                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                    FILED
In re D.C.                                                                       June 12, 2019
                                                                                EDYTHE NASH GAISER, CLERK
No. 19-0188 (Ohio County 18-CJA-35)                                             SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION


        Petitioner Father A.C., by counsel Betsy Griffith, appeals the Circuit Court of Ohio
County’s January 14, 2019, order terminating his parental rights to D.C.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a response
in support of the circuit court’s order. The guardian ad litem, Joseph J. Moses, filed a response on
behalf of the child also in support of the circuit court’s order. Petitioner filed a reply. On appeal,
petitioner argues that the circuit court erred in adjudicating him as an abusing parent, denying his
motion for a post-adjudicatory improvement period, and 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.

        Prior to the initiation of the instant proceedings, petitioner was the subject of child abuse
and neglect proceedings in 2016. The DHHR filed the prior child abuse and neglect petition against
petitioner after the mother, A.M., gave birth to twins, both of whom were born drug-exposed. One
twin died shortly after birth, and the other child suffered severe complications as a result of having
been drug-exposed. The DHHR alleged that petitioner knew of the mother’s drug abuse and failed
to protect the child from the same. The DHHR further alleged that petitioner had an extensive
criminal history. Before the circuit court adjudicated petitioner, it requested that this Court answer
a certified question, which this Court addressed in In re A.L.C.M., 239 W. Va. 382, 801 S.E.2d
260 (2017). Subsequently, petitioner was adjudicated as an abusing parent, and the circuit court
ultimately terminated his parental rights. Petitioner appealed and this Court affirmed the
dispositional order in In re A.C.-1, No. 18-0062, 2018 WL 2278095 (W. Va. May 18,
2018)(memorandum decision).

       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).


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        In April of 2018, E.S., the mother of the child at issue in this appeal, gave birth to D.C.,
who is petitioner’s biological child. Shortly after the child’s birth, the DHHR filed the instant child
abuse and neglect petition against the parents alleging that the mother abused opiates and cocaine
during her pregnancy and that D.C.’s urine and umbilical cord tested positive for cocaine at birth.
The DHHR alleged aggravated circumstances due to petitioner’s prior termination of parental
rights to an older child and further alleged that he knew of the mother’s drug abuse and did nothing
to protect D.C. Further, the DHHR stated that petitioner had an extensive criminal history that
included a conviction for unlawful taking of a vehicle in 1996; a conviction for conspiracy with
intent to deliver cocaine in 1998, for which he was incarcerated for eighty-seven months; a
revocation of his supervised release in 2005; a conviction for distribution of cocaine in 2005, for
which he was sentenced to forty months of incarceration; a conviction for delivery of marijuana in
2012, for which he was sentenced to one to five years of incarceration; and a conviction for
manufacturing or delivery of a controlled substance, for which he was sentenced to one to five
years of incarceration. Indeed, petitioner was incarcerated at the time of the petition’s filing and
had never met the child due to his incarceration.2

       The circuit court held an adjudicatory hearing in June of 2018. Petitioner admitted that the
case involved aggravated circumstances based upon the prior involuntary termination of his
parental rights to an older child. He also admitted that he had an extensive criminal history and
had been incarcerated since D.C.’s birth. However, petitioner did not acknowledge that those
admissions rendered him an abusing or neglecting parent. Nevertheless, the circuit court
adjudicated petitioner as a neglecting parent.

        In December of 2018, the circuit court held a dispositional hearing wherein the court took
judicial notice of petitioner’s criminal history and prior termination of his parental rights to an
older child. Petitioner testified in support of his motion for a post-adjudicatory improvement
period. Petitioner reported that he was involved in prior abuse and neglect proceedings wherein he
submitted to drug screens three times a week for approximately a year and a half. According to
petitioner, he only tested positive for drugs on two occasions during that time. Further, he
maintained employment and visited the child during those proceedings. Regarding the instant
matter, petitioner admitted that he had been incarcerated at the time of the child’s birth and had
only recently been released on parole one month prior to the dispositional hearing. During his
incarceration, petitioner completed two classes regarding substance abuse and making good
decisions. Petitioner admitted to a long criminal history of drug-related offenses but stated “I don’t
do drugs. I mean, I sell drugs.” He explained that his positive screens for controlled substances in
his prior proceedings were because “if you touch drugs so much then, yes, you can catch a dirty
[screen] from it.” Petitioner also admitted that he knew E.S. was abusing drugs while pregnant
with D.C. Nevertheless, petitioner requested an improvement period and stated that he had
employment in place, had already provided a negative drug screen for that employment, and
resided in a stable home that he owned.


