                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


                                                                                        FILED
In re C.E. and A.E.
                                                                                     June 25, 2020
                                                                                   EDYTHE NASH GAISER, CLERK
No. 19-0877 (Randolph County 18-JA-142 and 18-JA-143)                              SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA




                               MEMORANDUM DECISION


       Petitioner Father J.E., by counsel J. Brent Easton, appeals the Circuit Court of Randolph
County’s August 30, 2019, order terminating his parental rights to C.E. and A.E. 1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed
a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Heather
Weese, filed a response on behalf of the children also in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in denying his motion for an improvement
period and terminating his parental rights.

       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 November of 2018, the DHHR filed an abuse and neglect petition against petitioner
alleging that he regularly abused methamphetamine and engaged in domestic violence with the
mother and the children. Specifically, the children reported that petitioner regularly beat, whipped,
and body-slammed them and that petitioner smoked methamphetamine in the basement. One child
appeared at school with bruises and welts on his legs and a busted lip. Further, petitioner had an
extensive history of perpetrating domestic violence upon the mother. After petitioner waived his
preliminary hearing, the DHHR offered him services such as individualized parenting classes,
adult life skills classes, domestic batterer’s intervention classes, and supervised visitations with
the children.


       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).
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        At an adjudicatory hearing held in January of 2019, petitioner stipulated to the allegations
as contained in the petition, and the circuit court adjudicated him as an abusing parent. Petitioner
moved for a post-adjudicatory improvement period, and the circuit court scheduled the motion for
hearing. At the next hearing on February 20, 2019, the circuit court ordered petitioner to submit to
a parental fitness evaluation. After petitioner’s delay in submitting to his parental fitness
evaluation, on May 16, 2019, the circuit court reviewed petitioner’s results, which showed that
petitioner did not possess the parental capacity to adequately care for the children. The report
further stated that petitioner’s prognosis was “guarded,” but that he could benefit from substance
abuse and domestic violence counseling.

        The circuit court held a hearing on petitioner’s motion for an improvement period in June
of 2019, during which petitioner denied having an anger problem and downplayed his issues with
domestic violence and substance abuse. Petitioner testified that smoking methamphetamine was
akin to drinking a beer on a Friday night. The DHHR worker testified that petitioner failed to
comply with offered services such as adult life skills classes, individualized parenting classes,
domestic batterer’s intervention classes, and supervised visitations with the children. The DHHR
worker further testified that petitioner tested positive of methamphetamine four times in February
of 2019. The DHHR and the guardian opposed petitioner’s motion and sought the termination of
his parental rights. The circuit court denied petitioner’s motion for an improvement period, finding
that he was unlikely to participate in an improvement period.

        The dispositional hearing was held in July of 2019, during which petitioner renewed his
motion for an improvement period. Petitioner testified that he had obtained a vehicle and
maintained employment but admitted that he had not completed the domestic batterer’s
intervention course or regularly drug screened. Petitioner claimed he submitted several negative
drug screens since the June 3, 2019, hearing, but the DHHR advised it had received only two
negative drug screens. Ultimately, the circuit court found that there was no reasonable likelihood
that petitioner could correct the conditions of abuse and neglect in the near future and that
termination of petitioner’s parental rights was necessary for the children’s welfare. The circuit
court terminated petitioner’s parental rights by order entered on August 30, 2019. Petitioner
appeals this dispositional order. 2

       The Court has previously established the following standard of review in cases such as this:

               “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,


       2
         The mother successfully completed an improvement period, and the children were
returned to her custody. As the petition against the mother was dismissed, the permanency plan
for the children is to remain in her care.
                                                 2
       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 denying him a post-adjudicatory
improvement period. Petitioner contends that his testimony established that he was likely to
participate in an improvement period and otherwise satisfied the requirements to be granted an
improvement period. We disagree.

        The decision to grant or deny an improvement period rests in the sound discretion of the
circuit court. See In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia
law allows the circuit court discretion in deciding whether to grant a parent an improvement
period.”); Syl. Pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“It is within the
court’s discretion to grant an improvement period within the applicable statutory requirements . .
. .”). We have also held that a parent’s “entitlement to an improvement period is conditioned upon
the ability of the [parent] to demonstrate ‘by clear and convincing evidence that the respondent is
likely to fully participate in the improvement period.’” In re Charity H., 215 W. Va. 208, 215, 599
S.E.2d 631, 638 (2004).

