                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

                                                                                  FILED
                                                                                May 23, 2016
In re: B.S.                                                                    RORY L. PERRY II, CLERK

                                                                             SUPREME COURT OF APPEALS

                                                                                 OF WEST VIRGINIA

No. 15-1114 (Kanawha County 11-JA-225)


                              MEMORANDUM DECISION

        Petitioner Father L.S., by counsel Jason S. Lord, appeals the Circuit Court of Kanawha
County’s July 27, 2015, order terminating his parental rights to B.S. The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed its
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Sharon K.
Childers, filed a response on behalf of the child supporting the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in finding that he did not successfully complete his
improvement period.1

        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 October of 2013, the DHHR filed an abuse and neglect petition alleging that petitioner
and the mother continually exposed B.S. to domestic violence, engaged in drug use and
distribution in the home, failed to protect B.S. from domestic violence and drug activity, and
failed to provide B.S. with the proper food, clothing, supervision, and housing. The DHHR also
alleged that petitioner and the mother were unemployed and unable to provide for B.S. without
help from others, and failed to provide B.S. with a safe and stable home. The DHHR further
alleged that petitioner had a history of drug use and distribution and was previously incarcerated
on drug charges in the Commonwealth of Kentucky. The circuit court entered an order filing the
petition and placing B.S. in the temporary custody of the DHHR.

        In November of 2013, the circuit court held a preliminary hearing. Neither petitioner nor
the mother attended the hearing in person, but both were represented by counsel. The circuit
court found that imminent danger to B.S.’s physical well-being existed; there was no reasonably


       1
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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available alternative to B.S.’s removal from the home; and continuation in the home was
contrary to B.S.’s best interests. B.S. was later placed with her maternal grandmother.

        In March of 2014, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to engaging in domestic violence in B.S.’s presence. The circuit court accepted his
stipulation and adjudicated petitioner an abusing parent. The circuit court granted the guardian’s
motion to have petitioner drug screened before he left the courthouse. The circuit court also
granted petitioner’s motion for services to begin and the DHHR’s motion for B.S.’s placement to
remain with her maternal grandmother. Subsequently, in May of 2014, the circuit court granted
petitioner a post-adjudicatory improvement period. Petitioner was ordered to attend parenting
classes, adult life skills classes, domestic violence counseling, and to submit to random drug
screening. The circuit court also granted him supervised visitation with B.S.

        In December of 2014, the circuit court held a review hearing on petitioner’s post­
adjudicatory improvement period. At the close of the hearing, the circuit court granted the
DHHR discretion to increase supervised visitation and/or institute unsupervised visitation. The
circuit court noted that petitioner continued to comply with the terms and conditions of his
improvement period. Petitioner was ordered to provide proof of his participation in the batterers
intervention and prevention program (“BIPPS”). In January of 2015, petitioner tested positive for
opiates and hydrocodone. At a subsequent review hearing, the DHHR recommended that
petitioner’s improvement period continue and that B.S. remain with her grandparents until
petitioner screens negative for drugs. After a review of petitioner’s improvement period, the
circuit court found that he continued to substantially comply with the terms and conditions of the
improvement period and granted him unsupervised, weekend visits with B.S.

        In April of 2015, the DHHR provided the circuit court with a summary regarding an
incident between petitioner and the mother during an unsupervised visit with B.S. According to
the DHHR’s circuit court summary, petitioner struck the mother, screamed at her, and killed the
family’s small dog, all in B.S.’s presence. Following the summary’s submission, the circuit court
held a review hearing on May 26, 2015. Neither of the parties appeared in person but both were
represented by counsel. The DHHR recommended the termination of petitioner’s improvement
period, visits with B.S., and parental rights. The circuit court found that petitioner’s improvement
period had expired and that petitioner caused “severe psychological harm to the child” by killing
the family dog in B.S.’s presence.

         In July of 2015, the circuit court held a dispositional hearing. The DHHR’s caseworkers
testified that petitioner and the mother continued to engage in domestic violence throughout the
course of their improvement periods. The caseworkers also testified that petitioner and the
mother engaged in a severe domestic violence incident wherein B.S. indicated that petitioner
physically abused the mother and killed the family dog. B.S.’s leg was also cut during the
incident. Following the presentation of evidence and testimony, the circuit court found that,
despite petitioner’s completion of a domestic violence program, he “continues to display his
anger, aggression, and violence in his domestic relationship” which demonstrates his inability to
implement the program’s education and tools. The circuit court further found that petitioner
continued to “knowingly expose [B.S.] to a dangerous environment full of domestic violence,”
stopped participating in his improvement period services, and failed to participate in random

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drug screening. Based on the evidence presented, the circuit court determined that there was no
reasonable likelihood that the conditions of abuse and neglect could substantially be corrected in
the near future because petitioner failed to take the appropriate steps to remedy the circumstances
which led to the filing of the petition. The circuit court further determined that termination of
petitioner’s parental rights was in B.S.’s best interest. By order entered on this date, the circuit
court terminated petitioner’s parental rights to B.S. It is from this order petitioner now 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). On appeal, petitioner argues that
the circuit court erred in terminating his improvement period. Specifically, petitioner contends
that he completed his improvement period to such an extent that he should have received
additional time.

       We have held that

               [a]t the conclusion of the improvement period, the court shall review the
       performance of the parents in attempting to attain the goals of the improvement
       period and shall, in the court’s discretion, determine whether the conditions of the
       improvement period have been satisfied and whether sufficient improvement has
       been made in the context of all the circumstances of the case to justify the return
       of the child.

Syl. Pt. 6, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991). Additionally, pursuant to
West Virginia Code § 49-4-610(6)

       [a] court may extend any improvement period granted pursuant to subdivision (2)
       or (3) of this section for a period not to exceed three months when the court finds
       that the respondent has substantially complied with the terms of the improvement
       period; that the continuation of the improvement period will not substantially
       impair the ability of the department to permanently place the child; and that the
       extension is otherwise consistent with the best interest of the child.

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It is clear from the record that petitioner failed to meet his burden to justify extending his
improvement period.

        In the case at hand, petitioner was granted a post-adjudicatory improvement period and
was ordered to participate in several services, including parenting classes, adult life skills classes,
domestic violence counseling, and random drug screening. He initially complied with the terms
and conditions of his improvement period and was granted unsupervised, weekend visitation
with B.S. However, petitioner’s actions demonstrated his failure to benefit from the services
provided to him. According to the record on appeal, despite his participation in services designed
to remedy the conditions of abuse and neglect, petitioner and the mother engaged in a severe
domestic violence incident. At the disposition hearing, testimony established that petitioner
physically and verbally abused the mother and killed the family dog, all in B.S.’s presence.
Testimony also established that petitioner injured B.S. during the incident and stopped
participating in services after the incident. Based on the evidence presented, the circuit court
determined that petitioner failed to make sufficient improvement to justify the return of B.S. to
his custody. Therefore, considering the circumstances of the case, the circuit court correctly
determined that petitioner did not successfully complete his improvement period.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 27, 2015, order is hereby affirmed.


                                                                                            Affirmed.

ISSUED: May 23, 2016


CONCURRED IN BY:

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




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