                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


In re: E.S.-1
                                                                                        FILED
                                                                                    January 11, 2016
                                                                                   RORY L. PERRY II, CLERK
No. 15-0681 (Raleigh County 13-JA-152-H)                                         SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA



                                MEMORANDUM DECISION
        Petitioner Father E.S.-2, by counsel Benjamin N. Hatfield, appeals the Circuit Court of
Raleigh County’s May 27, 2015, order terminating his parental rights to five-year-old E.S.-1.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel William
P. Jones, filed its response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Matthew A. Victor, filed a response on behalf of the child also in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in (1) denying his
motion for a dispositional improvement period, and (2) terminating his parental rights to the
child.2

        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 2013, the DHHR filed an abuse and neglect petition alleging that petitioner
maintained unsanitary home conditions, such as dog feces throughout the house and the presence
of “an unidentifiable odor.” The DHHR also alleged that petitioner committed domestic violence
in the home and was aware that the child’s biological mother physically abused E.S.-1.3

        In November of 2013, the circuit court held an adjudicatory hearing during which
petitioner stipulated that he neglected the child as set forth in the petition. Based on petitioner’s
stipulations, the circuit court adjudicated him as an abusing parent. By order entered on

       1
       Because petitioner shares his initials with the child, we have distinguished them by using
numbers 1 and 2. We refer to the child as E.S.–1 and petitioner as E.S.–2.
       2
         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.
       3
           The biological mother voluntarily relinquished her parental rights.
                                                   1


December 11, 2013, the circuit court granted petitioner a post-adjudicatory improvement period.
The terms and conditions of the improvement period required petitioner to attend parenting, adult
life skills, and anger management classes. The circuit court also required petitioner to maintain
stable housing.

        Beginning in February of 2014, the circuit court held several hearings to review
petitioner’s progress during the post-adjudicatory improvement period. By order entered June 4,
2014, the circuit court granted petitioner a three-month extension of his post-adjudicatory
improvement period because his residence was destroyed by fire.

        In February and March of 2015, the circuit court held two dispositional hearings in this
matter. In those hearings, the circuit court heard evidence that petitioner appeared for his services
pursuant to the requirements of his improvement period, but that he failed to make sufficient
improvements. A service provider testified that while petitioner was present during services, he
failed to actively participate in services and displayed issues controlling his anger. According to
this service provider, petitioner left prescription bottles and plastic storage bins containing knives
within the child’s reach. Finally, this provider testified that petitioner terminated services after
two visits during his improvement period. A second service provider also testified that, while
petitioner exhibited some signs of improvement during the improvement period, he failed to
benefit from services. A Child Protective Services (“CPS”) worker also testified that petitioner
made “minimal” improvements during his improvement period. Petitioner testified on his own
behalf. Based on the evidence presented, the circuit court denied petitioner’s motion for a
dispositional improvement period and terminated his 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). Further, our case law is clear that
“in the context of abuse and neglect proceedings, the circuit court is the entity charged with
weighing the credibility of witnesses and rendering findings of fact.” In re Emily, 208 W.Va.
325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478,
525 S.E.2d 669 (1999)); see also Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d

                                                  2


531, 538 (1997) (stating that “[a] reviewing court cannot assess witness credibility through a
record. The trier of fact is uniquely situated to make such determinations and this Court is not in
a position to, and will not, second guess such determinations.”).

        On appeal, petitioner first assigns error to the circuit court’s denial of his motion for a
dispositional improvement period. We have long explained that circuit courts have discretion in
deciding whether to grant or deny a respondent parent’s motion for a dispositional improvement
period. West Virginia Code § 49-6-12(c)(2) provides that circuit courts may grant a dispositional
improvement period if “[t]he respondent demonstrates, by clear and convincing evidence, that
the respondent is likely to fully participate in the improvement period[.]” As used in West
Virginia Code § 49-6-12, the word “may” is a permissive term connoting discretion. Gebr.
Eickhoff Maschinenfabrik Und Eisengieberei mbH v. Starcher, 174 W.Va. 618, 626 n.12, 328
S.E.2d 492, 500 n.12 (1985) (stating that “[a]n elementary principle of statutory construction is
that the word ‘may’ is inherently permissive in nature and connotes discretion.” (citations
omitted)); Syl. Pt. 2, in part, In re Lacey P., 189 W.Va. 580, 433 S.E.2d 518 (1993) (stating that
“[i]t is within the court’s discretion to grant an improvement period within the applicable
statutory requirements; it is also within the court’s discretion to terminate the improvement
period . . . if the court is not satisfied that the [respondent parent] is making the necessary
progress.”).

        In this case, the record is clear that petitioner failed to demonstrate a substantial change in
circumstances since his initial improvement period and further failed to demonstrate that he was
likely to fully comply with a dispositional improvement period. While petitioner argues that he
substantially complied with the terms and conditions of his post-adjudicatory improvement
period, we disagree. As noted above, the circuit court heard testimony that while petitioner
attended his services, he failed to actively participate in those services and failed to make
sufficient improvements. Despite his having attended parenting and adult life skills classes, the
circuit court heard testimony that he continued to endanger the child by leaving prescription
bottles and containers of knives within the child’s reach. Similarly, a CPS worker testified that
petitioner made “minimal” improvements during his post-adjudicatory improvement period and
the subsequent extension. Petitioner also argues that he should have been granted a dispositional
improvement period because the circuit court already implemented a “transitional plan” to
reunify him with E.S.-1. Petitioner’s characterization of a “transitional plan” is misplaced. Here,
the record is devoid of any evidence that the DHHR implemented a “transition plan” to reunify
petitioner with E.S.-1. A review of the record reveals that the DHHR simply allowed petitioner
to exercise additional unsupervised visitation with E.S.-1 as part of his improvement period.
Although petitioner complied with many aspects of his initial improvement period, we find that
the circuit court did not abuse its discretion in denying his motion for a dispositional
improvement period given the circumstances of this case.

        As to petitioner’s argument that the circuit court erred in terminating his parental rights,
we find no error. As addressed above, the evidence established that petitioner failed to comply
with the DHHR’s services. Pursuant to West Virginia Code § 49-6-5(b)(3), there is no reasonable
likelihood the conditions of abuse or neglect can be substantially corrected when “[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

                                                  3


reduce or prevent the abuse or neglect of the child.” Moreover, we have held that “[i]n making
the final disposition in a child abuse and neglect proceeding, the level of a parent’s compliance
with the terms and conditions of an improvement period is just one factor to be considered. The
controlling standard that governs any dispositional decision remains the best interests of the
child.” Syl. Pt. 4, In re: B.H. and S.S., 233 W.Va. 57, 754 S.E.2d 743 (2014). Based on our
review of the record before us, we find that the circuit court was presented with sufficient
evidence to make this finding in regard to petitioner based upon the evidence outlined above.
Here, despite petitioner’s compliance with the terms of his improvement period, he failed to
implement those services and showed minimal if any improvement. Petitioner’s had more than a
year to correct the issues of abuse and neglect. Accordingly, we find no error in the circuit
court’s finding that there was no reasonable likelihood that petitioner could substantially correct
the conditions of abuse and neglect in the near future and that termination 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. As such, it was not error for the circuit court to
terminate petitioner’s parental rights.

       For the foregoing reasons, we find no error in the circuit court’s May 27, 2015, order, and
we hereby affirm the same.


                                                                                        Affirmed.

ISSUED: January 11, 2016


CONCURRED IN BY:

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




                                                4