        Having reviewed the record, we find that the circuit court did not abuse its discretion in
denying petitioner’s request for an improvement period. Apart from attending hearings, petitioner
failed to participate in nearly every aspect of the proceedings. Petitioner tested positive for drugs
numerous times throughout the proceedings, missed drug screens, and missed several
appointments for his parental fitness evaluation, which delayed the proceedings by several months.
Petitioner failed to take advantage of the numerous services offered to him and admitted as much
when he testified that he failed to enroll into the domestic batterer’s intervention course. Further,
petitioner consistently denied having an anger problem and downplayed the severity of his
substance abuse and domestic violence issues. Indeed, petitioner opined that smoking
methamphetamine was akin to drinking a beer on a Friday night. We have 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 Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted). As petitioner
failed to avail himself of the services offered by the DHHR and failed to acknowledge the severity
of his substance abuse and domestic violence issues, we find no error in the circuit court’s finding
that he was unlikely to fully participate in an improvement period. Accordingly, petitioner is
entitled to no relief.




                                                  3
        We likewise find no error in the circuit court’s termination of petitioner’s parental rights.
West Virginia Code § 49-4-604(b)(6) (2019) 3 permits a circuit court to terminate parental rights
upon finding that “there is no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected in the near future” and that termination is necessary for the welfare of the
children. Further, pursuant to West Virginia Code § 49-4-604(c)(3) (2019), a situation in which
there is no reasonable likelihood that the conditions of abuse and neglect can be substantially
corrected includes one in which “[t]he abusing parent . . . [has] not responded to or followed
through with a reasonable family case plan or other rehabilitative efforts . . . designed to reduce or
prevent the abuse or neglect of the child[ren].”

        As shown above, petitioner failed to follow through with rehabilitative efforts designed to
reduce or prevent the abuse or neglect of the children. Specifically, petitioner failed to comply
with the DHHR’s offered services such as adult life skills classes, individualized parenting classes,
domestic batterer’s intervention classes, random drug screening, and supervised visitations with
the children. Despite petitioner’s stipulation to substance abuse and domestic violence, petitioner
failed to make any attempt to address these issues as he failed to attend domestic batterer’s
intervention classes or comply with regular drug screening. Although petitioner obtained
transportation and employment, these minimal improvements did nothing to address the
underlying conditions of abuse and neglect—petitioner’s severe substance abuse and domestic
violence issues. Based on this evidence, it is clear there was no reasonable likelihood that petitioner
could correct the conditions of abuse in the near future. Additionally, the record shows that the
children’s welfare required termination of petitioner’s parental rights as there was evidence that
petitioner’s violent behavior remained unaddressed, which would place the children in danger.
Further, petitioner’s untreated substance abuse prevents him from properly parenting and
supervising the children. Therefore, sufficient evidence was presented to find that there was no
reasonable likelihood that petitioner could correct the conditions of abuse and/or neglect in the
near future and that termination of petitioner’s parental rights was necessary for the children’s
welfare.

         To the extent petitioner claims he should have been granted an improvement period prior
to the termination of her parental rights, this Court has previously held that

                “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [West Virginia
       Code § 49-4-604 (2019)] may be employed without the use of intervening less
       restrictive alternatives when it is found that there is no reasonable likelihood under
       [West Virginia Code § 49-4-604(c) (2019)] that conditions of neglect or abuse can
       be substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266
       S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Because the circuit court properly
found that there was no reasonable likelihood that the conditions of abuse and neglect could be
corrected in the near future, a less-restrictive alternative was not warranted.


       3
        Although the Legislature amended West Virginia Code § 49-4-604 effective June 5, 2020,
including renumbering the provisions, the amendments do not impact this case.
                                                  4
      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 30, 2019, order is hereby affirmed.

                                                                                     Affirmed.

ISSUED: June 25, 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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