                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS
                                                                                        FILED
                                                                                      May 14, 2018
In re K.M., D.M., M.H. and R.M.                                                     EDYTHE NASH GAISER, CLERK

                                                                                    SUPREME COURT OF APPEALS

                                                                                        OF WEST VIRGINIA
 
No. 17-0687 (Barbour County 16-JA-31, 16-JA-36, 16-JA-37, and 16-JA-52)


                                                          MEMORANDUM DECISION
        Petitioner Father M.M., by counsel Franklin D. Cornette, appeals the Circuit Court of
Barbour County’s June 29, 2017, order terminating his parental rights to K.M. D.M., M.H. and
R.M.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”), Mary S. Nelson, filed a response on behalf of the children in support of the circuit
court’s order and a supplemental appendix. On appeal, petitioner argues that the circuit court
erred in denying his motion for an extension of his post-adjudicatory improvement period and in
terminating his parental rights instead of employing a less-restrictive alternative.

        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.

        On June 2, 2016, the DHHR filed a petition alleging abuse and neglect by petitioner
toward his four children. According to the DHHR, upon the filing of the initial petition,
petitioner was living in a camper, did not have an address, and was not the custodian of any of
the children, but did have regular contact with them. The investigation which resulted in the
filing of the petition stemmed from a referral that K.M.’s mother and her husband exposed the
children to domestic violence and abused drugs while caring for the children. The petition further
alleged a history of criminal activity, domestic violence, and anger issues in regard to petitioner.
On June 8, 2016, the circuit court held a preliminary hearing on the initial petition. Petitioner
failed to appear, despite having received actual notice of the hearing.2

                                                            
              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).
              2
                  Petitioner was represented by counsel at this hearing.


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        On August 8, 2016, the circuit court held an adjudicatory hearing. Petitioner admitted that
his domestic violence issues resulted in the abuse and neglect of his children. Petitioner denied
using drugs, admitted to using alcohol, but denied that he was an alcoholic. He was adjudicated
as an abusing parent and granted a post-adjudicatory improvement period, with a condition of
random drug screening. According to the guardian, immediately following the adjudicatory
hearing, petitioner tested positive for amphetamine, methamphetamine, and marijuana.
According to the guardian’s report filed with the circuit court in January of 2017, petitioner
tested positive for multiple substances in November of 2016, December of 2016, and January of
2017, and missed several drug screens each month.

        On February 10, 2017, the DHHR filed an amended petition that alleged that petitioner
tested positive for illegal drugs and abused prescription drugs on several occasions during the
proceedings. The amended petition further alleged that petitioner admitted to having a drug
problem and that his addiction seriously affected his ability to perform his duties as a parent.
Petitioner filed an answer to the amended petition and admitted to drug use and domestic
violence. On February 21, 2017, the circuit court held an adjudicatory hearing on the amended
petition. The circuit court found, among other things, that petitioner had a history of drug abuse
and that family resources were expended on drugs, rather than the minor children. The circuit
court granted petitioner’s motion for a post-adjudicatory improvement period.

        On May 25, 2017, the circuit court held a dispositional hearing. The circuit court
reviewed petitioner’s drug screen results and noted that they revealed that petitioner attempted to
adulterate one of the screens by using someone else’s urine on February 22, 2017. Also in
February of 2017, petitioner tested positive for marijuana. In March of 2017, April of 2017, and
May of 2017, petitioner continued to test positive for multiple substances including
amphetamines, marijuana, and methamphetamines. The circuit court noted that since his post-
adjudicatory improvement period began, petitioner had only tested negative for substances once.
Petitioner claimed to be surprised by the results of the drug screens and argued that the testing
may have been inaccurate due to the smoke he inhaled at work. Petitioner later admitted that the
screens discussed by the circuit court were in fact positive and that he had been using
methamphetamines. Petitioner argued that, although he had not attempted to enter a
rehabilitation program, he was willing to enter into a program. He further admitted that he had
been an addict for approximately ten years and that he was dishonest with the circuit court for
fear of losing his children as a result of his drug addiction. Petitioner moved for an extension of
his post-adjudicatory improvement period, which the circuit court denied. The guardian argued
against an extension of petitioner’s improvement period due to his inability to acknowledge the
extent of his drug addiction issues. The circuit court noted that petitioner’s dishonesty prevented
him from substantially progressing during his initial improvement period and, therefore,
petitioner would be unlikely to substantially participate in a further improvement period. The
circuit court also noted that permanency for the children needed to be established. Based on the
evidence, the circuit court found 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 children’s best interests. The circuit court ultimately terminated petitioner’s




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parental rights in its June 29, 2017, dispositional order.3 It is from this order that 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
              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, this Court
finds no error in the proceedings below.

