                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In re: G.N. & T.N.
                                                                                    FILED
                                                                               November 23, 2015
                                                                               RORY L. PERRY II, CLERK
No. 15-0682 (Taylor County 14-JA-4 & 14-JA-5)                                SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Father C.N., by counsel Mary S. Nelson, appeals the Circuit Court of Taylor
County’s June 15, 2015, order terminating his parental rights to G.N. and T.N. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Christopher S.
Dodrill, filed its response in support of the circuit court’s order. The guardian ad litem, Chaelyn
W. Casteel, filed a response on behalf of the children and a supplemental appendix. On appeal,
petitioner alleges that the circuit court erred in denying his motion for a post-adjudicatory
improvement period and in terminating his parental rights without considering less-restrictive
dispositional alternatives.1

        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 February of 2014, the DHHR filed an abuse and neglect petition against the parents.
The petition alleged that the parents manufactured and used methamphetamine in the home for
approximately two months while the children resided therein before abandoning the children for
approximately one month. The children lived with relatives during the latter period. The DHHR
further alleged that the parents’ home was unsuitable for the children, as it had not been
remediated following the methamphetamine production, and because petitioner broke most of the
windows in the home. The DHHR was granted emergency custody of the children.

       Shortly after the DHHR obtained emergency custody of the children, the parents
unlawfully obtained custody of their children from their placements. As a result, the Taylor
County Sheriff’s Department filed complaints against petitioner and the mother alleging the
felony charge of parental kidnapping. The children were recovered on February 25, 2014, when


       1
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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their paternal grandmother was found with the children in Tennessee. The DHHR regained
custody of the children and placed them in a specialized foster home.

         In April of 2014, the circuit court held an adjudicatory hearing, during which petitioner
stipulated to some of the allegations of abuse and neglect in the petition. Specifically, petitioner
stipulated to a number of facts concerning his severe drug use, including the fact he used illegal
drugs since the age of twelve; that he manufactured and used methamphetamine for over a year;
and that because of his drug use, he regularly went without sleep for two to five days. Based on
his testimony, the circuit court also found that petitioner’s mental health issues caused him to try
to injure himself on at least five occasions, including pouring acid on his arms, slitting his wrists,
and attempting to hang himself. As such, the circuit court adjudicated petitioner as an abusing
parent. Petitioner moved for a post-adjudicatory improvement period, but the circuit court held
the motion in abeyance.

        In July of 2014, the circuit court held a dispositional hearing, during which the DHHR
recommended termination of petitioner’s parental rights. The circuit court then heard argument
in support of petitioner’s motion for an improvement period. According to counsel, petitioner
was waitlisted for an inpatient substance abuse treatment facility, and counsel requested that the
circuit court defer ruling on the motion until petitioner was placed in the facility. The circuit
court agreed and again held the motion in abeyance. In September of 2014, the circuit court held
a review hearing and was informed that, although he was incarcerated, petitioner obtained an
intake appointment at a treatment facility. However, during a December of 2014 review hearing,
the circuit court learned that petitioner escaped from the treatment facility after being transported
from the regional jail.

        In March of 2015, the circuit court held a review hearing, during which it found that
petitioner had recently been sentenced to two concurrent terms of incarceration of two to ten
years for unrelated criminal convictions. As such, the circuit court found that petitioner was
unlikely to comply with the terms of an improvement period and denied his motion. Thereafter,
the circuit court held a dispositional hearing in May of 2015. During the hearing, petitioner
attempted to voluntarily relinquish his parental rights to the children, but the circuit court denied
the request. Ultimately, the circuit court terminated petitioner’s parental rights upon his
continued deterioration during the pendency of this case, citing his numerous violations of rules
while incarcerated. These violations, coupled with his earlier crime of taking the children from
their lawful custodians and his lengthy prison sentence, established that petitioner was unable to
remedy the conditions of abuse and neglect. Petitioner appeals from the dispositional order.

       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

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       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 circuit court denying petitioner’s motion for a post-adjudicatory improvement
period or in terminating his parental rights.

