                                                    SUPREME COURT OF APPEALS


In re A.D.
                                                                                    FILED
                                                                                  April 9, 2018
No. 17-1092 (Mercer County 16-JA-37)                                            EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA 


                                                          MEMORANDUM DECISION
       Petitioner Father L.D., by counsel John G. Byrd, appeals the Circuit Court of Mercer
County’s November 13, 2017, order terminating his parental rights to A.D.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), David
Kelley, filed a response on behalf of the child in support of the circuit court’s order and a
supplemental appendix. On appeal, petitioner argues that the circuit court erred in terminating his
parental rights when the child’s mother was participating in a post-dispositional improvement
period and by not employing a less-restrictive alternative than 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.

        On March 17, 2016, the DHHR filed a petition alleging that petitioner abused and
neglected the child. The petition specifically alleged that petitioner’s home was in a “deplorable”
condition and that there was no clear path to walk through the residence. According to the
petition, the child lacked proper hygiene, her clothes were too small, and she had diaper rash
severe enough to require medical attention. The petition also alleged that there was drug
paraphernalia in the home, little food in the refrigerator, and that petitioner exposed the child to
drug use in the home. Petitioner waived the preliminary hearing. On April 22, 2016, the circuit
court held an adjudicatory hearing during which petitioner stipulated to the allegations of abuse
and neglect. Petitioner was adjudicated as an abusing parent and was granted a post-adjudicatory
improvement period.

       On March 15, 2017, the DHHR moved to terminate petitioner’s parental rights. In
support of its motion, the DHHR alleged that petitioner failed to comply with the terms and
                                                            
              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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conditions of his improvement period in that he failed to complete a long-term substance abuse
treatment program and participate in random drug screenings. The DHHR also alleged that
petitioner habitually abused alcohol and controlled substances to the extent that his parenting
skills were seriously impaired.

        On October 30, 2017, the circuit court held a dispositional hearing, which petitioner
failed to attend, although he was represented by counsel at that hearing. The DHHR presented
testimony from a caseworker that petitioner failed to enter into a long-term substance abuse
treatment program. The caseworker also testified that petitioner failed to participate in parenting
education, adult life skills classes, and random drug screening. A service provider testified that
petitioner failed to comply with parenting education classes and supervised visitation for at least
six weeks prior to the dispositional hearing. Based on this evidence, the circuit court found that
there was no reasonable likelihood that petitioner could substantially correct the conditions of
abuse and neglect in the near future and that termination of his parental rights was in the child’s
best interests. At the close of the dispositional hearing, the child’s mother was granted an
extension to her post-dispositional improvement period. The circuit court ultimately terminated
petitioner’s parental rights in its November 13, 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,
              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.

        On appeal, petitioner argues that the circuit court erred in terminating his parental rights
because the mother was participating in an improvement period. We disagree. West Virginia
Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental rights upon findings
that there is “no reasonable likelihood that the conditions of neglect or abuse can be substantially

                                                            
              2
        The mother voluntarily relinquished her parental rights in February of 2018. According
to the guardian and the DHHR, the permanency plan for the child is adoption by her paternal
grandparents.
                                                               2

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

       Here, it is clear that there was no reasonable likelihood that petitioner could have
substantially corrected the conditions of abuse or neglect in the near future. The record shows
that petitioner failed to comply with the terms and conditions of his post-adjudicatory
improvement period. Specifically, petitioner failed to enter into a long-term substance abuse
treatment program, continued to abuse drugs and alcohol, and failed to participate in parenting
education classes, adult life skills classes, and random drug screening.

        Although petitioner argues that the circuit court erred in terminating his parental rights
when the child’s mother was participating in an improvement period, we have held that “[West
Virginia Code § 49-4-604] permits the termination of one parent’s parental rights while leaving
the rights of the nonabusing parent completely intact, if the circumstances so warrant.” In re
Emily, 208 W.Va. 325, 344, 540 S.E.2d 542, 561 (2000). Further, “simply because one parent
has been found to be a fit and proper caretaker for [the] child does not automatically entitle the
child’s other parent to retain his/her parental rights if his/her conduct has endangered the child
and such conditions of abuse and/or neglect are not expected to improve.” Id.

        As discussed above, the record shows that there was no reasonable likelihood that
petitioner could substantially correct the conditions of abuse and neglect because he failed to
successfully participate in his post-adjudicatory improvement period. Therefore, the circuit court
did not err in terminating petitioner’s parental rights when the child’s mother was participating in
a post-dispositional improvement period.

        Further, while petitioner argues that the circuit court erred in terminating his parental
rights instead of employing a less-restrictive alternative, we have previously held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the
       use of intervening less restrictive alternatives when it is found that there is no
       reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code
       § 49-4-604(c)] . . . 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). Moreover, it is clear that
termination was necessary for the child’s welfare, given that petitioner failed to correct the
conditions of abuse and neglect. For these reasons, we find no error in the circuit court’s
termination of petitioner’s parental rights.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 13, 2017, dispositional order is hereby affirmed.

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                                         Affirmed.




ISSUED: April 9, 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




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