       2
        The record reflects that petitioner pled guilty to attempted delivery of a controlled
substance and was sentenced to not less than one nor more than three years of incarceration in
February of 2018.

                                                  2
         The DHHR presented the testimony of a Child Protective Services (“CPS”) worker who
recommended termination of petitioner’s parental rights. The worker testified that the instant
petition had been filed based upon identical circumstances to those in the prior petition and that
petitioner had failed to address the conditions of abuse and/or neglect since that time. Petitioner
had been incarcerated throughout the proceedings and had been unable to participate in any
services offered by the DHHR. After hearing evidence, the circuit court found that petitioner had
“absolutely no relationship with the child and never contributed to the emotional, financial or
physical support of the child.” Further, per his own testimony, petitioner knew of the mother’s
drug use during her pregnancy, but took no steps to protect the child. Although petitioner claimed
to have learned from the two courses he took while incarcerated, petitioner refused to acknowledge
that his actions were abusive and/or neglectful at the adjudicatory hearing. Accordingly, the circuit
court determined that petitioner had not remedied the conditions of abuse that led to the prior
termination of his parental rights and terminated his parental rights upon findings that there was
no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the
near future and that termination was necessary for the child’s welfare. It is from the January 14,
2019, dispositional order that petitioner appeals.3

       The Court has previously established the following standard of review in cases such as this:

               “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 first argues that the circuit court erred in adjudicating him as a
neglecting parent based “solely” on his prior involuntary termination of parental rights, prior
criminal history, and incarceration at the time the petition was filed. Although petitioner stipulated
to these things, he denies that his criminal and CPS history render him a neglecting parent with
regard to D.C. According to petitioner, no evidence was presented to demonstrate “any direct,
indirect, or threat of harm to this child by [p]etitioner.” As such, he avers that his criminal acts and
incarceration, when viewed in isolation, did nothing to harm the child, and the child suffered no
harm and did not go without necessities due to any acts of petitioner. We disagree.



       3
        Both parents’ parental rights were terminated below. The child was placed in a foster home
with a permanency plan of adoption therein.
                                                   3
       We have previously noted as follows:

       At the conclusion of the adjudicatory hearing, the 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. . . . The findings must be based upon
       conditions existing at the time of the filing of the petition and proven by clear and
       convincing evidence.

In re F.S., 233 W. Va. 538, 544, 759 S.E.2d 769, 775 (2014). This Court has explained that “‘clear
and convincing’ is the measure or degree of proof that will produce in the mind of the factfinder a
firm belief or conviction as to the allegations sought to be established.” Id. at 546, 759 S.E.2d at
777 (citing Brown v. Gobble, 196 W. Va. 559, 564, 474 S.E.2d 489, 494 (1996)). However, “the
clear and convincing standard is ‘intermediate, being more than a mere preponderance, but not to
the extent of such certainty as is required beyond a reasonable doubt as in criminal cases.’” Id. at
546, 759 S.E.2d at 777 (quoting Cramer v. W. Va. Dep’t of Highways, 180 W. Va. 97, 99 n.1, 375
S.E.2d 568, 570 n.1 (1988)). Pursuant to West Virginia Code § 49-1-201, a “neglected child” is
one

       [w]hose physical or mental health is harmed or threatened by a present refusal,
       failure or inability of the child’s parent, guardian, or custodian to supply the child
       with necessary food, clothing, shelter, supervision, medical care, or education,
       when that refusal, failure, or inability is not due primarily to a lack of financial
       means on the part of the parent, guardian, or custodian.

