                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS         FILED
                                                                                November 21, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
In re C.J., X.J., and J.J.-1                                                         OF WEST VIRGINIA 


No. 18-0560 (Harrison County 17-JA-102-1, 17-JA-103-1, and 17-JA-104-1)


                                                          MEMORANDUM DECISION
        Petitioner Father J.J.-2, by counsel Allison S. McClure, appeals the Circuit Court of
Harrison County’s May 24, 2018, order terminating his parental rights to C.J., X.J., and J.J.-1.1
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”), Jenna L. Robey, filed a response on behalf of the children also in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying him a
post-adjudicatory improvement period and in terminating his parental rights when less-restrictive
alternatives were available.

        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 2017, the DHHR filed a child abuse and neglect petition against petitioner and
the mother after J.J.-1 tested positive for amphetamine and methamphetamine at birth. The
DHHR alleged that petitioner was recently incarcerated upon a conviction of possession with
intent to deliver heroin. The circuit court originally sentenced petitioner to the Anthony Center,
but he was discharged for stealing, trading and selling property, creating a disturbance, and
fighting. The DHHR further alleged that petitioner had a significant criminal history including
convictions for domestic battery, disorderly conduct, shoplifting, destruction of property, petit
larceny, and breaking and entering of an automobile. Based on these facts, the DHHR concluded
that petitioner demonstrated a settled purpose to forego his parental duties and responsibilities.

                                                            
              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). Additionally, because one of the children and petitioner
share the same initials, we will refer to them as J.J.-1 and J.J.-2, respectively, throughout this
memorandum decision.


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        In February of 2018, petitioner stipulated to the allegations of abuse and neglect
contained in the petition. The circuit court accepted petitioner’s stipulation and adjudicated him
as an abusing parent.

        The circuit court held a dispositional hearing in March of 2018, wherein it heard evidence
on petitioner’s motion for a post-adjudicatory improvement period and the DHHR’s motion to
terminate parental rights. Petitioner testified that he remained incarcerated at the time of the
hearing, but had been participating in services within the prison including substance abuse,
parenting, and victim awareness classes, and had obtained a GED and an OSHA card. Further, he
stated that he would comply with any terms and conditions of an improvement period, should
one be granted. However, petitioner did not accept responsibility for his actions, stating that his
parental rights should not be terminated because he “didn’t really do nothing [sic] to get [the
children] taken. . . . So I don’t think my rights should be taken for – I don’t think I should be
punished for something that [the mother did].” Petitioner admitted that even prior to his
incarceration in December of 2016, he did not primarily care for the children and left them in his
parents’ care. Further, his impending release on parole was contingent on his successful
completion of a substance abuse program. Should he not complete the program, petitioner’s
anticipated release date was January 24, 2024.

        Thereafter, a Child Protective Services (“CPS”) worker testified and recommended
termination of petitioner’s parental rights to the children based upon his lack of a bond with the
children and the need for permanency. The CPS worker testified that the children did not ask
about petitioner and regarded the foster parents as their parents. The CPS worker did not believe
that the classes petitioner completed while imprisoned were sufficient to address the DHHR’s
concerns or that there was a reasonable likelihood the situation could be resolved in a timely
manner. After hearing evidence, the circuit court denied petitioner’s request for an improvement
period and terminated his parental rights to the children, finding that there was no evidence that
petitioner had a bond with the children, he failed to take responsibility for his actions, and his
release on parole was uncertain. As such, the circuit court concluded that there was no
reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near
future and that termination was necessary for the children’s welfare. It is from the May 24, 2018,
dispositional order that petitioner appeals.2

              The Court has previously established the following standard of review in cases such as
this:

                     “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

                                                            
              2
         Both parents’ parental rights were terminated below. The children were placed in a
foster home with a permanency plan of adoption therein.
                                                               2
 
       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 argues that the circuit court erred in denying him a post-
adjudicatory improvement period. Specifically, petitioner argues that he presented evidence
demonstrating that he was participating in substance abuse treatment and other classes in prison
and, thus, was likely to participate in an improvement period. We disagree.

