                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS                                  FILED
                                                                                  January 17, 2020
                                                                                   EDYTHE NASH GAISER, CLERK
                                                                                   SUPREME COURT OF APPEALS
In re K.H.-1, K.H.-2, W.H.-1, B.H., and A.H.                                           OF WEST VIRGINIA


No. 19-0474 (Harrison County 17-JA-142-2, 17-JA-143-2, 17-JA-144-2, 17-JA-145-2, and 17-
JA-146-2)



                               MEMORANDUM DECISION



        Petitioner Father W.H.-2, by counsel Julie N. Garvin, appeals the Circuit Court of Harrison
County’s March 19, 2019, order terminating his parental rights to K.H.-1, K.H.-2, W.H.-1, B.H.,
and A.H.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, Dreama
D. Sinkkanen, filed a response on behalf of the children also in support of the circuit court’s order.
On appeal, petitioner argues that the circuit court erred in denying his motion for a post-
dispositional 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.

        In October of 2017, the DHHR filed a child abuse and neglect petition against petitioner
and the mother after conducting a lengthy investigation regarding conditions in the home. The
DHHR alleged that the children had been living with different friends and family since August of
2017 due to their parents’ erratic behaviors and inability to provide for their children. Thereafter,
petitioner took no responsibility for his children and failed to participate in their lives. At the end

       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 two of the children share the same initials,
we will refer to them as K.H.-1 and K.H.-2, respectively, throughout this memorandum decision.
Further, because one of the children and petitioner share the same initials, we will refer to them as
W.H.-1 and W.H.-2, respectively.


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of August of 2017, the DHHR received a referral that K.H.-2 called a family friend, crying and
scared. K.H.-2 asked the family friend to pick him up from his home because his mother “was
acting crazy and . . . the police were coming to take everyone away.” A Child Protective Services
(“CPS”) worker visited the home and spoke with the children. K.H.-1 and K.H.-2 reported that
petitioner could be violent and that his violent outbursts were very scary. The children also reported
that their parents did not provide them with food to eat, spent a lot of time in a shed behind their
home, and used drugs. The children further reported that they were scared to live in their home.
The worker made initial contact with the parents that day, but was unable to locate them throughout
September and October of 2017. The petition also alleged that petitioner had a criminal history,
which included, but was not limited to, domestic battery of K.H.-1 and the children’s mother and
a DUI. The DHHR concluded that petitioner had a history of domestic violence, failed to
adequately supervise the children, subjected the children to unsafe conditions and a drug-
endangered environment, and failed to provide the children with general necessities, all of which
constituted abuse and neglect of his children.

         In November of 2017, the circuit court held a preliminary hearing where petitioner
requested that the DHHR maintain legal and physical custody of his children due to his
homelessness and continued use of methamphetamines. Shortly thereafter, the DHHR set up
services for petitioner, including random drug screens, a drug and alcohol assessment, supervised
visitation, individualized parenting and adult life skills classes, individual therapy, and a
psychological parenting evaluation. In January 2018, petitioner submitted to the psychological
parenting evaluation. The psychologist recommended that petitioner partake in an intensive
outpatient treatment program or residential treatment for his drug use.

        In February of 2018, the circuit court held an adjudicatory hearing. Petitioner entered into
a stipulated adjudication based upon the allegations contained in the petition. Accordingly, the
circuit court adjudicated petitioner as an abusing parent based upon his issues with substance
abuse, domestic violence, and his general failure to provide for the children. Thereafter, petitioner
moved for a post-adjudicatory improvement period. This motion was later granted, and the terms
of the improvement required petitioner to maintain a stable, clean, and drug-free residence and
participate in out-patient treatment as recommended, random drug screens, alcohol and narcotics
anonymous meetings, and parenting classes, among other things. Petitioner was largely non-
compliant with these terms and was arrested on two different occasions for the felony offenses of
conspiracy to commit delivery of a controlled substance and possession with the intent to deliver
a controlled substance. Despite his continued substance abuse issues and general noncompliance,
petitioner filed a motion for a post-dispositional improvement period in December of 2018.

        In February of 2019, the circuit court held a hearing on petitioner’s motion for a post-
dispositional improvement period and a dispositional hearing. Petitioner submitted to a court-
ordered drug screen prior to the commencement of the hearing and tested positive for
amphetamine, methamphetamine, and benzodiazepines. The DHHR presented the testimony of
multiple witnesses, including petitioner’s evaluating psychologist, police officers, service
providers, a substance abuse case manager from United Summit Center, the program director at
Appalachian Teen Challenge, and a CPS worker. The police officers testified in regard to
petitioner’s drug-related arrests in May and August of 2018. Specifically, in May of 2018,
petitioner was arrested after a traffic stop revealed petitioner’s possession of heroin, Tramadol,

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Xanax, marijuana, empty baggies, scales, syringes, two stolen firearms, ammunition, and a large
amount of cash. Similarly, in August of 2018, petitioner was arrested after a traffic stop revealed
his possession of a white powder that field-tested positive for methamphetamine, digital scales,
two firearms, a large amount of cash, and a counterfeit twenty-dollar bill.