        There was sufficient evidence presented upon which to adjudicate petitioner as a neglecting
parent. The record demonstrates, and petitioner admits, that he has an extensive criminal history
involving drug-related charges dating back to 1996. Petitioner has been incarcerated off and on
since that time. In fact, petitioner’s most recent incarceration occurred following charges of
attempted delivery of a controlled substance, cocaine, after he and the mother were pulled over in
a vehicle stop and cocaine was found on the mother’s person. Due to his incarceration, petitioner
missed the birth of his child, who was born-drug exposed and suffered from the related
complications, and had no ability to provide any of the necessary food, clothing, shelter,
supervision, medical care, or education.

        Moreover, contrary to petitioner’s argument, the circuit court considered factors in addition
to his criminal history and incarceration. The circuit court took judicial notice of petitioner’s prior
child abuse and neglect proceedings wherein he was adjudicated as an abusing parent after his
older child was born drug-exposed. As petitioner well knows, this Court has held that

              [w]hen a child is born alive, the presence of illegal drugs in the child’s
       system at birth constitutes sufficient evidence that the child is an abused and/or
       neglected child, as those terms are defined by W. Va. Code § 49-1-201 . . . , to
       support the filing of an abuse and neglect petition pursuant to W. Va. Code § 49-4-
       601 (2015) . . . .




                                                  4
A.L.C.M., 239 W. Va. at 383, 801 S.E.2d at 262, syl. pt. 1. In A.L.C.M., we found that “with respect
to [the father’s] alleged failure to stop [the mother’s] illegal drug use during her pregnancy, the
statutes governing abuse and neglect proceedings allow a finding of abuse to be based upon a
parent’s knowledge that another person is harming his/her child.” Id. at 391-92, 801 S.E.2d at 269-
70. Despite knowing that he lost his parental rights to A.L.C.M. due to his inability to address the
conditions of abuse, petitioner entered a relationship with E.S., who abused drugs during her
pregnancy and gave birth to drug-exposed D.C., but failed to take any measures to protect the
child. In this case, petitioner and the mother were together when petitioner was arrested for
attempted delivery of a controlled substance and cocaine was found on the mother’s person.
Further, petitioner later admitted at the dispositional hearing that he was aware of the mother’s
drug abuse during her pregnancy with D.C. We have previously held as follows:

       [w]here there has been a prior involuntary termination of parental rights to a sibling,
       the issue of whether the parent has remedied the problems which led to the prior
       involuntary termination sufficient to parent a subsequently-born child must, at
       minimum, be reviewed by a court, and such review should be initiated on a petition
       pursuant to the provisions governing the procedure in cases of child neglect or
       abuse set forth in West Virginia Code §§ 49-6-1 to -12 (1998) [now West Virginia
       Code §§ 49-4-601 through 49-4-610]. Although the requirement that such a petition
       be filed does not mandate termination in all circumstances, the legislature has
       reduced the minimum threshold of evidence necessary for termination where one
       of the factors outlined in West Virginia Code § 49-6-5b(a) (1998) [now West
       Virginia Code § 49-4-605(a)] is present.

In re Kyiah P., 213 W. Va. 424, 427, 582 S.E.2d 871, 874 (2003) (quoting syl. pt. 2, In the Matter
of George Glen B., Jr., 205 W. Va. 435, 518 S.E.2d 863 (1999)). Clearly, petitioner failed to
remedy the conditions of abuse that led to the termination of his parental rights to his older child.
As such, while the circuit court’s order does not specifically set forth these facts in its order
adjudicating petitioner, it did base its decision generally upon the existing aggravated
circumstances. The fact remains that petitioner knew of the mother’s substance abuse but failed to
protect the child, in addition to his failure to provide the child with the necessary food, clothing,
shelter, supervision, medical care, or education as a result of his incarceration on drug-related
charges. Accordingly, we find no error in the circuit court’s decision to adjudicate petitioner as a
neglecting parent.

