                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



In Re: H.W. & M.W.                                                                       FILED
                                                                                        March 12, 2013
No. 12-1200 (Taylor County 11-JA-18 & 19)                                           RORY L. PERRY II, CLERK
                                                                                  SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA


                                  MEMORANDUM DECISION

       Petitioner Father’s appeal, by counsel Justina D. Helmick, arises from the Circuit Court of
Taylor County, wherein his parental rights to M.W. and his custodial rights to H.W. were
terminated by order entered on September 13, 2012. The West Virginia Department of Health and
Human Resources (“DHHR”), by counsel Lee A. Niezgoda, has filed its response. The guardian
ad litem, Mary S. Nelson, has filed a response on behalf of the children and a supplemental
appendix.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On June 12, 2011, the DHHR filed a petition alleging neglect by the parents due to
substance abuse. Subsequently, both parents tested positive for controlled substances. Both
parents entered into a stipulated adjudication and were granted post-adjudicatory improvement
periods. However, the DHHR later moved to terminate petitioner’s parental rights. At disposition,
the circuit court declined to extend petitioner’s post-adjudicatory improvement period or to grant
a dispositional improvement period, and instead terminated petitioner’s parental rights.

         On appeal, petitioner alleges several assignments of error. First, petitioner alleges that it
was error to terminate his parental and custodial rights because he admitted to the allegations in
the petition, and also expressed a desire to remediate the findings of abuse and neglect and
continue to participate in services. Petitioner also alleges it was error to deny post-termination
visitation because of his close bond with the children and because the circuit court relied on
Respondent Mother’s actions to find that a no contact order was necessary. Lastly, petitioner
argues that the circuit court erred in either denying his motion to extend his post-adjudicatory
improvement period or in denying him a dispositional improvement period because he had
substantially complied with the terms of his post-adjudicatory improvement period and was
willing to participate in an additional improvement period.



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         Both the DHHR and the guardian ad litem respond in support of the circuit court’s
termination of petitioner’s parental rights. Respondents argue that petitioner failed to comply with
the terms of his improvement period by continuing to abuse drugs and failing to follow through
with substance abuse treatment. Further, respondents argue that petitioner presented no evidence
that he attempted to obtain services independently, as he claimed he did. Respondents also argue
that the circuit court considered the appropriate factors in determining that post-termination
visitation was not in the children’s best interest, and correctly extended the no contact order to
petitioner due to his continued relationship with Respondent Mother.

       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).

         Upon our review, the Court finds no error in the circuit court’s denial of petitioner’s
motion for an extension to his post-adjudicatory improvement period, in the termination of
petitioner’s parental and custodial rights, or in its order related to post-termination visitation.
First, the record shows that petitioner failed to substantially comply with the terms of his post­
adjudicatory improvement period, as evidenced by his continued drug use. As such, we find that
the evidence was sufficient to establish that petitioner failed to substantially comply with the
terms of his improvement period. Therefore, based on the foregoing and pursuant to West
Virginia Code § 49-6-12(g), it was not error to deny petitioner’s motion. Additionally, the
evidence was sufficient to support the denial of a dispositional improvement period.

        Second, the Court finds that the circuit court was presented with sufficient evidence upon
which to base its findings that there was no reasonable likelihood that the conditions of abuse and
neglect could be substantially corrected in the near future and that termination was necessary for
the children’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed
to terminate parental rights upon these findings.

        Third, in regard to post-termination visitation, the Court finds no error in the circuit
court’s rulings. We have previously held that, in ruling on post-termination visitation, “‘[t]he

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evidence must indicate that such visitation or continued contact would not be detrimental to the
child’s well being and would be in the child’s best interest.’ Syl. Pt. 5, In re Christina L., 194
W.Va. 446, 460 S.E.2d 692 (1995).” Syl. Pt. 11, in part, In re Daniel D., 211 W.Va. 79, 562
S.E.2d 147 (2002). Upon our review, we find that the record shows that such visitation would not
have been in the children’s best interest.

       For the foregoing reasons, we find no error in the decision of the circuit court, and the
termination of petitioner’s parental rights is hereby affirmed.


                                                                                        Affirmed.

ISSUED: March 12, 2013

CONCURRED IN BY:

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




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