                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                     FILED
In re K.P.
                                                                                 March 12, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 17-0881 (Nicholas County 17-JA-7)                                            SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Father, S.C., by counsel, Sarah R. Campbell, appeals the Circuit Court of
Nicholas County’s September 6, 2017, order terminating his parental rights to K.P.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”), Amber R.
Hinkle, filed a response on behalf of the child in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in denying his motions for an improvement period
and finding that there was no reasonable likelihood that the conditions of abuse and neglect
could be corrected in an amount of time that would not be harmful to the child.

        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.

        On January 24, 2017, the DHHR filed a petition alleging that the infant, K.P., tested
positive for methamphetamine at birth and that the mother tested positive for opiates. The
petition alleged that petitioner’s substance abuse issues impaired his parenting skills and posed
an imminent risk to the child’s health, safety, and welfare. Petitioner was also involved in a prior
abuse and neglect case involving his two older children. Due to his drug abuse, petitioner
voluntarily relinquished his parental rights to those two children in 2016. Petitioner waived his
preliminary hearing. On March 2, 2017, the circuit court held an adjudicatory hearing wherein
petitioner stipulated that his substance abuse issues impaired his ability to care for the child and
petitioner was adjudicated as an abusing parent. Petitioner moved for a post-adjudicatory
improvement period, which the circuit court held in abeyance.


                                                            
              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).


                                                                   1

 
        On April 20, 2017, the circuit court held a dispositional hearing wherein petitioner’s
psychologist testified that petitioner was unlikely to be able to parent effectively due to his
history of drug abuse. The psychologist did not believe there was a reasonable likelihood that
petitioner could be prepared to safely have the child in his home within an eighteen-month
period. The dispositional hearing was continued.

        On May 3, 2017, the circuit court held a dispositional hearing wherein petitioner testified
that he was successfully participating in drug treatment. Petitioner admitted to using drugs for
nine years. He further admitted that he was granted an improvement period in a prior abuse and
neglect case involving two of his older children and that he did not comply with the terms and
conditions of that improvement period. When asked if he did anything to encourage the mother
to get help for her drug abuse issues while she was pregnant with the child, petitioner responded,
“[w]here I was always getting high, I was probably more encouraging the drug high.” The circuit
court continued the dispositional hearing to give petitioner an opportunity to obtain
documentation from the drug treatment program. On June 21, 2017, the circuit court held a
dispositional hearing at which the founder of the residential drug treatment program testified that
petitioner had been in the program for about ninety-seven days, and was making significant
progress in treatment, and served as a “peer mentor.” He further testified that petitioner was five
months away from completing the program. The circuit court continued the dispositional hearing
for further evidence.

        On July 25, 2017, the circuit court concluded the dispositional hearing and petitioner
moved for a post-dispositional improvement period. Petitioner’s evaluating psychiatrist testified
that he received updated information from petitioner’s treatment program and testified that he
would change petitioner’s prognosis for learning effective parenting from “extremely poor” to
“very guarded to poor.” Based upon the evidence presented, the circuit court found that due to
the unlikelihood of petitioner successfully addressing the conditions and circumstances of abuse
and neglect, and the long period of time it would take for said circumstances and conditions to be
successfully addressed, it could be harmful to permit the infant, who is less than one year old, to
establish a relationship with petitioner. Further, the circuit court found that it was in the best
interests of the child to achieve permanency. Ultimately, the circuit court denied petitioner’s
motions for an improvement period and terminated petitioner’s parental rights in its September 6,
2017, order.2 It is from the dispositional 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,

                                                            
              2
         The mother’s parental rights were also terminated below. According to the guardian and
the DHHR, the child is placed in foster care with her siblings and the permanency plan for the
child is adoption in that home.
                                                               2

 
              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 our review, the Court finds
no error in the proceedings below.

        First, petitioner argues that the circuit court erred in denying him an improvement period
throughout the proceedings, despite his progress in drug treatment, negative drug screens, and
improved prognosis. We disagree. West Virginia Code § 49-4-610 provides that in order to be
granted an improvement period, the parent must “demonstrate[ ], by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period.” We have also
held 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).

