                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In re: C.S.                                                                     FILED
                                                                           November 22, 2017
No. 17-0333 (Roane County 16-JA-18)                                          EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Father M.S., by counsel Ryanne A. Ball, appeals the Circuit Court of Roane
County’s March 8, 2017, order terminating his parental rights to C.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”), Leslie L.
Maze, 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 him a post-adjudicatory improvement
period and in terminating his parental rights.

        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 May of 2016, the DHHR filed an abuse and neglect petition against petitioner, which
alleged abuse and neglect based on his chronic drug use and the resulting impairment of his
parenting due to that drug use. The DHHR further alleged that petitioner had an extensive drug-
related criminal history, including a pending charge of possession with intent to deliver
methamphetamine, a charge of possession of heroin, and two charges of possession of a firearm
by a prohibited person.

        In January of 2017, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the impairment of his ability to parent due to his drug use. In February of 2017, the
DHHR filed a motion to terminate petitioner’s parental rights based on his continued drug use
and lack of effort to comply with services since the onset of this case in May of 2016.



       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).


                                                1

        Also in February of 2017, the circuit court held a dispositional hearing wherein petitioner
moved for a post-adjudicatory improvement period. A caseworker testified that her efforts to
contact petitioner failed and that she was unable to initiate parenting and adult life skills services
for petitioner. The caseworker also testified that petitioner failed to contact the DHHR and only
participated in two of the eight requested drug screens, both of which were positive for
methamphetamines and amphetamines; and that petitioner did not visit with the child due to his
positive drug screens. Petitioner admitted that he continued to abuse drugs during the
proceedings, and even as recently as four days prior to the dispositional hearing. At the
conclusion of the hearing, the circuit court found no evidence that petitioner would be likely to
comply with the terms and conditions of an improvement period and denied petitioner’s motion
for a post-adjudicatory improvement period. The circuit court also found no reasonable
likelihood that petitioner could correct the conditions of abuse and neglect in the near future
given his continued drug abuse, non-compliance with services, and lack of contact with the child
due to his continued drug abuse. Ultimately, the circuit court terminated his parental rights in its
March 8, 2017, order.2 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 proceedings below.

        First, petitioner argues that he should have been granted a post-adjudicatory improvement
period. To support his argument, petitioner asserts that he was open and honest about his struggle
with drug addiction and wished to obtain treatment for his addiction. In order to obtain a post­
adjudicatory improvement period, West Virginia Code § 49-4-610(2)(B) requires that the parent
“demonstrate[ ], by clear and convincing evidence, that [the parent] is likely to fully participate
in an improvement period . . . .” Further, we have often noted that the decision to grant or deny
an improvement period rests in the sound discretion of the circuit court. See In re: M.M., 236

       2
         In addition to petitioner’s parental rights being terminated below, the mother’s parental
rights were also terminated. According to the DHHR and the guardian, the child is placed in a
foster home with a permanency plan of adoption in that home.

                                                  2

W.Va. 108, 115, 778 S.E.2d 338, 345 (2015) (holding that “West Virginia law allows the circuit
court discretion in deciding whether to grant a parent an improvement period”); Syl. Pt. 6, in
part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (holding that “[i]t is within the court’s
discretion to grant an improvement period within the applicable statutory requirements”).

        Here, petitioner failed to prove by clear and convincing evidence that he was likely to
substantially comply with the terms and conditions of a post-adjudicatory improvement period
because he failed to participate in services and failed multiple drug screens. According to the
record on appeal, petitioner had an extensive drug-related criminal history, including a pending
charge of possession with intent to deliver methamphetamine, charge of possession of heroin,
and two charges of possession of a prohibited firearm. Additionally, the DHHR established that
petitioner failed to make any effort to participate in services. Further, petitioner only participated
in two of the eight requested drug screens during proceedings and admitted to using drugs
throughout proceedings and as recently as four days before the dispositional hearing. Based on
this evidence, petitioner failed to prove by clear and convincing evidence that he was likely to
substantially comply with the terms and conditions of a post-adjudicatory improvement period
and, therefore, 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
without first granting him an improvement period. Petitioner asserts that there was a reasonable
likelihood that he could have corrected the conditions of abuse and neglect if given an
improvement period and an opportunity to attend a drug treatment program. We disagree. As
discussed above, petitioner did not meet the burden necessary to receive an improvement period.
Further, West Virginia Code § 49-4-604(b)(6) directs circuit courts 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 child’s
welfare. West Virginia Code § 49-4-604(c)(3) provides that no reasonable likelihood that the
conditions of abuse or neglect can be substantially corrected exists when “[t]he abusing parent . .
. ha[s] not responded to or followed through with a reasonable family case plan or other
rehabilitative efforts[.]”

        Here, it is clear that there was no reasonable likelihood that petitioner could substantially
correct the conditions of abuse or neglect in the near future. As discussed above, petitioner had
an extensive drug-related criminal history and continued to use drugs throughout the abuse and
neglect proceedings. Additionally, the record on appeal shows that petitioner failed to make an
effort to participate in services, failed to participate in the majority of requested drug screens,
tested positive for drugs when he did screen, and did not visit the child.

       We have previously held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49-6-5 [now 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 W. Va.Code [§] 49-6-5(b) [now West Virginia Code


                                                  3

       § 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). Here, the circuit court found
that termination of parental rights was in the best interest of the child. For these reasons, 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
March 8, 2017, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: November 22, 2017


CONCURRED IN BY:

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




                                                 4

