                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                      FILED
In Re: A.R., M.L., B.L., & J.L.                                                    October 20, 2015
                                                                                 RORY L. PERRY II, CLERK
No. 15-0557 (Wyoming County 14-JA-1 through 14-JA-4)                           SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Father B.L., by counsel Karen S. Hatfield, appeals the Circuit Court of
Wyoming County’s May 18, 2015, order denying his motion for custody of fourteen-year-old
A.R., twelve-year-old M.T., nine-year-old B.L., and seven-year-old J.L. The Department of
Health and Human Resources (“the DHHR”), by counsel, S.L. Evans, filed a response in support
of the circuit court’s order. The guardian ad litem, Juliet W. Rundle, filed a response on behalf of
the children in support of the circuit court’s order. Respondent Mother, C.A., also filed a
response in support of the circuit court’s order. On appeal, petitioner argues that the circuit court
erred in denying his motion for custody.1

        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 January of 2014, the DHHR received a referral stating that the biological mother, C.A.,
and her then-boyfriend were “cooking meth[amphetamine] in a pot in the bathtub” in C.A.’s
house while the children were present. During the investigation, a Wyoming County Sheriff’s
Deputy discovered the presence of several items in C.A.’s home which were consistent with
manufacturing methamphetamine. The deputy also opined that C.A. was “high” and had a “thick
tongue” during the investigation. Based upon these allegations, the DHHR filed a petition for
immediate custody of the minor child. The DHHR did not include any allegations against
petitioner at that time. Accordingly, the circuit court found that the DHHR properly removed the
children due to imminent danger. The circuit court placed the children in the physical custody of
their paternal grandparents.

        In February of 2014, the circuit court held a preliminary hearing. A CPS worker testified
that evidence of a methamphetamine lab was found in C.A.’s home. The worker also testified

       1
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.

                                                 1
that C.A. and petitioner were the subject of a prior abuse and neglect proceeding involving drug
abuse. According to the workers testimony, petitioner was “completely non-cooperative” in the
prior abuse and neglect proceeding. Importantly, the circuit court granted C.A. custody of the
children at the conclusion of the prior abuse and neglect proceeding. Based upon this testimony,
the circuit court found probable cause that the children were abused and neglected. By order
entered March 13, 2014, the circuit court granted C.A. a pre-adjudicatory improvement period.
The circuit court also adjudicated petitioner as a non-offending father and transferred physical
custody of the children from the paternal grandparents to petitioner. As terms and conditions of
C.A.’s improvement period, she was ordered to submit to random drug screens.

        In May of 2015, the circuit court held a status hearing on the progress of C.A.’s pre-
adjudicatory improvement period. The DHHR submitted a court summary indicating that C.A.
was “doing very well” on her improvement period, and recommended that the improvement
period continue. The court summary also indicated that the DHHR received a referral that the
children were afraid of petitioner because of a recent physical altercation between petitioner,
petitioner’s girlfriend, and A.R. A.R. reported that petitioner hit her in the face repeatedly and
that petitioner’s girlfriend was hit while trying to intervene. The other children corroborated
A.R.’s statement. Petitioner admitted to a DHHR worker that he hit A.R. repeatedly with a belt.
By order entered July 2, 2014, the circuit court extended C.A.’s pre-adjudicatory improvement
period and transferred custody of the children from petitioner’s home, back to the home of the
paternal grandparents.

        In August of 2014, the DHHR filed a court summary that indicated that C.A. tested
negative for drugs eight times, but tested “negative dilute” thirteen times. The following month,
C.A. stipulated that the children were abused and neglected based upon her drug use. The circuit
court granted petitioner a post-adjudicatory improvement period. As terms and conditions of
C.A.’s improvement period, she was ordered to submit to random drug screens. The circuit court
also transferred physical custody of the children from the home of the paternal grandparents,
back to petitioner’s home.

        The circuit court held its first dispositional hearing in November of 2014. The DHHR
proffered that C.A. was “doing well” on her post-adjudicatory improvement period and moved
for an extension. Petitioner objected to the extension on the basis that C.A.’s had another diluted
drug screen after the prior hearing. By order entered December 31, 2014, the circuit court
extended C.A.’s post-adjudicatory improvement period. Furthermore, the parties agreed that
C.A. would submit to having her blood tested for alcohol and controlled substances as this would
eliminate the possibility of a diluted result.

        In February of 2015, the DHHR held a status hearing on the progress of C.A.’s post-
adjudicatory improvement period. The DHHR submitted a court summary that indicated that
petitioner was involved in a domestic altercation with his girlfriend in the presence of the
children. The summary further notes that petitioner accidentally shot himself in the leg and had
to be hospitalized. As a result, the DHHR removed the children from petitioner’s custody on
January 31, 2015. By order entered March 17, 2015, the circuit court ratified the transfer of
physical custody to the paternal grandparents. Further, the circuit court continued C.A.’s
dispositional hearing pending the results of her blood test.


