                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: K.W.
                                                                                       FILED
                                                                                  November 23, 2015
                                                                                 RORY L. PERRY II, CLERK
No. 15-0466 (Hardy County 14-JA-18)                                            SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA



                               MEMORANDUM DECISION
        Petitioner Father B.R., by counsel Lauren M. Wilson, appeals the Circuit Court of Hardy
County’s January 29, 2015, order terminating his parental rights to K.W. The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed its
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Marla Zelene
Harman, filed a response on behalf of the child also in support of the circuit court’s order. On
appeal, petitioner alleges that the circuit court erred in denying his motion to dismiss the petition
for lack of jurisdiction, denying his motion for a post-adjudicatory improvement period, and in
terminating his parental rights without considering less-restrictive dispositional alternatives.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 2012, the mother’s parental rights to her oldest child, D.W., were terminated by the
circuit court due to her cognitive abilities and her lack of compliance and progress during her
improvement period. Petitioner was not this child’s father. The following year, the mother gave
birth to her second child, M.R.; petitioner is M.R.’s biological father. After M.R.’s birth, the
DHHR filed a petition in the circuit court alleging aggravated circumstances. At adjudication on
the new petition, the circuit court fully reviewed the mother’s circumstances and found that,
although she made some progress in finding housing and applying for disability income, she
failed to remedy the conditions of abuse and neglect necessitating the prior termination of
parental rights. Specifically, the circuit court found that “there has been no material or significant
change of circumstances or remediation of parenting deficiencies that led to the involuntary
termination,” and further that the mother had not “illustrated any ability to comply with the terms
and conditions of an improvement period.” Both petitioner and the mother then voluntarily
relinquished their parental rights to the second child.

       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.
                                                  1


        On September 18, 2014, the mother gave birth to petitioner’s newest child, K.W., who
was born prematurely and underweight at a hospital in Winchester, Virginia. As such, the child
remained hospitalized for several days after her birth. The guardian for M.R., whose case
remained open for purposes of achieving permanency, filed a new abuse and neglect petition on
September 22, 2014, alleging imminent danger to K.W. Several days later, the DHHR also filed
a petition in regard to K.W.

        In October of 2014, the circuit court held a preliminary hearing, during which petitioner
orally moved to dismiss the petitions based on a lack of jurisdiction. According to petitioner, he
and K.W.’s mother moved to Virginia five days prior to K.W.’s birth. The circuit court denied
the motion, however, and found that if petitioner had secured an apartment in Virginia, it was for
the sole purpose of evading removal of K.W. from his custody.2 That same month, the circuit
court held an adjudicatory hearing and found that petitioner failed to comprehend the parenting
deficiencies he needed to correct and that the conditions from the prior termination had not been
remedied. During this hearing, petitioner renewed his motion to dismiss the petitions for lack of
jurisdiction. Petitioner submitted a written motion to dismiss the matter, including exhibits such
as a rental agreement for an apartment in Winchester, Virginia, and a copy of a utility bill for the
apartment that showed no usage.

        In January of 2015, the circuit court held a dispositional hearing and found that petitioner
could not identify any parenting deficiencies to be corrected and that the circumstances that led
to the prior termination of parental rights had not been corrected. Further, the circuit court found
that petitioner had a previous improvement period in the case involving M.R., but failed to
comply. As such, the circuit court found there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse or neglect in the near future, denied his motion for
an improvement period, and terminated his parental rights to K.W. Petitioner appeals from the
dispositional order.

       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

       2
         Petitioner then filed a petition for writ of prohibition with this Court seeking to dismiss
the case below for lack of jurisdiction. By order entered on October 24, 2014, this Court denied
the petition.
                                                  2


       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 circuit court denying petitioner’s motion to dismiss, motion for a post­
adjudicatory improvement period, or in terminating his parental rights.

        First, the Court finds no merit in petitioner’s argument that the circuit court lacked
jurisdiction to proceed on the initial abuse and neglect petitions. According to petitioner, he and
his family moved to Winchester, Virginia, five days prior to the child’s birth. In support of the
motion to dismiss below, petitioner submitted a lease agreement for an apartment in Winchester,
Virginia, signed approximately five days prior to the child’s birth, and a utility bill for the
apartment that showed no usage. As such, he argues that the circuit court lacked jurisdiction to
proceed on the petitions. We disagree.