        The substance abuse case manager from United Summit Center and the program director
at Appalachian Teen Challenge both testified in regard to petitioner’s noncompliance with the drug
rehabilitation services offered to him. The case manager from United Summit Center testified that
after multiple missed and rescheduled appointments, petitioner was scheduled to begin the
substance abuse intensive outpatient program (“SAIOP”) in April of 2018, but never began and
was discharged for noncompliance in June of 2018. Petitioner was again referred to begin the
SAIOP on three other occasions spanning from September of 2018 to January of 2019, but either
did not show up or failed to complete the program after attending only two sessions. Similarly, the
program director at Appalachian Teen Challenge testified that petitioner enrolled in its twelve-
month, in-patient substance abuse treatment program on June 5, 2018, and left on June 27, 2018,
to appear in court but never returned.

         The evaluating psychologist testified that petitioner presented for his evaluation in January
of 2018. Petitioner informed the psychologist that he had a prescription for Xanax; however, the
psychologist noted that petitioner showed no symptoms of anxiety or trauma that would warrant
such a prescription. Petitioner also informed the psychologist that he had a long history of
substance abuse beginning at age twelve. He reported having a long period of sobriety before he
started abusing pain pills and methamphetamine in 2015. Petitioner further informed the
psychologist that he engaged in daily methamphetamine use and last used the day before his
evaluation. The psychologist found that petitioner understood and could differentiate between
abuse and appropriate parenting and did not have any cognitive defects; however, his substance
abuse issues impacted his ability to adequately parent his children. The psychologist testified that
his initial prognosis for petitioner was “guarded,” noting that petitioner would be unable to provide
for his children while in active substance abuse. However, after the psychologist was presented
with the information of petitioner’s arrests and noncompliance with services and treatment efforts
at the hearing, he changed his prognosis of petitioner to “poor.”

         The service providers and CPS worker offered additional testimony about petitioner’s
noncompliance with services. Their testimony revealed that petitioner was referred to Family
Optics for supervised visitation, adult life skills, and individualized parenting services in October
of 2017. Of petitioner’s twelve scheduled visits, he missed four, was late to five, and was ultimately
discharged for noncompliance. Petitioner was also referred to HomeBase, Inc. for supervised
visitation services from May of 2018 until July of 2018. During that time, petitioner only
participated in one visit, for which he arrived late. Services were closed for noncompliance
thereafter but were reopened to petitioner in November of 2018. However, the provider was unable
to contact petitioner, and petitioner never contacted the provider. As such, services were again
closed by HomeBase due to petitioner’s noncompliance. Petitioner had one visit with his children
in March of 2018 and one visit in June of 2018. As of the date of the dispositional hearing,
petitioner had not seen his children since the June of 2018 visit. Lastly, petitioner was ordered in
April of 2018 to submit to drug and alcohol screens at the Harrison County Day Report Center
every day the center was open. Of petitioner’s 242 scheduled screens, he missed 208, all of which

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the circuit court considered to be positive, excluding the dates petitioner was incarcerated. Of the
thirty-five screens petitioner submitted to, only nine were negative, with the remainder being
positive for an array of substances at each screen. Based upon petitioner’s continued drug use and
failure to participate in any services designed to reduce or prevent the circumstances of abuse to
the children, the CPS worker testified that the DHHR recommended termination of his parental
rights.

        After hearing the evidence presented, the circuit court denied petitioner’s motion for a post-
dispositional improvement period and terminated his parental rights. In making its findings, the
circuit court determined that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and neglect in the near future given his habitual use of controlled substances
and failure to follow through with the appropriate and recommended treatment, services, and
rehabilitative efforts offered to him. Accordingly, the circuit court concluded that the children’s
best interests required termination of petitioner’s parental rights. It is from the March 19, 2019,
dispositional order that petitioner appeals.2

       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 first argues that he was entitled to a post-dispositional improvement
period because he filed the appropriate motion, demonstrated his willingness to participate in the
improvement period, and experienced a substantial change in circumstances. According to
petitioner, his strong bond with his children, his acknowledgment of his substance abuse problem
and poor decision making, and his need for intensive rehabilitation warranted a post-dispositional
improvement period. We disagree.



