                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                   FILED
In re: A.R.                                                                     April 12, 2016
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
No. 15-0607 (Ohio County 14-JA-56)                                                OF WEST VIRGINIA




                              MEMORANDUM DECISION

        Petitioner Father D.R., by counsel Justin M. Hershberger, appeals the Circuit Court of
Ohio County’s May 21, 2015, order terminating his parental rights to A.R. The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed its
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Joseph
Moses, filed a response on behalf of the child supporting the circuit court’s order. On appeal,
petitioner alleges that the circuit court erred in terminating his parental rights.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 alleging that petitioner and
his wife, the mother, abused A.R. According to the petition, petitioner and the mother were
regularly abusing drugs in the child’s presence. The DHHR alleged that petitioner’s sister and
her boyfriend, who resided in the same home as petitioner and the mother, abused drugs in their
child’s presence and in A.R.’s presence. The DHHR alleged that petitioner knew of their drug
abuse, allowed A.R.’s exposure to drug abuse, and allowed his sister and her boyfriend to
provide care for A.R. The DHHR alleged that petitioner and the mother repeatedly engaged in
domestic violence in A.R.’s presence. The DHHR further alleged that petitioner has bipolar
disorder which he failed to properly treat, and that petitioner’s sister took naked pictures of A.R.
and told her “not to tell anyone.” At the time of the petition’s filing, petitioner was incarcerated
for unrelated charges, but was represented by counsel.

       In August of 2014, the circuit court held a preliminary hearing. Petitioner was
incarcerated and did not appear. Later in August of 2014, the circuit court held an adjudicatory

       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.


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hearing. At the adjudicatory hearing, petitioner stipulated to his opiate addiction, smoking
marijuana, allowing inappropriate people to babysit A.R., that his sister took inappropriate
pictures of A.R., and his criminal history. He also stipulated that he needed anger management
and domestic violence “education.” Based on petitioner’s stipulations, the circuit court
adjudicated him an abusing parent.

        In September of 2014, the DHHR filed an amended petition alleging that during
petitioner’s supervised visits with A.R., he was “hostile to” the mother and appeared to be under
the influence of drugs or alcohol. The DHHR also alleged that petitioner missed a scheduled visit
due to drug use, was arrested for domestic violence against the mother, and also provided false
information to A.R.’s foster parent in order to gain access to her.

        In October of 2014, petitioner moved the circuit court for a post-adjudicatory
improvement period. The multidisciplinary team (“MDT”) had no objection to petitioner
receiving an improvement period and the circuit court granted his motion. One of the terms of
petitioner’s improvement period was that he must be granted a motion for modification of his
criminal sentence, pursuant to Rule 35 of the West Virginia Rules of Criminal Procedure.
Petitioner stipulated to the condition that he be released from incarceration by January of 2015,
to ensure that he have “time to complete the additional terms of his improvement period after his
release.” Subsequent to his motion for an improvement period, petitioner filed a motion to
modify his criminal sentence but the motion was not granted.

        In April of 2015, the DHHR filed a motion to terminate petitioner’s improvement period
because he failed to be released from incarceration by January of 2015. The circuit court held a
hearing to address the DHHR’s motion and dispositional hearing. At the hearing, petitioner
admitted to failing to fulfill all the terms of his improvement period. Additional evidence was
presented that petitioner continued to engage in domestic violence against the mother. Petitioner
requested a disposition pursuant to West Virginia Code § 49-6-5(a)(5). The circuit court denied
petitioner’s motion and terminated his parental rights by order dated May 21, 2015. The circuit
court found that petitioner “had not substantially corrected his issues of control and anger and his
violent tendencies had not been adequately improved or treated.” It also found that the DHHR
had proven by clear and convincing evidence that there “is no reasonable likelihood that the
conditions of abuse and neglect will be substantially corrected in the near future” and that
termination of petitioner’s parental rights is in A.R.’s best interests. It is from this order
petitioner appeals.

       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

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       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 terminating petitioner’s parental rights.

