                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


In re S.L. and A.L.                                                                    FILED
                                                                                     April 6, 2020
No. 19-0795 (Tyler County 19-JA-1 and 19-JA-2)                                    EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA




                               MEMORANDUM DECISION


       Petitioner Father R.L., by counsel Michael B. Baum, appeals the Circuit Court of Tyler
County’s July 30, 2019, order terminating his parental rights to S.L. and A.L. 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”), David C.
White, 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 an 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 February of 2019, the DHHR filed a child abuse and neglect petition against petitioner
and the mother alleging that they were unable to provide a safe and healthy environment for their
children. Specifically, the DHHR alleged that law enforcement officers responded to the home in
which petitioner and the mother were staying due to reports of domestic battery. Upon arriving at
the home, officers observed the mother to have fingernail marks on her neck, a cut on her
cheekbone, and a contusion on her forehead. The mother informed the officers that petitioner had
caused the injuries when she attempted to leave with the child A.L. The mother reported that
petitioner grabbed her by the throat and smacked her head on the concrete floor. Petitioner denied
the mother’s story. Ultimately, both parents were arrested, and the mother’s purse was searched.

       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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The search revealed methamphetamine, marijuana, and drug paraphernalia. The mother admitted
to officers that petitioner purchased an “eight (8) ball of [m]ethamphetamine” and gave her one
bag of the substance. Petitioner was charged with domestic battery and distribution of
methamphetamine as a result of the investigation. Petitioner waived his preliminary hearing in the
abuse and neglect proceedings.

        The circuit court held an adjudicatory hearing on March 2, 2019. Petitioner failed to attend,
and his counsel moved the circuit court to continue the hearing. The circuit court granted the
motion and continued the hearing to April 2, 2019. Petitioner failed to appear at the rescheduled
adjudicatory hearing, and the circuit court continued the hearing to April 16, 2019. On that date,
petitioner once again failed to attend. The circuit court proceeded to hold the adjudicatory hearing
in petitioner’s absence, but petitioner was represented by counsel. Ultimately, the circuit court
adjudicated petitioner as an abusing parent based upon his domestic battery against the mother in
the presence of A.L. 2

         The DHHR filed a report in May of 2019, indicating that petitioner had failed to maintain
contact with the DHHR since March 5, 2019. The DHHR noted that petitioner had twice attempted
to contact his caseworker, but that the caseworker was unable to reach petitioner at the phone
number he provided. The DHHR further noted that petitioner had not submitted to any drug screens
or participated in any services offered. On June 4, 2019, the circuit court held a dispositional
hearing, which was continued upon petitioner’s motion to June 25, 2019. However, petitioner
failed to attend the rescheduled hearing, and his counsel requested to withdraw from the case based
on a breakdown in communication with petitioner. The circuit court granted counsel’s motion to
withdraw, appointed petitioner new counsel, and continued the hearing.

        On July 10, 2019, the circuit court held the final dispositional hearing. Petitioner was
present and represented by his recently-appointed counsel. The DHHR presented the testimony of
a caseworker, who testified that petitioner failed to attend any multidisciplinary team (“MDT”)
meetings, submit to any drug screens, participate in any services, visit with the children, maintain
contact with the DHHR, or attend several hearings. Petitioner testified that he attempted to contact
his caseworker several times, but was never able to get in touch with her. He stated that he was
willing to participate in any necessary services and noted that he attempted to find a drug screening
location and a parenting class on his own, but had been unsuccessful without the help of his
caseworker. Petitioner also blamed his failure to attend hearings on a lack of transportation and his
counsel’s failure to advise him of the hearing dates. However, petitioner conceded that he had not
participated in the case and acknowledged that he had spent the two weeks immediately prior to
the dispositional hearing back in jail for his failure to self-present to finish his sentence with regard
to the domestic battery charge. A police officer also testified that petitioner failed to self-report to
finish the sentence and that a capias was issued by the magistrate court.

       At the close of evidence, petitioner requested an improvement period. The circuit court
ultimately denied petitioner’s request for an improvement period and terminated his parental

        2
        Despite petitioner’s absences, the circuit court ordered at each hearing that he would be
permitted to exercise supervised visitation with the children if he could produce one negative drug
screen.

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rights. The circuit court noted that petitioner was informed at his preliminary hearing that “all he
needed to do to visit with his children was pass a drug screen.” However, nearly five months later,
petitioner had not taken a single drug screen to facilitate visits with his children. Further, the circuit
court found that petitioner made minimal attempts to contact the DHHR. The circuit court also
found that petitioner failed to appreciate the wrongfulness of his actions. Based on these facts, the
circuit court concluded that petitioner was not likely to fully participate in an improvement period
and further found 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
children’s welfare. Petitioner appeals the July 30, 2019, dispositional order. 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 argues that the circuit court erred in denying him an improvement
period. According to petitioner, he was not given enough time to address the conditions of abuse
and neglect. Petitioner avers that he was dealing with the loss of a home and transportation during
the proceedings and argues that the DHHR erroneously requested the termination of his parental
rights before he could correct the conditions of abuse and neglect. He further contends that it would
have been in the children’s best interests to grant him an improvement period. We disagree.

