                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS
                                                                                FILED
In re: B.P., D.P.-1, L.P., R.P., and D.P.-2                                   May 27, 2020
                                                                               released at 3:00 p.m.
No. 19-0342 (Nicholas County 18-JA-106, 107, 108, 109, 110)                EDYTHE NASH GAISER, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA


                             MEMORANDUM DECISION

      Petitioner W.P. appeals the March 4, 2019 order of the Circuit Court of Nicholas
County terminating his parental rights.1 Respondent, West Virginia Department of Health
and Human Resources (DHHR),2 and Guardian ad litem, Denise Pettijohn, Esq., filed
response briefs in support of the circuit court’s termination.

       Upon consideration of the standard of review, the parties’ briefs, oral arguments and
the record on appeal, the Court finds no substantial question of law or prejudicial error.
For these reasons, a memorandum decision affirming the circuit court’s decision is
appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure.

       In August 2018, the DHHR filed a child abuse and neglect petition against Petitioner
alleging that he had abandoned his five children, B.P., D.P.-1, L.P., R.P., and D.P.-2.3
Specifically, the petition alleged that Petitioner had not contacted the children in
approximately three years and had failed to provide them with financial support.4 In

       1
         Petitioner is represented by M. Tyler Mason, Esq. in this appeal. Consistent with
our long-standing practice in cases with sensitive facts, we use initials where necessary to
protect the identities of those involved. 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).
       2
         DHHR is represented by Patrick Morrisey, Attorney General, and Mindy M.
Parsley, Assistant Attorney General, in this appeal.

       The children ranged in age from seventeen to twelve. D.P.-1, the oldest child, has
       3

now reached the age of majority, and is no longer involved in this matter.

       4
        The petition also alleged that the children’s biological mother, E.P., had abused
and neglected the children because she had not financially supported or cared for them
since approximately September 2017. According to the record, the Petitioner and E.P.
were previously married, but separated in 2007 and later divorced. The petition
additionally alleged that E.P.’s sixth child, H.D., who is not Petitioner’s biological child,
had also been abused and neglected by E.P. Although E.P.’s parental rights to all six
children were also terminated in this case, she has not appealed. Because Petitioner is not
                                              1
response to the petition, Petitioner appeared in person with counsel, and waived his right
to a preliminary hearing. As such, the circuit court found that probable cause existed as to
the allegations in the petition and imminent danger existed as to the physical well-being of
the children.

        In September 2018, the circuit court held an adjudicatory hearing. According to the
court’s order, Petitioner admitted to his failure to contact and support the children, although
he refused to stipulate that he abandoned the children, as alleged in the petition. The court
found that Petitioner was competent to enter his admissions, understood the rights and the
procedures he was waiving, and intelligently, voluntarily, and knowingly waived those
rights, with the assistance of counsel. The circuit court also found that Petitioner was not
threatened, coerced, or promised anything in exchange for the stipulations made and
accepted them. The circuit court accepted Petitioner’s admissions and adjudicated him as
having abused and neglected the children due to a lack of contact and support. 5 At this
hearing, the DHHR opposed a post-adjudicatory improvement period for Petitioner. The
guardian ad litem withheld her position on the matter until she could review the children’s
Child Advocacy Center interviews.

       In October of 2018, the circuit court held a hearing on Petitioner’s motion for a post-
adjudicatory improvement period.6 The court denied Petitioner’s motion, and the matter

H.D.’s biological father, H.D. is not involved in this appeal.
       5
           Under West Virginia Code § 49-1-201 (2019), a “neglected child” means a child:

                (A) Whose physical or mental health is harmed or threatened
                by a present refusal, failure or inability of the child’s parent,
                guardian, or custodian to supply the child with necessary food,
                clothing, shelter, supervision, medical care, or education, when
                that refusal, failure, or inability is not due primarily to a lack
                of financial means on the part of the parent, guardian, or
                custodian;
                (B) Who is presently without necessary food, clothing, shelter,
                medical care, education, or supervision because of the
                disappearance or absence of the child’s parent or custodian; or
                (C) “Neglected child” does not mean a child whose education
                is conducted within the provisions of § 18-8-1 et seq. of this
                code.

