                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS

In Re: G.J.                                                                        FILED
                                                                                January 17, 2014
                                                                             RORY L. PERRY II, CLERK
No. 13-0566 and 13-0771 (Kanawha County 12-JA-78)                          SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA



                                  MEMORANDUM DECISION

        Petitioner Mother, by counsel Edward L. Bullman, and Petitioner Father, by counsel Tim
C. Carrico, jointly appeal from the Circuit Court of Kanawha County’s order entered on July 19,
2013. The guardian ad litem for the child, Jennifer R. Victor, filed a response in support of the
circuit court’s order. The Department of Health and Human Resources (“DHHR”), by its
attorney Michael L. Jackson, has also filed a response in support of the circuit court’s order.
Petitioners appeal the circuit court’s order denying them improvement periods and terminating
their parental rights to G.J. after another of their children drowned in a bathtub.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On March 15, 2012, Petitioner Father returned home from work to K.J., his one year-old
son, dead in the bathtub and Petitioner Mother asleep in bed. Earlier that day, just before
Petitioner Father left for work, Petitioner Mother told him that she was “going to the bathroom to
do my thing,” which she said meant that she was going to use methamphetamine. When the
police arrived, they found drug paraphernalia, including needles and spoons with drug residue in
petitioners’ bedroom, the room they shared with K.J. Petitioner Mother was reluctant to allow
police to search her purse, but her relative emptied the contents in front of a DHHR worker;
inside were more spoons with what appeared to be drug residue, razor blades, a mirror with what
appeared to be drug residue, and other drug paraphernalia. In addition to K.J., another child, G.J.,
lives with them. A week prior to this incident, a social worker found Petitioner Mother passed
out and unresponsive on her couch1 and, on a separate occasion that week, Petitioner Mother
called an ambulance because Petitioner Father was unresponsive and had blue lips.

        On March 20, 2012, the DHHR filed a petition for abuse and neglect based upon K.J.’s
drowning death in petitioners’ bathtub. The petition alleged that Petitioner Mother’s explanation
of K.J.’s death did not comport with the child’s capabilities that had been documented to that
point, since K.J. had never before climbed out of his crib, drawn a bath, or climbed into a
bathtub. The petition further alleged that Petitioner Mother disclosed that Petitioner Father

1
    By the time the police arrived, Petitioner Mother had awakened so no charges were filed.

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provided her with the controlled substances methamphetamine and Percocet. Finally, the petition
alleged that petitioners failed to provide G.J. with the necessary food, clothing, supervision, and
housing; that they were not sufficiently motivated and organized to provide for the needs of the
child; and that the parents’ conduct constituted extreme maltreatment and negligent treatment.
Petitioner Father waived his right to a preliminary hearing, and the circuit court found probable
cause for removing the children from the mother’s custody at her preliminary hearing. In
October of 2012, following several adjudicatory hearings, the circuit court found that G.J. was an
abused child, based upon petitioners’ use of illicit drugs that negatively affected their parenting
ability and resulted in K.J.’s death.2 By order entered June 24, 2013, the circuit court terminated
petitioners’ parental rights to G.J. In that order, the circuit court found that petitioner’s
negligence caused K.J.’s death, that the DHHR provided remedial and reunification services to
petitioners, that petitioners failed to demonstrate they were likely to comply with the terms and
conditions of an improvement period, and that petitioners had not responded to services provided
to them. The circuit court further found that the DHHR made reasonable efforts to preserve the
family or some portion thereof, but that there was no reasonable likelihood that the conditions of
child abuse and neglect can be corrected substantially in the near future and continuation in
petitioners’ home was not in G.J.’s best interest. 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).

        On appeal, petitioners argue two assignments of error. First, petitioners argue that there
was insufficient factual support to connect K.J.’s death with their actions. They argue that the
child’s death “could occur in any home with a tired mother[,] an active and curious toddler[,] and
running water.” A neglected child is one

       [w]hose 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
2
 In addition to G.J., petitioners have another child who is no longer under eighteen years of age
and is no longer subject to the proceedings at issue here. Throughout the proceedings, petitioners
were unable or unwilling to tell the DHHR where that child was located.

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       with necessary food, clothing, shelter, supervision, medical care or education,
       when such refusal, failure or inability is not due primarily to a lack of financial
       means on the part of the parent, guardian or custodian.

W.Va. Code § 49-1-3(11)(A)(i). Here, the record shows that petitioners have a history of drug
abuse, as well as the inability to wake themselves while under the influence. Additionally,
Petitioner Father left K.J. with Petitioner Mother when he knew that she was going to use
methamphetamines and Petitioner Mother slept through his death. Finally, petitioners’ home was
found unsuitable for human habitation due to a severe lack of cleanliness and an abundance of
drug paraphernalia.

        Petitioners also argue that they were wrongfully denied improvement periods because
they allegedly admitted to their drug issues and wished to cooperate with recovery services. To
support their claim that they acknowledge their respective drug problems, petitioners cite to an
instance on the day of K.J.’s death when Petitioner Mother promised she was quitting drugs
“right now” and Petitioner Father’s attorney’s statement at a hearing that Petitioner Father had a
drug problem. Regarding recovery services, they argue that Petitioner Mother was improperly
denied services and visitation with G.J., but for Petitioner Father, they argue that the fact that
Petitioner Mother was denied services “adversely affected his ability to participate in services”
for his drug addiction issues. Petitioners admit that Petitioner Father did not fully participate in
services.

        The circuit court did not err in denying petitioners an improvement period and
terminating their parental rights due to their lack of participation with services and significant
history of drug abuse. West Virginia Code § 49-6-12(b)(4) gives circuit courts the discretion to
grant an improvement period when the respondent has shown since the initial improvement
period a substantial change in circumstances. “We have held that the granting of an improvement
period is within the circuit court's discretion.” In re Tonjia M., 212 W.Va. 443, 448, 573 S.E.2d
354, 359 (2002). Moreover, 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 . . . .’ Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114
(1980).” Syl. Pt. 4, in part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Additionally,
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: Charity H., 215 W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)

In re Timber M., 231 W.Va. 44, ___, 743 S.E.2d 352, 363 (2013).

       Here, a review of the record reveals no time when either petitioner personally
acknowledged having a drug abuse problem or the need to remedy the situation. Additionally,
the record reflects that the circuit court did not order any services for Petitioner Mother during


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the hearings, but the DHHR did provide services to Petitioner Mother. She participated briefly in
the services but stopped after a few weeks. It is clear from the record that the circuit court
correctly found that, pursuant to West Virginia Code § 49-6-5(b)(1), there is no reasonable
likelihood that the conditions of neglect or abuse can be substantially corrected and that
termination is in G.J.’s best interest. Upon such findings, circuit courts are directed to terminate
parental rights. W.Va. Code § 49-6-5(a)(6).

       For the foregoing reasons, we affirm the circuit court’s order terminating petitioners’
parental rights to G.J.

                                                                                         Affirmed.

ISSUED: January 17, 2014

CONCURRED IN BY:

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




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