                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                    FILED
In Re: J.S., S.C., A.C., and K.S.                                                 November 26, 2013
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
No. 13-0417 (Nicholas County 12-JA-68 through 12-JA-71)                          OF WEST VIRGINIA




                                 MEMORANDUM DECISION

        Petitioner Mother, by counsel Laura Spadaro, and Petitioner Father, by counsel Kevin
Hughart, jointly appeal the Circuit Court of Nicholas County’s March 25, 2013, order
terminating their parental and custodial rights to J.S., S.C., A.C., and K.S.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Angela Walters, filed its
response in support of the circuit court’s order. The guardian ad litem, Julia Callaghan, filed a
response on behalf of the children also supporting the circuit court’s order. On appeal, petitioners
argue that the circuit court erred in not providing them with specific goals they had to attain in
order to be granted a post-adjudicatory improvement period.

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

        In November of 2012, the DHHR filed its initial petition to institute abuse and neglect
proceedings against petitioners, alleging that the parents failed to supply the children with the
necessary food, clothing, shelter, supervision, medical care, or education. Specifically, the
DHHR stated that petitioners and their children were found in the home of a known
manufacturer of methamphetamines, without heat, where drug paraphernalia was found.2 The
DHHR also stated that petitioners evaded Child Protective Services (“CPS”) workers. Prior to
the filing of the instant petition, the DHHR had offered the family numerous services such as
adult life skills classes; parenting classes; economic services; drug screening; Women, Infants,
and Children benefits; transportation services; and safety and supervision services.

       1
         Petitioner Mother is the biological mother of all four children. The circuit court
terminated her parental and custodial rights to these children. Petitioner Father is the biological
father of S.C. and A.C. only, and the circuit court terminated his parental and custodial rights to
those children.
       2
        It is unclear whether the children were residing in the home, and the duration of the stay
cannot be determined from the appendix record.
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        On January 14, 2013, the circuit court held an adjudicatory hearing, during which
petitioners stipulated that the children were found in the home of a known manufacturer of
methamphetamines, who is the subject of pending abuse and neglect cases; the residence did not
have heat; the children were located in a room in the house where drug paraphernalia was found;
petitioners did not have the ability to heat their own home; petitioners frequently moved in an
effort to evade CPS; the children were filthy and smelled “bad”; and J.S. had missed fifteen days
of school since September 18, 2012. The circuit court accepted petitioners’ stipulated
adjudication and ruled that the children were abused and neglected. In March of 2013, the circuit
court terminated petitioners’ parental and custodial rights to the children. The circuit court found
that petitioners failed to participate in services since October of 2012, failed to maintain contact
with the DHHR, and did not participate in the development of a case plan. It is from this order
that petitioners appeal.

       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).

       To begin, petitioners argue that the circuit court denied them a post-adjudicatory
improvement period. Petitioners state that the following language found in the circuit court’s
order was an effective denial of a post-adjudicatory improvement period:

       The State further advised the [circuit court that] neither the State nor the Guardian
       Ad Litem were recommending an Improvement Period, however, should the adult
       respondents participate in services and show a sign of progress between now and
       disposition, the State and the Guardian Ad Litem may recommend a Post-
       Dispositional Improvement Period.




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        We find that the circuit court did not deny petitioners a post-adjudicatory improvement
period. Neither this, nor any language in the circuit court’s orders that have been included in the
appendix record, conveys a denial of a post-adjudicatory improvement period.

         Petitioners further argue that the circuit court should have specified what steps they
needed to achieve in order to be granted a post-dispositional improvement period and that
without the circuit court’s guidance, it was impossible for them to obtain a post-dispositional
improvement period.3 Upon our review, the Court finds no error in the circuit court’s termination
of petitioners’ parental and custodial rights without granting an improvement period. West
Virginia Code § 49-6-12(c) grants circuit courts discretion in granting post-dispositional
improvement periods after certain conditions are met. Circuit courts may grant a post-
dispositional improvement period when “[t]he respondent moves in writing for the improvement
period.” W.Va. Code § 49-6-12(c)(1). The record in this matter clearly shows that petitioners did
not file a motion for a post-adjudicatory improvement period, though that responsibility is clearly
theirs under the statute. Petitioners’ appellate counsels acknowledge that prior counsel did not
file a written motion for an improvement period. As such, petitioners failed to satisfy their initial
burden.

        Petitioners argue, however, that they were never given an opportunity to file a written
motion prior to the entry of the circuit court order. We disagree. There is no evidence in the
appendix record that they were affirmatively prevented or denied the opportunity to file a written
motion for an improvement period. Petitioners counsel could have filed a written motion for an
improvement period at any time after the initial petition was filed in November of 2012, until the
dispositional hearing in February of 2013, yet they failed to do so.4

        Furthermore, West Virginia Code § 49-6-12(c) grants circuit courts discretion in granting
post-disposition improvement periods only upon a showing that the parents will fully participate
in the same. The record in this matter supports the circuit court’s termination because petitioners
failed to show, by clear and convincing evidence, that they would fully comply with the terms of
a post-dispositional improvement period.

        While it is true that petitioners fixed two windows in the home, patched holes in the floor,
repaired the plumbing, and bagged up trash to take to the dump, the record also shows that
petitioners failed to attend a multi-disciplinary team meeting and failed to participate in the

       3
         Petitioners argue that they are entitled to this improvement period because they have
made progress since the adjudicatory hearing by fixing two windows in their home, fixing the
holes in the floor of the home, fixing the plumbing, and bagging up trash to take to the dump.
       4
        Petitioners’ appellate counsel did not represent either party in the underlying
proceedings.
                                               3
development of a case plan. This illustrates that petitioners failed to show by clear and
convincing evidence that they would fully comply with the terms of an improvement period.
“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). For these reasons,
the Court finds no error in terminating petitioners’ parental and custodial rights without granting
them an improvement period.

        Finally, as to the termination of petitioners’ parental and custodial rights, the Court finds
no error. The children were found in the house of a known drug dealer where methamphetamines
were regularly manufactured and Petitioners have failed to benefit from several years of services.
The record supports the circuit court’s decision to terminate petitioners’ parental and custodial
rights. As the circuit court noted, petitioners “failed to attend or participated in the [multi­
disciplinary team meeting] and therefore did not participate in the development of a reasonable
family case plan.” Based upon this evidence, the circuit court found that there was no reasonable
likelihood that petitioner could substantially correct the conditions of abuse or neglect in the near
future and that termination was in the children’s best interest. As set forth in West Virginia Code
§ 49-6-5(b)(2), such conditions exist in situations when “[t]he abusing parent or parents have
willfully refused or are presently unwilling to cooperate in the development of a reasonable
family case plan.” Pursuant to West Virginia Code 49-6-5(a)(6), circuit courts are directed to
terminate parental rights upon such findings.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
March 25, 2013 order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: November 26, 2013

CONCURRED IN BY:

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




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