(Emphasis added).
       6
        Although Petitioner’s request for an improvement period was discussed during this
hearing, the record does not contain any evidence that Petitioner filed a written motion
                                                2
was set for disposition. After two dispositional hearings scheduled in December 2018 were
continued at the request of the children’s mother, E.P., a dispositional hearing was held in
January 2019. At this hearing, the court heard testimony from Tim Meadows, a Child
Protective Services Worker, who testified that the children did not wish to have contact
with either parent due to the way they had been treated in the past. Mr. Meadows also
testified that the Petitioner did not have sufficient housing or income for the children, and
had reported he had no intention of making any effort to change that situation. The court
then continued the hearing to provide the children an opportunity to testify.

        At a continued hearing in February 2019, the court heard in camera testimony from
D.P.-1 and B.P. D.P.-1, who was seventeen at the time, testified that she last had contact
with Petitioner when she was thirteen or fourteen. She stated that following her parents’
divorce, she and her sisters would see Petitioner on the weekends, and they would have to
stay in a motel when visiting him. D.P.-1 reported that it had been approximately ten years
since she and Petitioner had lived in the same home. D.P.-1 described instances of violence
and abuse committed by the Petitioner, including an instance of alleged inappropriate
touching that was investigated by the DHHR.7 The circuit court also heard testimony from
B.P., who was sixteen at the time. She also described Petitioner as absent and abusive.
She stated, “He’s mentally abusive to us. We’re worth nothing. He told me he didn’t love
me anymore, that I wasn’t his kid.”

       The circuit court also heard testimony from the Petitioner, who testified that he last
saw his children in 2014, and that he was incarcerated between 2009 and 2011 and had no
contact with the children at that time. When asked why the children would have testified
that he was abusive, he stated that they had “been filled with lies from their mother and
grandmother and other people for the past several years.” Petitioner also testified that he
had a one-bedroom apartment and worked twenty to twenty-five hours a week, earning
approximately $700 a month. While he testified that he had made efforts to seek Social
Security disability benefits for his various medical impairments,8 Petitioner acknowledged
that he could not currently care for the children and had no estimate as to when he might
be able to care for them. E.P.’s hearing testimony corroborated the children’s allegations

requesting an improvement period. At this hearing, E.P. was adjudicated as having abused
and neglected the children, due to her abandonment of the children, excluding H.D., and
her neglect of the educational and medical needs of all the children. The unknown father
of H.D., J.N., was also identified at this hearing, and the court ordered him to submit to
paternity testing. J.N. later relinquished his parental rights in March of 2019.

       7
           According to the testimony of E.P., these charges were dismissed.

       Petitioner testified that he had a heart condition, seizures, bulging discs in his back,
       8

PTSD, and was borderline bipolar, with “paranoia and possible schizophrenia.”


                                               3
of abuse by the Petitioner and physical and verbal altercations that occurred between them
during their marriage. She testified that once they separated in 2007, Petitioner stopped
providing support for the children, and she was not granted any child support by the family
court because Petitioner was not working at that time. She also testified that since their
divorce, Petitioner did not provide any gifts to the children.9

       On March 4, 2019, the circuit court entered a dispositional order terminating
Petitioner’s parental rights.10 The circuit court found that the testimony of D.P.-1 and B.P.
was credible “based on the testimony itself, but also on [their] mood, mannerisms, and
mature attitude while testifying.” In contrast, although Petitioner had denied any abusive
behavior, the court did not find his testimony credible. The court also found that Petitioner
had resisted participation in the improvement period;11 that the children had consistently
maintained they wanted no contact with Petitioner and had no bond with Petitioner; that
Petitioner had participated in some services12 but refused to make any “meaningful
changes;” and that there were numerous unsuccessful attempts by the DHHR to contact the
Petitioner.13 So, the court determined that there was “no reasonable likelihood that the
conditions of abuse and neglect can be substantially corrected in the near future and the
children’s needs for continuity of care and caretakers is paramount, and a significant
amount of time may be required to be integrated into a stable and permanent home
environment.” The court found that it was in the best interests of the children to terminate
Petitioner’s parental rights.14 This appeal followed.

       9
         Although Petitioner now alleges, despite his admission to a lack of contact with
the children, that E.P. disappeared with the children and left him unable to contact them or
provide them any support, the record is clear that Petitioner never contacted the appropriate
authorities to determine the children’s whereabouts.
       10
            In this same order, the circuit court also terminated E.P.’s parental rights.

       11
         To the extent that the circuit court denied Petitioner’s request for an improvement
period, this finding does not comport with the record before us.
       12
            Petitioner was provided parenting and life skills services with Second Chances.
       13
         This particular finding also lacks support in the record on appeal. While the record
indicates that DHHR made numerous unsuccessful attempts to reach the mother, E.P., there
is nothing in the record demonstrating that DHHR had difficulty contacting Petitioner
during the pendency of this action.

