                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

In re B.S.                                                                         FILED
                                                                               March 15, 2019
No. 18-0916 (Wood County 17-JA-185)                                           EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Father M.E., by counsel Jessica E. Myers, appeals the Circuit Court of Wood
County’s September 17, 2018, order terminating his parental rights to B.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”), Robin S.
Bonovitch, filed a response on behalf of the child in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in denying his motion for a post-adjudicatory
improvement period and terminating his parental rights instead of granting him 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 July of 2017, the DHHR filed an abuse and neglect petition against petitioner and the
mother alleging that the child tested positive for methamphetamine, amphetamines, and THC at
birth and suffered from withdrawal symptoms.2 Petitioner disclosed to the DHHR that the mother
actively used methamphetamine during her pregnancy with the child. The DHHR’s attempts to
serve petitioner with the petition failed, but petitioner later admitted that he was aware of the
proceedings. According to the DHHR, petitioner failed to attend the preliminary hearing on July
31, 2017, because he appeared late and was denied entry by an unidentified court employee.
Petitioner failed to participate in the subsequent proceedings and was incarcerated in April of
2018 upon charges of malicious wounding, receiving and transferring stolen property, and


       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
       Although it was uncertain who the father of the child was, petitioner was named as a
respondent in the initial petition and his paternity of the child was later confirmed.
                                                 1
possession of a firearm on school grounds. Also in April of 2018, the DHHR filed an amended
petition adding allegations of abandonment by the father.

        However, petitioner’s paternity of the child was confirmed and he was transported from
prison to the adjudicatory hearing on August 1, 2018. Petitioner testified that he believed that the
child was his son throughout the mother’s pregnancy and that he tried to dissuade the mother
from abusing drugs during the pregnancy. He admitted that he had not seen the child since the
child’s birth. Next, a DHHR caseworker testified that there was no record of any calls or
messages from petitioner to inquire about the child. At the conclusion of the hearing, the circuit
court adjudicated petitioner as an abusing parent based upon his abandonment of the child. The
circuit court found that petitioner knew the child was his son and knew the child was in the
DHHR’s custody, but failed to contact the DHHR or attempt to provide any support to the child.
The circuit court further found that petitioner demonstrated a settled purpose to forego his
parental responsibilities to the child and that petitioner was unable to provide care to the child
due to his current and indefinite period of incarceration.

        On September 12, 2018, the circuit court held a dispositional hearing during which
petitioner moved for a post-adjudicatory improvement period. Petitioner testified that he would
comply with any services required by an improvement period. Petitioner also testified that he
expected to be released on home incarceration following his criminal trial, if he could secure a
residence. He also testified that he would participate in inpatient substance abuse treatment once
he was released from incarceration. At the time of the dispositional hearing, the child was nearly
fourteen months old and had been in the DHHR’s custody since birth. At the conclusion of the
hearing, the circuit court denied petitioner’s motion for a post-adjudicatory improvement period
and found that petitioner showed “very little interest” in the child since his birth. 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 and that the termination of
petitioner’s parental rights was in the child’s best interest. Ultimately, the circuit court
terminated his parental rights in its September 17, 2018, dispositional order.3 It is from this 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 mother’s parental rights were also terminated. According to respondents, the
       3

permanency plan for the child is adoption in his current foster placement.
                                                 2
       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, this Court
finds no error in the proceedings below.

       First, petitioner argues that the circuit court erred in denying his motion for a post-
adjudicatory improvement period. In support, he asserts that he “had taken steps to be released
from jail, made attempts to secure treatment and was willing to participate in additional
services.” We do not find this argument persuasive.

        West Virginia Code § 49-4-610(2)(B) provides that a parent may be granted an
improvement period if the parent “demonstrates, by clear and convincing evidence, that the
[parent] is likely to fully participate in the improvement period.” Additionally, we have stated
that “West Virginia law allows the circuit court discretion in deciding whether to grant a parent
an improvement period.” In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015). Here,
other than his own self-serving testimony, petitioner failed to demonstrate by clear and
convincing evidence that he would be likely to fully participate in a post-adjudicatory
improvement period. While he asserts that he had “taken steps to be released from jail,” at the
time of the dispositional hearing, petitioner was still incarcerated and awaiting trial. Further, the
record shows that petitioner failed to participate in the majority of the proceedings and showed
“very little interest” in the child since the child’s birth. Based on this evidence, the circuit court
did not err in denying petitioner’s motion for a post-adjudicatory improvement period.

        Next, petitioner argues that the circuit court erred in terminating his parental rights
instead of granting him a less-restrictive dispositional alternative. Petitioner asserts that, pending
his release from incarceration, he would be able to participate in services and correct the
conditions of abuse and neglect.

        West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate 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 that termination is necessary for the
children’s welfare. West Virginia Code § 49-4-604(c)(4) clearly indicates that a situation where
there is no reasonable likelihood that the conditions of abuse and neglect can be substantially
corrected includes one in which the abusing parent “abandoned the child.” Petitioner’s argument
is speculative and not supported by evidence. Petitioner failed to participate in the majority of the
proceedings, even during periods of time when he was not incarcerated. He was adjudicated as
an abusing parent due to his abandonment of the child. Petitioner knew that the child was in the
DHHR’s custody, but failed to contact the DHHR or provide any support to the child. At the
time of the dispositional hearing, the child had been in foster care for fourteen months since his
birth. We have held as follows:

               “[C]ourts are not required to exhaust every speculative possibility of
       parental improvement . . . where it appears that the welfare of the child will be
       seriously threatened, and this is particularly applicable to children under the age


                                                  3
       of three years who are more susceptible to illness, need consistent close
       interaction with fully committed adults, and are likely to have their emotional and
       physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re
       R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4. Due to his abandonment of the child and
his indefinite incarceration, it is clear that there was no reasonable likelihood that petitioner
could substantially correct the conditions of abuse and neglect in the near future and that the
termination of his parental rights was in the child’s best interest, especially in light of the child’s
young age.

        Further, while petitioner argues that “given [his] efforts, a less drastic dispositional
alternative should have been applied in this case,” we have held that

                “[t]ermination 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). Although petitioner claims
that he made efforts to be released from incarceration, the record shows that he was still
incarcerated at the time of the dispositional hearing and awaiting trial. As previously discussed,
there was no reasonable likelihood that petitioner could substantially correct the conditions of
abuse and neglect in the near future. Therefore, we find no error in the circuit court’s termination
of petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 17, 2018, dispositional order is hereby affirmed.

                                                                                            Affirmed.



ISSUED: March 15, 2019


CONCURRED IN BY:

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

                                                  4