       2
         The mother’s parental rights to the children were also terminated below. According to the
guardian, K.H.-1 has reached the age of majority and is no longer in the DHHR’s custody. K.H.-2
is placed in the home of a classmate’s family with a permanency plan of legal guardianship. W.H.-
1, B.H., and A.H. are placed together in a kinship placement with a permanency plan of adoption
therein.
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         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 . .
. .”). Pursuant to West Virginia Code § 49-4-610(3)(D) (2015), a circuit court may grant a post-
dispositional improvement period when,

       [s]ince the initiation of the proceeding, the [parent] has not previously been granted
       any improvement period or the [parent] demonstrates that since the initial
       improvement period, the [parent] has experienced a substantial change in
       circumstances. Further, the [parent] shall demonstrate that due to that change in
       circumstances, the [parent] is likely to fully participate in the improvement period.

        Because petitioner was granted a post-adjudicatory improvement period, he was required
to demonstrate a substantial change in circumstances in addition to his likelihood of fully
participating in an improvement period in order to be granted a post-dispositional improvement
period. While petitioner asserts that he had a substantial change in circumstances, he offers no
evidence in support of this assertion. Moreover, although petitioner argues that his
acknowledgment of his substance abuse problem and strong bond with his children demonstrated
his likelihood of fully participating in a post-dispositional improvement period, he fails to
acknowledge his virtually non-existent participation in the post-adjudicatory improvement period.
As noted in detail above, the record reflects that petitioner was given extensive opportunities to
correct the problems and deficiencies that led to the filing of the petition in this matter but failed
to partake in the myriad of resources offered to him. Given petitioner’s overall failure to comply
with the terms of his post-adjudicatory improvement period, we find no error in the circuit court’s
denial of his motion for a post-dispositional improvement period.

        Finally, petitioner argues that the circuit court erred in terminating his parental rights, as
opposed to imposing a less-restrictive dispositional alternative. Specifically, petitioner argues that
the circuit court could have protected the welfare of his children by terminating his custodial rights
as opposed to his parental rights. Additionally, petitioner argues that there was insufficient
evidence to support the circuit court’s findings that there was no reasonable likelihood the
conditions of neglect or abuse could be corrected and that termination was necessary for the
children’s welfare. Upon our review, however, we find that these findings were based on
substantial evidence and were not in error.

        Many of the same facts the circuit court relied upon in denying petitioner’s motion for a
post-dispositional improvement period also support the findings at issue in this assignment of
error. Most notably, petitioner’s noncompliance with the terms and conditions of his post-
adjudicatory improvement period and his habitual drug use demonstrate that there was no
reasonable likelihood that he could substantially correct the conditions of neglect and abuse.
Pursuant to West Virginia Code § 49-4-604(c)(3) (2019), a situation in which there is no reasonable
likelihood the conditions of abuse and neglect can be substantially corrected includes one in which




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       [t]he abusing parent . . . [has] not responded to or followed through with a
       reasonable family case plan or other rehabilitative efforts of social, medical, mental
       health or other rehabilitative agencies designed to reduce or prevent the abuse or
       neglect of the child, as evidenced by the continuation or insubstantial diminution
       of conditions which threatened the health, welfare, or life of the child.

Additionally, under West Virginia Code § 49-4-604(c)(1), a situation in which there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes
one in which

       [t]he abusing parent . . . [has] habitually abused or [is] addicted to alcohol,
       controlled substances or drugs, to the extent that proper parenting skills have been
       seriously impaired and the person or persons have not responded to or followed
       through the recommended and appropriate treatment which could have improved
       the capacity for adequate parental functioning.

        As set forth in detail above, petitioner failed to comply with the terms and conditions of
his post-adjudicatory improvement period despite the countless opportunities he was given to
improve his parenting and treat his substance abuse. In fact, petitioner’s compliance was so dismal,
the circuit court noted that “in thirty-six years, [it] [had] never met a parent who [had] done less
or who [had] put himself first before his children to such a degree.” While petitioner asserts that
the circuit court could have protected the welfare of his children by terminating his custodial rights
as opposed to his parental rights, he fails to acknowledge that this result would have prevented his
children from achieving a permanent, stable home. Moreover, the circuit court found that
petitioner’s habitual, pervasive, and severe drug abuse “seriously impair[ed] his parenting skills to
[such] a degree as to pose an imminent risk to the children’s health, safety[,] and welfare.” West
Virginia Code § 49-4-604(b)(6) permits circuit courts to terminate parental rights upon these
findings. Furthermore, this Court has 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). Accordingly, we 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 March
19, 2019, order is hereby affirmed.


                                                                                           Affirmed.



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ISSUED: January 17, 2020


CONCURRED IN BY:

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




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