       14
         D.P.-1 has reached the age of majority, and the guardian ad litem reported that she
has not been able to maintain contact with D.P.-1 since her emancipation. B.P. (now age
17), is currently placed with the foster family that adopted her brother, H.D. She is
scheduled to graduate high school in 2020, and her permanency plan is a guardianship.
L.P. (now age 16), R.P. (now age 15), and D.P.-2 (now age 14) are placed with a foster
                                                 4
       The Court reviews the circuit court’s order under the following standard:

                 “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).[15]

        Petitioner first asserts that the circuit court abused its discretion in failing to grant
his motion for a post-adjudicatory improvement period and in terminating his parental
rights. He argues that he admitted to the non-aggravated, neglectful behavior, expressed a
desire to fully participate in an improvement period, and participated in the services he was
offered throughout the case. He maintains that he proved by clear and convincing evidence
that he would meaningfully participate in an improvement period and that it was in the best
interest of the children that the court grant him an opportunity to successfully complete an
improvement period.

      West Virginia Code § 49-4-610(2)(A)(B) outlines the standard that applies to
consideration of a post-adjudicatory improvement period by a circuit court, and provides:

                        (2) Post-adjudicatory improvement period. -- After
                 finding that a child is an abused or neglected child pursuant to
                 section six hundred one of this article, a court may grant a
                 respondent an improvement period of a period not to exceed

family in Hico, West Virginia, and their permanency plan is adoption by that family. The
children have sibling visitation and remain in regular contact.
       15
            Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).


                                                 5
                 six months when:
                        (A) The respondent files a written motion requesting the
                 improvement period;
                        (B) The respondent demonstrates, by clear and
                 convincing evidence, that the respondent is likely to fully
                 participate in the improvement period and the court further
                 makes a finding, on the record, of the terms of the improvement
                 period[.]16

       This Court has held that “the granting of an improvement period is within the circuit
court’s discretion.”17 This Court has also held that a parent’s “entitlement to an
improvement period is conditioned upon the ability of the [parent] to demonstrate ‘by clear
and convincing evidence, that the [parent] is likely to fully participate in the improvement
period.’”18 So, the circuit court has discretion to deny an improvement period when no
improvement is likely.19 In sum, a circuit court may proceed to terminate parental rights
under West Virginia Code § 49-4-604 “without the use of intervening less restrictive
alternatives when it is found that there is no reasonable likelihood under [West Virginia
Code § 49-4-604(c)] . . . that conditions of neglect or abuse can be substantially
corrected.”20

        Here, the circuit court properly denied Petitioner’s motion for a post-adjudicatory
improvement period because he failed to demonstrate that he would make any immediately
discernable changes to correct the conditions of abuse and neglect that led to the filing of
the petition. While Petitioner claims that he had a genuine intent to participate in an
improvement period and that he participated in the services offered to him, Mr. Meadows
testified that Petitioner lived in a one-bedroom apartment and had a part-time job, and he
stated that he had no plans of changing those arrangements to provide for his five children.
Although Petitioner testified at his dispositional hearing that he had confirmed with his
property manager that he could obtain a bigger apartment if he received custody of his
daughters, and that he had also applied for Social Security disability benefits, he admitted
that he could not currently care for the children and had no estimate as to when he might
be able to care for them. The Petitioner also had no bond with the children due to his

       16
            Emphasis added.
       17
            In re Tonija M., 212 W. Va. 444, 448, 573 S.E.2d 354, 359 (2002).
       18
            In re Charity H., 215 W. Va. 208, 215, 599 S.E.2d 631, 638 (2004).
       19
            In re Tonija M., 212 W. Va. at 448, 573 S.E.2d at 359.

        Syl. Pt. 5, in part, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011)
       20

(quoting Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980)).

                                                6
extended absence in their lives, and the children testified in an in camera hearing that they
did not want to have any contact with him.21

       Petitioner takes issue with the circuit court’s consideration of D.P.-1 and B.P.’s
testimony regarding past physical abuse, arguing that if the court were concerned about his
alleged anger and the possibility of physical abuse, the terms of an improvement period
could have easily incorporated anger management counseling and battering intervention
and prevention program classes. But, the court’s consideration of this testimony was not
to establish that any physical abuse had occurred in an attempt to rectify that issue.22
Rather, given the girls’ ages, the court’s consideration of this testimony was proper under
West Virginia Code § 49-4-604(b)(6)(C) (2019), which provides that “the court shall give
consideration to the wishes of a child over fourteen years of age or older or otherwise of
an age of discretion as determined by the court regarding the permanent termination of
parental rights.” 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. . . .”23 We find that the circuit court properly considered
the best interests of the children in denying Petitioner a post-adjudicatory improvement
period.