        The decision to grant or deny an improvement period rests in the sound discretion of the
circuit court. See In re M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia
law allows the circuit court discretion in deciding whether to grant a parent an improvement
period.”); Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (“[i]t is within
the court’s discretion to grant an improvement period within the applicable statutory
requirements.”). We have also held that a parent’s “entitlement to an improvement period is
conditioned upon the ability of the respondent to demonstrate ‘by clear and convincing evidence,
that the respondent is likely to fully participate in the improvement period. . . .’” In re Charity
H., 215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004).

        Here, petitioner failed to demonstrate that he was likely to fully participate in an
improvement period. While the record establishes that petitioner participated in services
provided by the prison during his incarceration, the CPS worker testified that the classes had no
bearing on this matter as they failed to demonstrate that petitioner could make appropriate
decisions outside of prison. Petitioner remained incarcerated at the time of the dispositional
hearing and was unable to meaningfully participate in an improvement period. Further, despite
participating in services while incarcerated, petitioner failed to acknowledge the conditions of
abuse, testified that he had not abused the children, and placed blame solely on the mother. We
have previously held that

       [i]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
       of the basic allegation pertaining to the alleged abuse and neglect or the
       perpetrator of said abuse and neglect, results in making the problem untreatable
       and in making an improvement period an exercise in futility at the child’s
       expense.

In re Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting Charity H., 215 W.Va.
at 217, 599 S.E.2d at 640). As such, even had petitioner been able to participate in an
improvement period, his failure to acknowledge how his actions constituted abusive and
neglectful behavior rendered an improvement period futile. Accordingly, we find that petitioner
is entitled to no relief in this regard.


                                                 3
 
        Petitioner next argues that the circuit court erred in terminating his parental rights when
less-restrictive alternatives were available. According to petitioner, the basis for his
incarceration, possession with intent to deliver, did not directly involve the children and he
eventually completed a substance abuse program. Further, petitioner avers that he was released
on parole two months after the dispositional hearing. As such, petitioner argues that the circuit
court wrongfully found that there was no reasonable likelihood that he could correct the
conditions of abuse in the near future and that termination was necessary for the children’s
welfare. We find no merit in petitioner’s argument.

       Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate
parental rights upon findings that there is no reasonable likelihood the conditions of abuse and
neglect can be substantially corrected in the near future and when necessary for the children’s
welfare. West Virginia Code § 49-4-604(c)(3) sets forth 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 . . . ha[s] not responded to or followed through with
a reasonable family case plan or other rehabilitative efforts[.]”

       The record demonstrates that there was no reasonable likelihood that petitioner could
correct the conditions of abuse and neglect in the near future due to his inability to follow
through with a family case plan. At the time of the dispositional hearing, petitioner remained
incarcerated with an anticipated release date of January of 2024. While petitioner would
potentially become eligible for parole, his release was contingent upon his successful completion
of a drug abuse program and, as such, was uncertain. Petitioner himself acknowledges that this
Court has 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, and this is particularly applicable to children under the age of three
       years who are more susceptible to illness, need consistent close interaction with
       fully committed adults, and are likely to have their emotional and physical
       development retarded by numerous placements.” Syl. Pt. 1, in part, In re R.J.M.,
       164 W.Va. 496, 266 S.E.2d 114 (1980).

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4. Here, petitioner remained incarcerated
and unable to follow through with an improvement period specifically designed to reduce or
prevent the conditions of abuse and neglect. Further, due to his incarceration in December of
2016, petitioner had not seen his two oldest children for nearly two years. Petitioner’s third child
was born after his incarceration and he has not even met the child. As such, no bond existed and
the children did not refer to or ask for petitioner. In fact, testimony established that the children
had a strong bond with their foster parents and regarded them as their parents.

       While petitioner argues that his potential release on parole provided him the opportunity
to address the conditions of abuse and develop a bond with the children, the circuit court was not
required to exhaust this speculative possibility of parental improvement, especially in light of the



                                                 4
 
children’s tender ages. To the extent that petitioner argues he should have been granted a less-
restrictive alternative to termination of his parental rights, 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).

Syl. Pt. 5, in part, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Accordingly, the circuit
court was within its discretion in declining to employ a less-restrictive alternative to termination
of petitioner’s parental rights and we find that he is entitled to no relief in this regard.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 24, 2018, order is hereby affirmed.



                                                                                          Affirmed.

ISSUED: November 21, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment

 




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