                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS

                                                                                     FILED
In re B.H.-1                                                                      June 11, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0174 (Randolph County 2017-JA-025)                                        SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
        Petitioner Father B.H.-2, by counsel J. Brent Easton, appeals the Circuit Court of
Randolph County’s January 19, 2018, order terminating his parental rights to B.H.-1.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N.
Felton-Ernest, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), G. Phillip Davis, 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 prior to 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.

        On May 2, 2017, the DHHR filed an abuse and neglect petition against petitioner alleging
that the mother tested positive for Suboxone upon the delivery of B.H. The petition further
alleged that, although the mother had a prescription for Suboxone, she had a history of substance
abuse that led to the termination of her parental rights to three older children. In the petition, the
DHHR alleged that B.H. suffered severe withdrawal symptoms including seizures, myoclonic
jerks, loose stools, and sleeping less than two hours after feeding. He was transferred to Ruby
Memorial Hospital for further treatment. According to the petition, the mother reported that
petitioner was incarcerated on federal charges related to manufacturing methamphetamine.

        On August 30, 2017, the DHHR filed an amended abuse and neglect petition alleging that
petitioner was released from federal incarceration, subsequent to the filing of the original
                                                            
              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). Additionally, because the child and petitioner have the same
initials, they will be referred to as B.H.-1 and B.H.-2, respectively, throughout this memorandum
decision.


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petition. The petition alleged that petitioner was incarcerated upon drug-related crimes in 2013
and was sentenced to fifteen months incarceration followed by three years of supervised release.
In March 2017, a warrant was issued for petitioner’s arrest following multiple violations of his
supervised release, including possession of drugs and needles and positive drug screens for
methamphetamine. The petition further alleged that petitioner struggled with substance abuse
and that he had multiple positive drug screens in July of 2017 and August of 2017. As a result of
his positive drug screens, petitioner was only able to visit the child twice. Petitioner waived his
preliminary hearing. On September 25, 2017, the circuit court held an adjudicatory hearing at
which petitioner stipulated to adjudication and filed a motion for a post-adjudicatory
improvement period. The circuit court adjudicated petitioner as an abusing parent and did not
rule on his motion for a post-adjudicatory improvement period.

        On January 4, 2018, the circuit court held a dispositional hearing at which petitioner
renewed his motion for a post-adjudicatory improvement period. Both the guardian and the
DHHR objected to petitioner’s motion for a post-adjudicatory improvement period and moved
for termination of petitioner’s parental rights. The DHHR presented testimony that petitioner had
twenty-three negative drug screens, but that he had positive drug screens for methamphetamine
and amphetamines in July of 2017, August of 2017, September of 2017, and December of 2017.
Petitioner participated in substance abuse treatment in October of 2017. A CPS worker testified
regarding petitioner’s drug-related criminal history. She also testified that the parents missed
visits and were frequently late to visits with the child.

         Petitioner testified regarding his substance abuse issues and explained that his addiction
to methamphetamine began in 2012 and that he was arrested in 2013 for buying Sudafed in order
to make methamphetamine. Petitioner admitted that he tested positive for methamphetamine
recently, but that he “didn’t intentionally do it.” According to petitioner, the most recent positive
drug screen for methamphetamine was caused by smoking an electronic cigarette that was given
to him by a stranger in front of a convenience store. He also claimed that the hypodermic needles
found in his home in March of 2017, resulting in a violation of his supervised release, belonged
to someone else living in his home. Additionally, he testified that six hypodermic needles found
in his home in November of 2016, belonged to another individual staying at the home. He further
testified that he had successfully raised other children who were now raising their own children.
The circuit court did not accept petitioner’s explanations for the two instances wherein
hypodermic needles were found in his home or his explanation for his most recent positive drug
screen. Further, the circuit court denied petitioner’s motion for an improvement period. The
circuit court found that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and neglect, and specifically, the parents “don’t want to do what is in the
child’s best interest as to drug use” and lifestyle. In light of the child’s young age, the circuit
court found it was in his best interests for petitioner’s parental rights to be terminated.
Ultimately, the circuit court terminated petitioner’s parental rights in its January 19, 2018, order.2
It is from this order that petitioner appeals.

              The Court has previously established the following standard of review:

                                                            
              2
       The mother’s parental rights were also terminated. According to the parties, the
permanency plan for the child is adoption by his maternal grandmother.
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               “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, this Court
finds no error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred in denying his motion for a post-
adjudicatory improvement period prior to terminating his parental rights. In support of this
argument, petitioner asserts that twenty-three out of twenty-eight of his drug screens were
negative and that he enjoyed visits with his child and hoped to “increase the frequency of the
visits as part of an improvement period.” We do not find this argument persuasive.

        Pursuant to West Virginia Code § 49-4-610(2), “a court may grant a [parent] an
improvement period of a period not to exceed six months when . . . [t]he [parent] demonstrates,
by clear and convincing evidence, that the [parent] is likely to fully participate in the
improvement period[.]” Further, “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). Petitioner acknowledges that the circuit court is under no obligation
to grant him an improvement period. However, petitioner offers no evidence to support his
assertion that he would be likely to successfully complete an improvement period. Further,
although petitioner argues that he successfully raised his older children while clean from drugs,
petitioner fails to recognize his more recent struggle with substance abuse. The record shows that
petitioner was incarcerated on drug-related charges and later violated his supervised release
when he was found to have hypodermic needles in his home. Petitioner refused to take
responsibility for the needles found in his home and blamed someone that lived in his home at
the time. Petitioner further refused to take responsibility for a drug screen positive for
methamphetamine in December of 2017, blaming it on smoking an electronic cigarette. On
appeal, petitioner also fails to acknowledge the fact that he tested positive for methamphetamine
and amphetamines multiple times during the proceedings and that he was late for multiple visits
and missed visits with the child. Based on this evidence, petitioner did not demonstrate by clear
and convincing evidence that he was likely to fully participate in a post-adjudicatory
improvement period. Therefore, the circuit court did not err in denying him the same.




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        Further, we find no error in the circuit court’s termination of petitioner’s parental rights.
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)(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[.]” The evidence discussed above also supports the circuit court’s findings
that there was no reasonable likelihood that petitioner could substantially correct the conditions
of abuse and neglect in the near future, and that, due to the child’s young age, termination of
petitioner’s parental rights was in the child’s best interests.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 19, 2018, dispositional order is hereby affirmed.


                                                                                          Affirmed.




ISSUED: June 11, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

Justice Loughry, Allen H., II suspended and therefore not participating.
        

 




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