                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS

In Re: R.G.                                                                            FILED
                                                                                     March 16, 2015
No. 14-1070 (Mercer County 13-JA-56)                                              RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


                                 MEMORANDUM DECISION
        Petitioner, C.H., by counsel John Earl Williams Jr., appeals the Circuit Court of Mercer
County’s September 19, 2014, order terminating his custodial rights to R.G.1 The Department of
Health and Human Resources (“DHHR”), by counsel, S.L. Evans, filed a response in support of
the circuit court’s order. The guardian ad litem, Michael P. Cooke, filed a response on behalf of
the child also supporting the circuit court’s order. On appeal, petitioner argues that the circuit
court erred in denying his motion for a dispositional improvement period.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 May of 2013, the DHHR filed an abuse and neglect petition against the child’s
biological mother and petitioner, her live-in boyfriend, that alleged domestic violence in the
child’s presence, excessive corporal punishment by the child’s mother (striking the child with a
television cable that left bruising), drug use, failure to provide suitable housing due to a pending
eviction and lack of necessities such as bedding, and other allegations. In September of 2013,
petitioner stipulated that he was the child’s custodian,3 and both he and the child’s mother
stipulated to child neglect resulting from the domestic violence present in the home. The circuit
court granted petitioner and the child’s mother post-adjudicatory improvement periods. At a
review hearing in December of 2013, the DHHR reported that petitioner tested positive for
illegal substances on all of his drug screens.4 As a result, the circuit court ordered petitioner to

       1
         Although the proceedings below and the order subject to this appeal concerned the
parental and custodial rights of three adults to two children, petitioner appeals only the circuit
court’s order with regards to his custodial rights to R.G.
       2
       Petitioner’s counsel filed his brief pursuant to the United States Supreme Court of
Appeals’ decision in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).
       3
           Petitioner did not contest this classification below or on appeal.
       4
         The record on appeal does not specify the illegal substances at issue on these drug
screens, and the parties failed to include the transcripts of the hearing held in December of 2013

                                                    1
attend long-term, in-patient substance abuse treatment. Although it is uncontested that petitioner
applied for and received a bed in an adequate substance abuse treatment program, prior to
beginning that program, petitioner was arrested in February of 2014 on charges out of McDowell
County of burglary and conspiracy to commit a felony. Petitioner was on probation in McDowell
County at the time of his arrest, and the arrest prompted its revocation. Petitioner remained
incarcerated throughout the remainder of these proceedings below.5

        In June of 2014, the circuit court held a review hearing to consider the parties’ progress.
As petitioner remained incarcerated, and expected to be incarcerated for at least another year, the
circuit court set the matter for a dispositional hearing as to petitioner.

        In September of 2014, the circuit court held a dispositional hearing. Although petitioner
remained incarcerated, he and the child’s mother expressed their desire to continue their
relationship. Petitioner also moved, orally, for a dispositional improvement period. The circuit
court denied his motion and found that there was no reasonable likelihood that the conditions of
abuse and neglect could substantially change in the near future and termination was necessary for
the child’s welfare. Therefore, the circuit court terminated petitioner’s custodial rights to the
child. This appeal followed.

       This 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).



in the record on appeal. The DHHR states in its response brief to this Court that petitioner
admitted to cocaine use.
       5
         Although it does not appear in the record on appeal, petitioner states in his brief to this
Court that in November of 2014 the Circuit Court of McDowell County sentenced him to one to
ten years of incarceration for daytime entering without breaking. Further, he states that there are
charges pending against him in the State of Mississippi, but he does not elaborate on the nature
of those charges.

                                                 2
        On appeal, petitioner argues that the circuit court erred in denying his motion for a
dispositional improvement period. At the outset, we note that petitioner fails to cite in the record
where he made a written motion for a dispositional improvement period before the circuit court.
West Virginia Code § 49–6–12(c)(1) requires motions for improvement periods to be made “in
writing.” However, even if the motion were properly made before the circuit court, we find no
error. Although petitioner argues that he and the child’s mother desired additional time for him to
seek improvement, it is unclear from the record when petitioner may be released from
incarceration. Further, even if released, petitioner ignores the fact that West Virginia Code § 49­
6-12(c)(2) requires that, in order to obtain a dispositional improvement period, he must
“demonstrate[ ], by clear and convincing evidence, that [he] is likely to fully participate in the
improvement period . . . .” Here, the record is clear that petitioner could not satisfy this burden.
To the contrary, during his post-adjudicatory improvement period, petitioner failed multiple drug
screens; committed the felony offense of daytime entering without breaking, which resulted in
his incarceration; and failed to comply with the terms of his probation in McDowell County. For
these reasons, the circuit court did not err in finding that petitioner was not likely to fully
participate in the improvement period and that there was no reasonable likelihood that he could
substantially correct the conditions of abuse and neglect in the near future.

        Based upon our review of the record, we find no error in the circuit court’s termination of
petitioner’s custodial 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, custodial,
and guardianship rights and responsibilities upon such findings.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: March 16, 2015

CONCURRED IN BY:

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




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