                               STATE OF WEST VIRGINIA
                             SUPREME COURT OF APPEALS


In re F.T.-T. and A.T.-T.                                                              FILED
                                                                                     April 6, 2020
No. 19-0768 (Kanawha County 19-JA-310 and 19-JA-311)                              EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA




                                MEMORANDUM DECISION


        Petitioner Father J.T., by counsel Michael M. Cary, appeals the Circuit Court of Kanawha
County’s August 9, 2019, order terminating his parental rights to F.T.-T. and A.T.-T. 1 The West
Virginia 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 (“guardian”), Jennifer R.
Victor, filed a response on behalf of the children in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred by not affording him a meaningful 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 2019, the DHHR filed a child abuse and neglect petition alleging that the mother
and newborn twins, F.T.-T. and A.T.-T., tested positive for methamphetamine at the time of birth.
The DHHR alleged that petitioner was the father of the children and that his parental rights to other
children had been previously terminated in 2018. Petitioner admitted to the prior termination of
his parental rights due to domestic violence and alcohol abuse, but asserted that those issues were
remedied. Later, the circuit court held a preliminary hearing and found that, due to the mother’s
drug use, the children were in imminent danger if returned to her care.


       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 does not challenge the termination of his parental rights on appeal.
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        The circuit court held an adjudicatory hearing in June of 2019, and heard the evidence to
support the allegations in the petition. The circuit court found that petitioner committed domestic
violence against the mother “by attacking, beating, and strangling” her when she was seven-to-
eight months pregnant. Petitioner also admitted to having an alcohol abuse problem. The circuit
court concluded that petitioner failed to improve or correct the conditions of abuse or neglect that
led to the prior termination of his parental rights. The circuit court adjudicated petitioner as an
abusing parent of F.T.-T. and A.T.-T., and adjudicated those children as abused children.

        In August of 2019, the circuit court held a dispositional hearing. The DHHR and guardian
moved to terminate petitioner’s parental rights. The circuit court considered testimony of a DHHR
worker, the mother, and petitioner and took judicial notice of the evidence taken in petitioner’s
prior abuse and neglect proceeding. The court found that petitioner was provided remedial services
during the prior case, but failed to adequately participate in or benefit from those services. The
circuit court further found that petitioner failed to improve his circumstances since the prior
proceeding in that he “committed repeated acts of domestic violence” against the mother and
continued to habitually abuse alcohol or controlled substances. The court noted petitioner produced
a drug screen positive for marijuana during the proceedings. Ultimately, the circuit court concluded
that there was no reasonable likelihood that the conditions of abuse and neglect could be corrected
in the near future because petitioner demonstrated an inadequate capacity to remedy the conditions
on his own or with help. Further, the circuit court found that reunification was not in the children’s
best interests because their safety could not be assured. Accordingly, the circuit court terminated
petitioner’s parental rights and denied any post-termination visitation by its August 9, 2019, order. 3

       The Court has previously held:

               “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 review, this Court finds no
error in the proceedings below.




       3
       The mother’s parental rights were also terminated below. According to the parties, the
permanency plan for the children is adoption in their current foster placement.


                                                  2
       On appeal, petitioner argues that the circuit court erred by not affording him a meaningful
improvement period. Petitioner asserts that, due to the aggravated circumstances of his prior
termination, the DHHR failed to provide him with any services. Therefore, petitioner argues that
he was not afforded the opportunity to demonstrate that he could provide for his infant children.
We find no merit to this argument.

        Pursuant to West Virginia Code § 49-4-604(b)(7)(C), the DHHR was not “required to make
reasonable efforts to preserve the family” because “the parental rights of [petitioner] to another
child [had] been terminated involuntarily.” Therefore, the DHHR was justified in not affording
petitioner services throughout the proceedings. However, petitioner’s prior termination of his
parental rights was not dispositive as to an improvement period. West Virginia Code § 49-4-
610(2)(B) provides that the circuit court may grant a parent a post-adjudicatory improvement
period when the parent “demonstrates, by clear and convincing evidence, that the [parent] is likely
to fully participate in the improvement period.” We have noted that “West Virginia law allows the
circuit court discretion in deciding whether to grant a parent an improvement period.” In re M.M.,
236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015). “Additionally, if a parent is unable to
demonstrate an ability to correct the underlying conditions of abuse and/or neglect in the near
future, termination of parental rights may proceed without the utilization of an improvement
period.” In re Charity H., 215 W. Va. 208, 216, 599 S.E.2d 631, 639 (2004).

         Although petitioner acknowledges the procedures set forth in West Virginia Code § 49-4-
610, he ignores his burden to demonstrate, by clear and convincing evidence, that he would fully
participate in an improvement period. He cites to no evidence in the record to support his argument
that an improvement period was warranted or that the circuit court abused its discretion in denying
him one. Moreover, petitioner does not cite to the record to show that he filed “a written motion
requesting the improvement period,” which is a requirement of West Virginia Code § 49-4-
610(2)(A). Rather, the record reflects the circuit court’s unchallenged findings that petitioner was
previously offered services and failed to participate in or benefit from those services. This evidence
is sufficient to deny petitioner’s motion for an improvement period, if it was, in fact, requested. In
light of this uncontradicted evidence, we find no error in the proceedings below.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 9, 2019, order is hereby affirmed.

                                                                                           Affirmed.

ISSUED: April 6, 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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