       Next, Petitioner argues that the circuit court clearly erred in terminating his parental
rights on the basis that there was no reasonable likelihood that he could substantially
correct the conditions of abuse and neglect in the near future because it inaccurately
determined that he did not participate in services. Petitioner argues that the DHHR’s own
testimony showed that he consistently participated in services, and that his inability to
meaningfully participate by obtaining a larger home was due to his lack of income and
could have been remedied in the near future. Petitioner contends that the size of his home
was never the subject of his adjudication, and his inability to comply with his service
provider’s suggestion to move into a larger home was solely due to a lack of financial
means.

      While Petitioner cites to West Virginia Code § 49-1-201(a) to assert that termination
was improper because of his lack of financial means,24 his argument misses the point.

       21
         Additionally, there is no evidence in the record demonstrating that Petitioner filed
a written motion for a post-adjudicatory improvement period, as required by West Virginia
Code § 49-4-610(2)(A). See n. 6 supra.

       22
            As stated above, physical abuse was not alleged in the petition in this case.
       23
          Syl. Pt. 4, in part, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (quoting Syl. Pt.
1, in part, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)).
       24
            See footnote 5 supra.

                                                7
Petitioner’s lack of adequate housing was not the reason Petitioner was adjudicated as
neglectful. Rather, the circuit court found him to be neglectful due to his lack of contact,
or absence, in the children’s lives for three years prior to the initiation of this case, and he
admitted this fact prior to his adjudication.25 While the issue of adequate housing was
considered by the court during the dispositional phase of this case in efforts to achieve
permanency, rather than during the adjudicatory phase, the record is clear that Petitioner
was aware that he needed to obtain adequate housing but he failed to do so. West Virginia
Code § 49-4-604(b)(6) provides that circuit courts are permitted to terminate parental rights
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 that termination is necessary for the
children’s welfare.26 And, West Virginia Code § 49-4-604(c) (2019) provides that the
phrase “no reasonable likelihood that conditions of abuse and neglect can substantially be
corrected” means that “the abusing adult or adults have demonstrated an inadequate
capacity to solve the problems of abuse or neglect on their own or with help.”27 Here, the
record established that Petitioner demonstrated an inadequate capacity to provide the
children with adequate housing in the near future.

       The circuit court properly found that Petitioner was unwilling to make any
meaningful changes to his life to support his children emotionally or financially. While
the record reflects that Petitioner generally participated in the services provided to him,
Mr. Meadows testified that Petitioner failed to meaningfully participate because he
“reject[ed] any suggestions that the provider . . . offer[ed] to him to improve his situation.”
Mr. Meadows testified that in the four months since the adjudicatory hearing had taken
place, Petitioner had made no attempts to get a bigger apartment, did not have sufficient
income to be able to afford another apartment, and Petitioner had “stated that he didn’t
have any interest in . . . moving at that time.” And, although Petitioner testified at the
dispositional hearing that he had applied for Social Security disability benefits, he even
admitted that he could not estimate when he would be able to care for his children.

       Because the children in the case were nearing the age of majority, time was of the
essence for purposes of achieving permanency in this case. Given Petitioner’s
demonstrated inability to make meaningful changes to his life and to estimate when he
would be able to care for his teenage children, coupled with the court’s consideration of
the wishes of D.P.-1 and B.P. that they did not want to have a relationship with their father,

       25
         See W. Va. Code § 49-1-201(b) (2019) (defining a neglected child as one “[w]ho
is presently without necessary food, clothing, shelter, medical care, education, or
supervision because of the disappearance or absence of the child’s parent or custodian.”)
(emphasis added.)
      26
           Emphasis added.
      27
           Emphasis added.

                                               8
the circuit court did not clearly err in determining that there was no reasonable likelihood
Petitioner could substantially correct the conditions of abuse or neglect in the near future,
and that termination was necessary for the children’s welfare.

      For the foregoing reasons, we affirm the circuit court’s March 4, 2019 order
terminating the Petitioner’s parental rights.

                                                                                  Affirmed.




ISSUED: May 27, 2020


CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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