        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 . .
. .”). We have also held that a parent’s “entitlement to an improvement period is conditioned upon
the ability of the [parent] to demonstrate ‘by clear and convincing evidence that the respondent is


        3
        The mother successfully completed her improvement period, and legal custody of the
children was returned to her. The permanency plan for the children is to remain in the care of the
mother.


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likely to fully participate in the improvement period.’” In re Charity H., 215 W. Va. 208, 215, 599
S.E.2d 631, 638 (2004).

         Having reviewed the record, we find that the circuit court did not abuse its discretion in
denying petitioner’s request for an improvement period. Petitioner failed to attend several hearings
throughout the proceedings, despite the circuit court continuing both the adjudicatory hearing and
dispositional hearing for petitioner’s benefit. Petitioner also failed to attend MDT meetings,
maintain contact with the DHHR, attempt to initiate any services with the DHHR, or try to set up
visits with the children. While petitioner argues that he was dealing with transportation issues, the
record indicates that petitioner only attempted to contact his caseworker two times during the
proceedings and never mentioned issues with transportation in the voicemails he left. Additionally,
petitioner was instructed at the beginning of the proceedings that he could participate in supervised
visitation if he submitted a single negative drug screen. However, petitioner did not submit to any
drug screens between his release from jail in early March of 2019 and his subsequent arrest two
weeks prior to the dispositional hearing in July of 2019 and, therefore, did not visit his children
during the entirety of the proceedings. “We have previously pointed out that the level of interest
demonstrated by a parent in visiting his or her children while they are out of the parent’s custody
is a significant factor in determining the parent’s potential to improve sufficiently and achieve
minimum standards to parent the child.” In re Katie S., 198 W. Va. at 90 n.14, 479 S.E.2d at 600
n.14 (citing Tiffany Marie S., 196 W. Va. at 228 and 237, 470 S.E.2d at 182 and 191; State ex rel.
Amy M. v. Kaufman, 196 W. Va. 251, 259, 470 S.E.2d 205, 213 (1996)). Given petitioner’s
complete lack of compliance during the proceedings, we find no error in the circuit court’s decision
to deny him an improvement period.

        Petitioner also argues that the circuit court erred in terminating his parental rights without
first employing a less-restrictive alternative. According to petitioner, the children were in a stable
environment with their aunt and uncle while the mother continued in her improvement period. As
such, petitioner contends that the children’s permanency would not have been disrupted by
granting him a disposition, such as one under West Virginia Code § 49-4-604(b)(5), which would
have allowed him to “petition the [circuit c]ourt for custody of the minor children once the issues
have been rectified.” 4 Having reviewed the record, we find that petitioner is entitled to no relief in
this regard.

        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. According to West Virginia Code § 49-4-604(c), “[n]o reasonable likelihood that the
conditions of neglect or abuse can be substantially corrected” means that “the abusing adult or



4
    West Virginia Code § 49-4-604(b)(5) provides, in part, that

         [u]pon a finding that the abusing parent [is] presently unwilling or unable to provide
         adequately for the child’s needs, commit the child temporarily to the care, custody,
         and control of the state department, a licensed private child welfare agency, or a
         suitable person who may be appointed guardian by the court.
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adults have demonstrated an inadequate capacity to solve the problems of abuse or neglect on their
own or with help.”

        The evidence set forth above also establishes that petitioner demonstrated an inadequate
capacity to solve the problems of abuse and/or neglect on his own or with help. Following his
incarceration and subsequent release, petitioner refused to comply with any DHHR directives,
including submitting to drug screens. Even though petitioner was informed he needed to submit
only one negative sample in order to visit with the children, he never submitted to any screens.
Further, petitioner failed to maintain contact with the DHHR or provide a reliable phone number
at which he could be contacted. Petitioner failed to attend several hearings and MDT meetings, but
never informed the DHHR of any transportation issues. Moreover, petitioner failed to comply with
the terms of his plea agreement regarding his related criminal charges and was re-incarcerated for
approximately fourteen days prior to the final dispositional hearing. Ultimately, testimony
established that petitioner failed to demonstrate that he had adequately addressed the conditions of
abuse and neglect.

        To the extent that petitioner claims he should have been granted a less-restrictive
alternative to the termination of his parental rights, 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). Although petitioner claims
granting him disposition pursuant to West Virginia Code § 49-4-604(b)(5) would not have
disrupted the children’s permanency, we note that the evidence establishes that petitioner
demonstrated an inadequate capacity to solve the problems of abuse and/or neglect on his own or
with help. Given that the circuit court properly found that there was no reasonable likelihood that
petitioner could correct the conditions of abuse and/or neglect in the near future and the evidence
is clear that the children’s best interests necessitated termination, we find no error in the circuit
court’s decision to terminate petitioner’s parental rights without employing a less-restrictive
alternative.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its July
30, 2019, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: April 6, 2020




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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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