        Although petitioner and the founder of his treatment program testified that petitioner was,
at the time of the dispositional hearing, successfully participating in his drug abuse treatment
program and sober for approximately ninety-seven days, the evidence shows that petitioner has a
long history of drug abuse and never sought treatment for the problem, despite the fact that this
issue led to his voluntary relinquishment of his parental rights to two older children. Further,
petitioner admitted at the dispositional hearing that he encouraged the mother to use drugs when
she was pregnant with K.P. Petitioner also argues that because he participated in treatment and
services, he would comply with terms of an improvement period if granted one. However,
according to the psychologist, petitioner’s prognosis for learning effective parenting was “very
guarded to poor.” The psychologist explained that petitioner would require months of additional
treatment after his discharge from residential treatment and that the child would be harmed if the
circuit court were to wait for the possibility of petitioner achieving rehabilitative success and
obtaining effective parenting skills. Based on this evidence, petitioner did not meet the
applicable burden to be granted an improvement period during these proceedings. Therefore, we
find the circuit court did not abuse its discretion in denying petitioner’s motions for an
improvement period.

        Next, petitioner argues that the circuit court erred in finding that there was no reasonable
likelihood that he could correct the conditions of abuse and neglect in an amount of time that
would not be harmful to the child.3 We disagree.


                                                            
              3
         Petitioner also argues that if he had been granted an improvement period and an
extension of the improvement period, he could complete the improvement period and extension
thereof and be five months clean and in a suitable home, employed, while still within the time
limits of West Virginia Code § 49-4-610(9). However, this argument is purely speculative and
we find it unnecessary to address, as petitioner was not granted an improvement period.
                                                               3

 
        West Virginia Code § 49-4-604(c)(3) provides that no reasonable likelihood that the
conditions of abuse or neglect can be substantially corrected in the near future exists when “[t]he
abusing parent . . . ha[s] not responded to or followed through with a reasonable family case plan
or other rehabilitative efforts[.]”

       We have held that
               “[C]ourts are not required to exhaust every speculative possibility of
       parental improvement . . . where it appears that the welfare of the child will be
       seriously threatened, and this is particularly applicable to children under the age
       of three years who are more susceptible to illness, need consistent close
       interaction with fully committed adults, and are likely to have their emotional and
       physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re
       R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).
Syl. Pt. 4, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

        As discussed above, petitioner had a history of substance abuse which led to the
voluntary relinquishment of two of his older children. He continued to abuse drugs and
encouraged the mother to abuse drugs throughout her pregnancy with K.P. At the time of the
dispositional hearing, petitioner was five months away from completing his treatment program
and required several months of treatment after his predicted completion of the program.
According to the psychologist, petitioner’s prognosis for improvement was “very guarded to
poor.” Due to his poor prognosis of improvement, the circuit court found it necessary to establish
permanency for the child in a foster home with her siblings, rather than delay disposition of the
proceedings to wait for petitioner’s possible rehabilitative success. Petitioner also argues that his
case is similar to In re C.M., 235 W.Va. 16, 770 S.E.2d 516 (2015), wherein this Court held that
the circuit court’s finding that there was no reasonable likelihood that the conditions of neglect
or abuse could be substantially corrected in the near future, was clearly erroneous because the
record established that the parent completed multiple treatment programs, obtained housing and
employment, enrolled in college, and participated in successful visitations with her children. In
the case at hand, the record does contain evidence to demonstrate that there is no reasonable
likelihood that petitioner could substantially correct the conditions of abuse and neglect in the
near future, as discussed.

        We have held that, “[i]n making the final disposition in a child abuse and neglect
proceeding . . . [t]he controlling standard that governs any dispositional decision remains the best
interests of the child.” Syl. Pt. 4, In re B.H., 233 W.Va. 57, 754 S.E.2d 743 (2014). Here, the
circuit court found that due to the unlikelihood of petitioner to succeed in treatment and to
address the issues of abuse and neglect, termination of petitioner’s parental rights was in the
child’s best interests and we agree. Therefore, we find no error in the circuit court’s finding that
there was no reasonable likelihood that petitioner could correct the conditions of abuse and
neglect in the near future and terminating petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 6, 2017, order is hereby affirmed.


                                                 4

 
                                         Affirmed.

ISSUED: March 12, 2018


CONCURRED IN BY:

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




                                    5

 