                                                2
        In March of 2015, the circuit court held its final dispositional hearing. Again, the DHHR
proffered that C.A. “has done extremely well in the post adjudicatory improvement period” and
moved to dismiss the case against C.A. and return the children to her custody. The DHHR also
indicated that C.A.’s blood test was negative for illegal substances. Petitioner objected and
moved for custody of the children. By order entered May 18, 2015, the circuit court denied
petitioner’s motion for custody of his children. Further, the circuit court found that it was in the
children’s best interests to reunify them with C.A. and dismissed the petition for abuse and
neglect against C.A. It is from this order that petitioner now 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, petitioner argues that the circuit court erred in finding that C.A. substantially
complied with her improvement period. Specifically, petitioner argues that the DHHR failed to
present sufficient evidence that C.A. completed her improvement period, and that her completion
of the improvement period warranted reunification.

       The Court has held that

               [a]t the conclusion of the improvement period, the court shall review the
       performance of the parents in attempting to attain the goals of the improvement
       period and shall, in the court’s discretion, determine whether the conditions of the
       improvement period have been satisfied and whether sufficient improvement has
       been made in the context of all the circumstances of the case to justify the return
       of the child.

Syl. Pt. 6, In Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991). Contrary to
petitioner’s argument that C.A. did not attain the goals of her improvement period, the circuit
court was presented with ample evidence to support its finding that C.A. successfully completed
her improvement period. Here, the circuit court held several status hearings on the progress of
C.A.’s improvement periods throughout the underlying proceedings. The DHHR’s court

                                                 3
summaries submitted during those hearings indicate that C.A. “[was] doing very well” and “[a]ll
of her drug screens [were] negative but two.” Additional summaries indicate that C.A.’s service
workers had “minimal concerns.” The DHHR also presented evidence that C.A.’s final blood
sample was negative for illegal substances. During the final dispositional hearing, the DHHR
proffered that “[C.A.] has done extremely well in the post adjudicatory improvement period so
much so, that the State . . . moves to dismiss.” Based upon the evidence presented, the Court
finds no abuse of discretion in the circuit court’s ruling on this issue.

        Further, the Court declines to disturb the circuit court’s order denying petitioner’s motion
for custody of the children, especially in light of the unusual circumstances of this case. While
petitioner asserts that he was a non-abusing parent, and, therefore, entitled to the custody of the
children, we have explained that

              “[a] parent has the natural right to the custody of his or her infant child
       and, unless the parent is an unfit person because of misconduct, neglect,
       immorality, abandonment or other dereliction of duty, or has waived such right, or
       by agreement or otherwise has transferred, relinquished or surrendered such
       custody, the right of the parent to the custody of his or her infant child will be
       recognized and enforced by the courts.” Syl. Pt. [sic] Whiteman v. Robinson, 145
       W.Va. 685, 116 S.E.2d 691 (1960).

Syl. Pt. 1, Honaker v. Burnside, 182 W.Va. 448, 388 S.E.2d 322 (1989). Moreover, the guiding
principle in all matters concerning child custody is the best interests of the child. “‘Although
parents have substantial rights that must be protected, the primary goal in cases involving abuse
and neglect, as in all family law matters, must be the health and welfare of the children.’ Syl. Pt.
3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W .Va.
44, 743 S.E.2d 352 (2013); “[t]he best interests of the child[ren] is the polar star by which
decisions must be made which affect children.” Michael K.T. v. Tina L.T., 182 W.Va. 399, 405,
387 S.E.2d 866, 872 (1989) (internal citations omitted).

        Upon our review, the Court finds no error in the circuit court’s order denying petitioner’s
motion for custody of the children. The evidence before the circuit court established that
petitioner was an unfit parent due his domestic violence issues. Further, petitioner failed to prove
that a change in custody would promote the welfare of the children. See Syl. Pt. 2, Cloud v.
Cloud, 161 W. Va. 45, 239 S.E.2d 669 (1977) (holding that “[t]o justify a change of child
custody, in addition to a change in circumstances of the parties, it must be shown that such
change would materially promote the welfare of the child.”) As noted above, the DHHR had to
remove the children from petitioner’s custody for domestic violence issues on two separate
occasions, which included an incident were petitioner admitted to repeatedly hitting A.R. with a
belt. The DHHR also removed the children from petitioner’s custody after a domestic altercation
with his girlfriend in the presence of the children, which resulted in petitioner accidentally
shooting himself in the leg. Additionally, we note that, according to the guardian, it is the
children’s desire to live with C.A. Based upon the evidence presented, the circuit court found
that it was in the children’s best interests to deny petitioner’s motion for custody and to return
the children to the legal and physical custody of C.A. We find no error in this regard.

       For the foregoing reasons, we affirm.

                                                 4
                                        Affirmed.

ISSUED: October 20, 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




                                    5
