                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


In Re: L.F.
                                                                                     FILED
                                                                                  August 31, 2015
                                                                                RORY L. PERRY II, CLERK
No. 15-0153 (Greenbrier County 14-JA-37)                                      SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA



                               MEMORANDUM DECISION
        Petitioner Father C.F., by counsel Joshua L. Edwards, appeals the Circuit Court of
Greenbrier County’s January 23, 2015, order terminating his parental rights to one-year-old L.F.
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L.
Evans, filed its response in support of the circuit court’s order. The guardian ad litem for the
child (“guardian”), Peter Sherman, filed a response also in support of the circuit court’s order.
Petitioner filed a reply. On appeal, petitioner alleges that the circuit court erred in terminating his
parental rights to the child without granting him a dispositional improvement period.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 July of 2014, the DHHR filed an abuse and neglect petition against petitioner, the
child’s biological father, alleging that he knew the child’s mother used methadone while
pregnant and without a valid prescription and that he permitted the child to be exposed to the
mother’s substance abuse. The petition further alleged that the child tested positive for
methadone at birth and required a morphine prescription to treat her withdrawal symptoms.

        In August of 2014, the circuit court held an adjudicatory hearing. Petitioner stipulated to
abusing and neglecting the child by allowing the child’s mother to use illegal substances in the
home that were harmful to the child. The circuit court accepted the stipulation and granted
petitioner a post-adjudicatory improvement period. That improvement period included
requirements that he fully participate with service providers in substance abuse assessments;
follow the recommendations of those assessments; remain drug free; and participate in random
drug and alcohol screenings.

       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


        In November of 2014, the circuit court held a review hearing on petitioner’s progress in
his improvement period. While petitioner requested an extension of his improvement period, the
circuit court found that he failed to substantially comply with the requirements of his
improvement period due to his continued substance abuse “and failure to exercise best efforts at
rehabilitation.” The circuit court found that, following the child’s removal from the home,
petitioner’s substance abuse had increased. However, the circuit court ordered the DHHR to
continue to provide him services until the dispositional hearing.

        The circuit court held two dispositional hearings in January of 2015. The circuit court
continued the first dispositional hearing because petitioner was, at the time of the hearing,
housed in a short-term, inpatient, detoxification program and his counsel expressed hope that
petitioner would soon enter a long-term treatment facility. At the second dispositional hearing,
petitioner claims he made an oral motion for a dispositional improvement period. He also
presented evidence that he was on a waiting list for one long-term, inpatient, substance abuse
treatment program and had requested several referrals for other such programs. However, the
circuit court found that, despite petitioner’s claims, he had relapsed just days following his
release from the detoxification program. Finding no reasonable likelihood that the conditions of
abuse and neglect could be substantially corrected in the near future and citing the child’s need
for continuity and stability, the circuit court terminated petitioner’s parental rights to the child.
This appeal followed.

       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 assigns error to the circuit court’s termination of his parental rights
to the child without granting him a dispositional improvement period. At the outset, we note that,
although petitioner claims he made an oral motion for a dispositional improvement period at the
second dispositional hearing in January of 2015, he fails to cite to the record to indicate where
and when he made such a motion. See W. Va. R. App. P. 10(c)(7) (requiring that briefs contain
an argument exhibiting clearly the points of fact and law presented and “contain appropriate and

                                                 2


specific citations to the record on appeal, including citations that pinpoint when and how the
issues in the assignments of error were presented to the lower tribunal.”). Further, petitioner
claims to have made his motion orally; however, West Virginia Code § 49-6-12(c)(1) requires
motions for improvement periods to be made “in writing.”

        However, even if the motion were properly made before the circuit court, we find no
error in the circuit court’s order terminating petitioner’s parental rights to the child. While
petitioner argues that he could have substantially corrected his substance abuse issues in the near
future, the record clearly demonstrates otherwise. Despite his participation in a short-term,
inpatient, detoxification program, petitioner relapsed almost immediately upon his release. As to
his contention that he could have completed a long-term, substance abuse treatment program,
there is no indication in the record on appeal that petitioner provided the circuit court with any
timeframe for his admission into, or completion of, such a program. Further, assuming he
completed such a program, he presented no evidence that the same would result in the substantial
correction of the conditions at issue. What is clear is that he failed to take appropriate action to
correct these issues in the many months between the child’s removal and his first dispositional
hearing. West Virginia Code § 49-6-5(a)(6) expressly provides for termination “upon a finding
that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially
corrected in the near future” and when necessary for the child’s welfare. While petitioner
contends in his reply brief that allowances are made in other areas of the law for failures in
overcoming drug addiction, these proceedings involve a young child who needs a stable
environment and continuity in caregivers.

        The record on appeal clearly support’s the circuit court’s findings that there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect in the near future and that termination of his parental rights was in the child’s best
interests. West Virginia Code § 49-6-5(b)(3) provides that a situation in which there is no
reasonable likelihood that the conditions of abuse or neglect can be substantially corrected
includes one in which

       [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[.]

Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental
rights upon such findings. We have also held as follows:

               “Termination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code,
       49–6–5 . . . may be employed without the use of intervening less restrictive
       alternatives when it is found that there is no reasonable likelihood under W.
       Va.Code, 49–6–5(b) . . . 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).

                                                 3


Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Based on the circumstances of
this case, we find no reversible error in the circuit court’s order terminating petitioner’s parental
rights to the child.

       For the foregoing reasons, we hereby affirm the circuit court’s January 23, 2015, order.


                                                                                          Affirmed.


ISSUED: August 31, 2015

CONCURRED IN BY:

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




                                                 4