        West Virginia Code § 49-6-5(a)(6) expressly provides that the circuit courts are directed
to terminate parental rights upon findings that there is no reasonable likelihood that the
conditions of abuse and neglect can be substantially corrected in the near future and when
necessary for the child’s welfare. In discussing termination of parental rights, we have previously
held that “[t]hough constitutionally protected, the right of the natural parent to the custody of
minor children is not absolute and it may be limited or terminated by the State, as parens patriae,
if the parent is proved unfit to be entrusted with child care.” Syl. Pt. 1, In Re: Dejah Rose P., 216
W.Va. 514, 607 S.E.2d 843 (2004). In support of his appeal, petitioner argues that the crime for
which he was incarcerated was a nonviolent offense and that he “availed himself to all relevant
self-help classes while he was incarcerated.” Petitioner contends that this showed “a desire and
effort to correct the problems that led to the filing of the petition.” However, it is clear from the
record that several other conditions contributed to abuse of the child and that these conditions
persisted throughout the matter.

         On appeal, petitioner argues that the circuit court erred in terminating his parental rights
because he was willing to improve the conditions that led to the abuse and neglect. Pursuant to
West Virginia Code § 49-6-5(b)(3), a respondent parent’s failure to respond or follow through
with a reasonable family case plan or other rehabilitative efforts constitutes circumstances in
which there is no reasonable likelihood that the conditions of abuse or neglect can be
substantially corrected. Specifically, the circuit court found that petitioner failed to make any
substantial progress during his six-month post-adjudicatory improvement period. While
petitioner testified that he participated in relevant self-help classes while incarcerated, he did not
provide any proof of participation in those services, other than his own testimony. Petitioner
testified that he gained no insight into how his behaviors constituted domestic violence. The
circuit court found that petitioner’s “violent tendencies” had not been “adequately improved or
treated.” Further, petitioner continued his drug abuse after the case was initiated. It is also clear
from the record that during petitioner’s supervised visits with A.R., he was “hostile to” the
mother and appeared to be under the influence of drugs or alcohol. Petitioner missed a scheduled
visit with A.R. due to drug use, was arrested for domestic violence against the mother, and also
provided false information to A.R.’s foster parent in order to gain access to her. Petitioner also
admitted to failing to fulfill all the terms of his improvement period and continued to engage in
domestic violence against the mother. As such, we find no error in the circuit court’s ruling that
there was no reasonable likelihood that petitioner could substantially correct the conditions of
neglect in the near future.

        Petitioner argues that the circuit court should have granted his request for an alternate
disposition pursuant to West Virginia Code § 49-6-5(a)(5). However, the circuit court found that

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terminating petitioner’s parental rights was in A.R.’s best interests. In discussing the best
interests of the child, we have held that “‘[a]lthough parents have substantial rights that must be
protected, the primary goal in cases involving abuse and neglect, as in all family law matters,
must be the health and welfare of the children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479
S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W.Va. 44, 743 S.E .2d 352 (2013). See also
Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d 866, 872 (1989) (“[T]he best
interests of the child[ren] is the polar star by which decisions must be made which affect
children.”) (citations omitted). We have also held that, “‘courts are not required to exhaust every
speculative possibility of parental improvement . . . where it appears that the welfare of the child
will be seriously threatened . . . .’ Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114
(1980).” Syl. Pt. 4, in part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). In this case, the
DHHR caseworker testified that an alternate disposition pursuant to West Virginia Code § 49-6­
5(a)(5) would require that petitioner and the mother maintain contact and would put A.R. at
further risk for abuse since petitioner’s drug abuse and domestic violence issues had not been
resolved. Based on the evidence, the circuit court found that the petitioner’s requested alternative
disposition was contrary to A.R.’s best’s interests. Upon our careful review of the record on
appeal, we find no error in the circuit court’s ruling that termination was in the child’s best
interests to achieve permanency.

        Therefore, the circuit court did not err in terminating petitioner’s parental rights. Given
the facts of this case, there was no reasonable likelihood that petitioner could substantially
correct the conditions of abuse and neglect in the near future, and termination was necessary for
the child’s welfare and in the child’s best interests. Pursuant to West Virginia Code § 49-6­
5(a)(6), circuit courts are directed to terminate parental rights upon such findings.

       The circuit court’s May 21, 2015, order is hereby affirmed.


                                                                                           Affirmed.

ISSUED: April 12, 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




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