       West Virginia Code § 49-6-1(a) states, in pertinent part, that

       [i]f the [DHHR] or a reputable person believes that a child is neglected or abused,
       the [DHHR] or the person may present a petition setting forth the facts to the
       circuit court in the county in which the child resides, or if the petition is being
       brought by the [DHHR], in the county in which the custodial respondent or other
       named party abuser resides . . . .

According to the guardian’s initial petition below, when the child was scheduled to be released
from the hospital, she was to reside in one of two residences in Hardy County, West Virginia.
Additionally, the circuit court found that petitioner was a “resident[] of West Virginia, Hardy
County, for more than one . . . year prior to the [petitions’] filing[s],” and that upon the child’s
birth, the parents presented a West Virginia medical card at the hospital. Ultimately, in ruling on
the motion to dismiss, the circuit court noted that the alleged change of residency was for the
purpose of circumventing removal of the child. As such, we find the circuit court had jurisdiction
over the matter. Simply put, petitioner’s documents in support of his alleged move do not
evidence an intention to change his residency to the Commonwealth of Virginia, especially in
light of the fact that he presented a West Virginia medical card upon the child’s birth and lived in
Hardy County for more than a year prior to the petitions’ filings.

        Next, the Court finds no merit in petitioner’s argument that the circuit court erred in
denying his motion for a post-adjudicatory improvement period. Pursuant to West Virginia Code
§ 49-6-12(b)(2), a circuit court may only grant a post-adjudicatory improvement period when the
parent “demonstrates, by clear and convincing evidence, that the [parent] is likely to fully
participate in the improvement period . . . .” In denying petitioner’s motion, the circuit court
noted that “[petitioner] was afforded a pre-adjudicatory improvement period in the matter
[involving M.R.] during which he was non-compliant.” While petitioner argues that he satisfied
the applicable burden by giving up social security disability income in order to obtain
employment to better provide for the child, the Court does not agree. Simply put, petitioner’s
assurance that he would fully comply with an improvement period is not compelling, given his
failure to comply with an improvement period in an earlier case that was still pending in the

                                                 3


circuit court. As such, we find no error in the circuit court denying petitioner’s motion for an
improvement period.

        As to petitioner’s argument that the circuit court erred in terminating his parental rights
without considering less-restrictive alternatives, the Court finds no error. As addressed above,
the evidence established that petitioner took no steps to comply with the services the DHHR
offered in the prior abuse and neglect proceeding. Further, the circuit court noted that petitioner
could not “indicate the presence of any deficiencies in parenting ability,” despite the fact that
petitioner failed to improve his cognitive functioning or remedy the circumstances present in the
prior abuse and neglect proceeding. The circuit court also noted that petitioner’s anger
management issues persisted from the prior abuse and neglect proceeding. As such, the circuit
court found that petitioner was “presently unwilling and/or unable to provide adequately for the
child’s needs.”

         Pursuant to West Virginia Code § 49-6-5(b), “‘no reasonable likelihood that conditions of
neglect or abuse can be substantially corrected’ shall mean that, based upon the evidence before
the court, the abusing adult or adults have demonstrated an inadequate capacity to solve the
problems of abuse or neglect on their own or with help.” Based on the evidence set forth above,
it is clear that the circuit court was presented with sufficient evidence upon which to base this
finding, as well as the finding that termination of petitioner’s parental rights was necessary for
the child’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to
terminate parental rights upon these findings. Further, 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).

Syl. Pt. 4, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). While petitioner argues that he
acknowledged the conditions of abuse in the home and took steps to remedy them, the circuit
court’s finding that he could not identify any parenting deficiencies illustrates that petitioner
failed to fully acknowledge the issues of abuse present in this matter. As such, it was not error
for the circuit court to terminate petitioner’s parental rights instead of imposing a less-restrictive
dispositional alternative.

       For the foregoing reasons, we find no error in the decision of the circuit court and its
January 29, 2015, order is hereby affirmed.


                                                                                           Affirmed.

ISSUED: November 23, 2015



                                                  4


CONCURRED IN BY:

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

DISSENTING:
Justice Robin Jean Davis




                                    5