       First, petitioner argues that the circuit court erred in denying his motion for an extension
of his post-adjudicatory improvement period. We find petitioner’s argument unpersuasive.
Pursuant to West Virginia Code § 49-4-610(6), a circuit court may extend an improvement
period when

              the court finds that the [parent] has substantially complied with the terms of the
              improvement period; that the continuation of the improvement period will not
              substantially impair the ability of the department to permanently place the child;
              and that the extension is otherwise consistent with the best interest of the child.

        On appeal, petitioner fails to take responsibility for his actions and attempts to place
blame on the other parents’ actions, arguing that their actions led to the filing of the petition and
ultimately the termination of his parental rights. He also places blame on the multidisciplinary
treatment team for not recommending immediate entry into a residential treatment program.
Further, although he argues that, prior to the dispositional hearing, he acquired appropriate
housing, attended classes, and participated in services, petitioner failed to substantially comply
with the terms of his post-adjudicatory improvement period because he continued to abuse drugs.
Petitioner’s drug tests showed that he tested positive for multiple substances throughout his post-
                                                            
              3
         According to the DHHR and the guardian,  K.M.’s mother’s parental rights were also
terminated. K.M. is placed in foster care and the permanency plan is adoption in the current
foster home. The mother of D.M., M.H. and R.M. voluntarily relinquished her parental rights.
Those three children reside in the home of their maternal grandmother and the permanency plan
is adoption therein. 


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adjudicatory improvement period, and he admitted that he had a substance abuse problem and
had a problem for at least ten years. Petitioner also failed to enter into a drug rehabilitation
facility. Therefore, an extension to petitioner’s post-adjudicatory improvement period would not
have been in the children’s best interests and permanency needed to be established, as noted by
the circuit court. Based on this evidence, we find no error in the circuit court’s denial of
petitioner’s motion for an extension of his post-adjudicatory improvement period.

        Alternatively, petitioner argues that he should have been granted a post-dispositional
improvement period. However, there is nothing in the record that indicates that petitioner moved
for a post-dispositional improvement period and, therefore, we will not address this argument.
“‘Our general rule is that nonjurisdictional questions . . . raised for the first time on appeal, will
not be considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d
688, 704 n. 20 (1999).” Noble v. W.Va. Dep’t of Motor Vehicles, 223 W.Va 818, 679 S.E.2d 650
(2009).

        Next, petitioner argues that the circuit court erred in terminating his parental rights
instead of employing a less-restrictive alternative. In support of this argument, he asserts that he
made admissions regarding his drug abuse issues and made improvements such as obtaining
appropriate housing. We find this argument to be meritless. 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. West Virginia Code
§ 49-4-604(c)(3) provides that no reasonable likelihood that the conditions of abuse or neglect
can be substantially corrected exists when “[t]he abusing parent . . . ha[s] not responded to or
followed through with a reasonable family case plan or other rehabilitative efforts[.]”

        Here, it is clear that there was no reasonable likelihood that petitioner could have
substantially corrected the conditions of abuse or neglect in the near future. Petitioner admitted
to his drug use and was granted a post-adjudicatory improvement period to address his addiction
issues. As discussed above, petitioner failed to comply with the terms and conditions of his post-
adjudicatory improvement period, continued to test positive for drugs throughout the
proceedings, and failed to enter into a drug rehabilitation program. Based on this evidence, the
circuit court found 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 children’s best interests, and we agree.

       Further, we have held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49-6-5 [now 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 W. Va.Code [§] 49-6-5(b) [now 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).



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Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). For these reasons, we find no
error in the circuit court’s termination of petitioner’s parental rights.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 29, 2017, dispositional order is hereby affirmed.


                                                                                      Affirmed.




ISSUED: May 14, 2018


CONCURRED IN BY:

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

 




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