                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

                                                                                    FILED
In Re: M.H. & K.H.                                                               November 26, 2013

                                                                              RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

No. 13-0647 (Mineral County 12-JA-25 & 12-JA-26)                                OF WEST VIRGINIA




                                MEMORANDUM DECISION

         Petitioner Father, by counsel Agnieszka Collins, appeals the Circuit Court of Mineral
County’s May 24, 2013 order terminating his parental rights to M.H. and K.H. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda,
filed its response in support of the circuit court’s order. The guardians ad litem, Kelley Kuhn and
Meredith Haines, filed a response on behalf of the children also supporting the circuit court’s
order. On appeal, Petitioner Father alleges that the circuit court erred in terminating his
improvement period when the DHHR acknowledged that he needed drug counseling or
rehabilitative therapy but failed to provide either to him.

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

       Following a car accident in March of 2012, which resulted in the broken femur of M.H.,
then three years old, Petitioner Father was criminally charged with child endangerment,
possession of drugs, and driving under the influence of drugs. The DHHR evaluated the family
and substantiated findings that Petitioner Father used drugs and neglected the children by failing
to provide proper supervision, driving under the influence, and “failing to bond” with the
children. In August of 2012, the DHHR filed its initial petition against Petitioner Father alleging
general neglect and drug abuse.

        The circuit court held an adjudicatory hearing on September 12, 2012. During the
adjudicatory hearing the circuit court heard testimony from a DHHR worker and admitted the
results of Petitioner Father’s drug and alcohol tests. By order entered on September 17, 2012, the
circuit court found that the children were abused and neglected, and granted Petitioner Father a
six-month post-adjudicatory improvement period. Petitioner Father was directed to participate in
parenting and anger management classes, attend supervised visitation, and remain drug-free. In
March of 2013, the circuit court found that Petitioner Father substantially complied with the
terms of his improvement period and granted him a three-month extension. A month later, the
circuit court terminated Petitioner Father’s post-adjudicatory improvement period because he
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tested positive for alcohol, marijuana, and cocaine, missed six drug screens, and did not attend
anger management classes

        On May 17, 2013, the circuit court held a dispositional hearing. During the dispositional
hearing the circuit court heard testimony from a Child Protective Services worker, a licensed
psychologist, and a service provider. The dispositional hearing was then continued until May 21,
2013, when the circuit court heard testimony from counselor Brian Duckworth, assistant director
of Community Corrections. At the conclusion of the hearing, the circuit court terminated
Petitioner Father’s parental rights, finding that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected in the future because Petitioner
Father showed little improvement during his improvement period, continued to test positive for
drugs, and admitted that his drug problem had become worse during his improvement period. It
is from this order that Petitioner Father 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).

        Petitioner Father argues that, instead of terminating his improvement period, the circuit
court should have offered him additional services such as drug counseling or rehabilitative
therapy. West Virginia Code § 49-6-12(f) directs circuit courts to terminate the improvement
period upon a finding that the respondent failed to participate in any provision of the
improvement period. By order entered on March 7, 2013, Petitioner Father was granted a three-
month extension of his improvement period. Petitioner Father, who was expected to remain
drug-free, was directed to submit to drug testing three times per week. During the hearing on the
motion to terminate Petitioner Father’s improvement period, Tara Hockaday, director of
Community Corrections, testified that Petitioner Father did not appear for six scheduled drug
tests after March 4, 2013. Ms. Hockaday also testified that Petitioner Father tested positive for
alcohol on March 15, marijuana on March 27, and for cocaine on March 20, March 22, and April
1. Petitioner Father testified that he did not ask for additional substance abuse services or seek

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any treatment on his own. As such, it is clear that Petitioner Father failed to participate in the
services scheduled during his improvement period. The circuit court was not clearly erroneous in
terminating Petitioner Father’s parental rights.

       For the foregoing reasons, we find no error in the decision of the circuit court and its May
24, 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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