarily relinquish her parental rights to the
child. After accepting the mother’s voluntary relinquishment, the circuit court turned to the issue
of whether petitioner, as the child’s custodian, was entitled to a dispositional hearing. The circuit
court decided that petitioner could participate in the dispositional hearing, and ultimately
terminated his custodial rights to the child.1 It is from the dispositional 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 findings as to petitioner’s status as a custodian or in its decision to
terminate petitioner’s custodial rights without offering petitioner an improvement period.




       1
         No party to this appeal has challenged the circuit court’s decision to allow petitioner’s
participation in the dispositional hearing as only a custodian or potential psychological parent.
Because that issue is not raised on appeal, and because resolution of that issue is not necessary
for affirmation of the circuit court’s ultimate decision, the Court does not address that issue in
this memorandum decision.
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        On appeal, petitioner argues that he was unfairly prejudiced because the circuit court
revisited the issue of whether or not he qualified as the child’s psychological parent at the
dispositional hearing after already finding that he was the child’s psychological parent at the
adjudicatory hearing. Further, he alleges that the circuit court clearly erred in reversing that
finding at the dispositional hearing. Upon our review, the Court finds no error in regard to either
of these allegations because the distinction between petitioner’s status as a custodian or a
psychological parent is ultimately irrelevant in light of the circuit court’s decision to grant
petitioner a full dispositional hearing. In the dispositional order, the circuit court specifically
stated that it was “allow[ing] [petitioner] to participate in the [dispositional] proceedings and
present his position.” As such, it is clear that regardless of petitioner’s relation to the child, he
was afforded both notice of, and an opportunity to be heard at, the dispositional hearing as
required by Rule 31 of the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings and West Virginia Code § 49-6-5(a).

        Furthermore, the Court finds no error in the circuit court’s decision to deny petitioner an
improvement period. Petitioner alleges that the circuit court did “not even consider [his] written
motion for an improvement” period, but this argument ignores the broad discretion circuit courts
have in granting improvement periods and the fact that petitioner could not satisfy the burden
necessary to be considered for the same. West Virginia Code § 49-6-12(b)(2) grants circuit
courts discretion in granting post-adjudicatory improvement periods upon the parent showing, by
clear and convincing evidence, that they are “likely to fully participate in the improvement
period.” The evidence below overwhelmingly shows that petitioner could not satisfy this burden.

        In its dispositional order, the circuit court specifically noted petitioner’s testimony in
which he stated that “there was nothing he would change about his parenting of [N.H.] if [the
child] were returned to his care.” Further, petitioner testified that he continued to abuse
marijuana as recently as two weeks prior to the dispositional hearing, and also continued to
consume alcohol. As such, the circuit court found that petitioner had failed to respond to or
follow through with rehabilitative efforts designed to prevent the child’s neglect, which
constitutes a situation in which there is no reasonable likelihood the conditions of abuse or
neglect can be substantially corrected pursuant to West Virginia Code § 49-6-5(b)(3).

       We have previously held as follows:

       [I]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. Failure to 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.

In re Timber M., 231 W.Va. 44, --, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Based upon this holding and the evidence outlined
above, it is clear that petitioner was not entitled to an improvement period. Not only could he not
satisfy the burden necessary to obtain an improvement period as set forth in West Virginia Code
§ 49-6-12, but he failed to acknowledge the underlying conditions of abuse and neglect present

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in the home. As such, an improvement period would have constituted “an exercise in futility at
the child’s expense,” and the circuit court did not err in proceeding to termination of petitioner’s
custodial rights without first granting an improvement period.

       For the foregoing reasons, we find no error in the decision of the circuit court and its
February 14, 2014, order is hereby affirmed.


                                                                                         Affirmed.


ISSUED: June 16, 2014

CONCURRED IN BY:

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




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