         Petitioner next argues that the circuit court erred in denying his motion for a post-
adjudicatory improvement period. According to petitioner, he “has taken sufficient steps to remedy
the problems of abuse which led to his previous involuntary termination [of parental rights] to his
first child.” Specifically, petitioner testified that he voluntarily completed two programs while
incarcerated during the proceedings, acknowledged that he has sold drugs in the past and needs
help with this issue, agreed to submit to drug screens and treatment, maintained suitable housing,
and agreed to discontinue any communication with the mother. As such, petitioner avers that he
demonstrated that he was likely to participate in an improvement period and should have been
granted the same. We find petitioner’s argument to be without merit.




                                                 5
        The decision to grant or deny an improvement period rests in the sound discretion of the
circuit court. See In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“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) (“It is within the
court’s discretion to grant an improvement period within the applicable statutory requirements . .
. .”).

        The circuit court did not abuse its discretion in denying petitioner’s request for an
improvement period. Despite having his parental rights to an older child involuntarily terminated
due to his criminal activity and involvement with drugs, petitioner maintained throughout the
proceedings that his activity had no effect on the child. While petitioner avers that he has
acknowledged that he has sold drugs in the past and testified at the dispositional hearing that he
learned how his actions affected his child, he has failed to meaningfully accept responsibility for
his actions. Even on appeal petitioner maintains that his criminal history and incarceration had no
impact on his child. We have previously noted that

       [f]ailure 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, 55, 743 S.E.2d 352, 363 (2013) (quoting In re Charity H., 215
W. Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Granting petitioner an improvement period would
have been an exercise in futility at D.C.’s expense given petitioner’s refusal or inability to
understand how his criminal actions and involvement with drugs have affected the child.
Moreover, while petitioner points out that he successfully submitted to drug screens in prior
proceedings and maintained suitable housing, we have previously held that

               “[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 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. Here, petitioner failed to acknowledge
how his criminal actions have affected the child and, while he appears to be able to pass drug
screens, the circuit court was not required to exhaust every speculative possibility of parental
improvement in this case, especially where petitioner himself noted that selling drugs, and not
abusing them, is his problem. Accordingly, we find no error in the circuit court’s decision to deny
petitioner’s request for an improvement period.

       Petitioner lastly argues that the circuit court erred in terminating his parental rights rather
than granting him a less-restrictive disposition. According to petitioner, the circuit court was
required to give precedence to the dispositions as listed in West Virginia Code § 49-4-604(b) and

                                                  6
that it should have granted him disposition pursuant to § 49-4-604(b)(5). We find no error in the
circuit court’s termination of petitioner’s parental rights.

         Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed 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) defines “no reasonable likelihood that [the]
conditions of abuse or neglect can be substantially corrected” as follows: “the abusing [parent] . .
. ha[s] demonstrated an inadequate capacity to solve the problems of abuse or neglect on [his] own
or with help.”

        Here, petitioner’s parental rights were previously terminated to an older child due to his
failure to protect the child from the mother’s drug abuse and subsequent failure to address the
circumstances of abuse. Despite the experience of those prior proceedings, petitioner again entered
into a relationship with a drug abuser, who gave birth to a drug-exposed child. Clearly, petitioner
failed to address the circumstances of abuse from the prior proceedings. To the extent petitioner
argues that he completed two classes while incarcerated and maintains his own home, we note that
petitioner failed to meaningfully acknowledge how his actions affected the child and further point
out that housing was not an issue raised in the petition. While petitioner argues that he should have
been granted a less-restrictive alternative to termination of his parental rights, we have previously
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). Given petitioner’s failure to
address the conditions of abuse and meaningfully acknowledge how his actions affect his child,
we find no error in the circuit court’s finding that there was no reasonable likelihood that the
conditions of abuse and/or neglect could be substantially corrected in the near future and that
termination was necessary for the child’s welfare. Therefore, we likewise find no error in the
termination of petitioner’s parental rights.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 14, 2019, order is hereby affirmed.



                                                                                          Affirmed.




                                                 7
ISSUED: June 12, 2019


CONCURRED IN BY:

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




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