        First, the court finds no merit to petitioner’s argument that the circuit court erred in
denying his motion for a post-adjudicatory improvement period. Pursuant to West Virginia Code
§ 49-6-12(b)(2), a circuit court may only grant a post-adjudicatory improvement period when the
parent “demonstrates, by clear and convincing evidence, that the [parent] is likely to fully
participate in the improvement period . . . .” While petitioner argues that he satisfied this burden
by fully admitting to his substance abuse issues and completing a substance abuse treatment
program, the Court does not agree. Petitioner’s argument on appeal ignores the numerous
problems he exhibited during the proceedings below and the continued deterioration in the
conditions of abuse and neglect in the home.

        Specifically, the record is clear that petitioner failed to comply with several rules and
orders during these proceedings. Initially, petitioner unlawfully took the children from the
DHHR’s emergency custody and arranged for their transportation to the State of Tennessee,
resulting in criminal charges against petitioner for parental kidnapping. Further, upon learning of
an emergency hospitalization of one of his children, petitioner escaped from the inpatient
substance abuse treatment facility that he was released from incarceration to attend, resulting in a
capias being issued against him. Lastly, the circuit court found that petitioner “violated numerous
rules while . . . incarcerated at the Tygart Valley Regional Jail.” Based upon this evidence, and
also the fact that petitioner was sentenced to a lengthy term of incarceration during the
proceedings below, the circuit court found that petitioner was unlikely to fully participate in an
improvement period, and the Court finds no error in this determination. Further, the Court finds
petitioner’s argument as to the mother receiving an improvement period lacking. Simply put, the
fact that the circuit court found that the children’s mother satisfied the applicable burden of proof
does not mean petitioner was entitled to an improvement period.

        As to petitioner’s argument that the circuit court erred in terminating his parental rights
without considering less-restrictive alternatives, the Court finds no error. As addressed above,
the evidence established that petitioner failed to comply with specific directions from the circuit
court during the proceedings, going so far as to illegally transfer custody of his children from the
DHHR and secure their transportation to another state. And while it may be true that petitioner
completed substance abuse treatment, the record clearly shows that he escaped from that facility
upon learning that his child was hospitalized, resulting in a capias being issued for him.

       Pursuant to West Virginia Code § 49-4-604(c)(3), there is no reasonable likelihood the
conditions of abuse or neglect can be substantially corrected when “[t]he abusing parent . . . [has]

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not responded to or followed through with a reasonable family case plan or other rehabilitative
efforts of social, medical, mental health or other rehabilitative agencies designed to reduce or
prevent the abuse or neglect of the child.”2 Here, the circuit court was presented with sufficient
evidence to make this finding in regard to petitioner based upon the evidence outlined above.
Simply put, petitioner’s addiction and mental health issues persisted throughout these
proceedings, as evidenced by his failure to comply with specific directions and rules regarding
his incarceration, his completion of substance abuse treatment notwithstanding. The circuit court
also found that termination of petitioner’s parental rights was in the children’s best interests.
Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate parental
rights upon these findings. Further, we have previously 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 such, it was not error for the
circuit court to terminate petitioner’s parental rights instead of imposing a less-restrictive
dispositional alternative.

        Moreover, the Court finds no error in regard to petitioner’s allegation that child T.N.’s
middle initial was reflected inaccurately throughout these proceedings. Petitioner alleges that
because the child’s correct middle initial was not included below, that the Court should reverse
the dispositional order. We do not agree. While it may be true that the child’s middle initial was
incorrectly listed in the style of the proceedings below, it is uncontested that petitioner has only
two children, both male, and that the circuit court terminated his parental rights to those children.
As such, it is clear, absent a correct middle initial, that the circuit court terminated petitioner’s
parental rights to his two sons. We have previously held that

               “[w]here it appears from the record that the process established by the
       Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes
       for the disposition of cases involving children [alleged] to be abused or neglected
       has been substantially disregarded or frustrated, the resulting order . . . will be
       vacated and the case remanded for compliance with that process and entry of an
       appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
       558 S.E.2d 620 (2001).




       2
        Because the dispositional hearing in this matter took place on May 20, 2015, the day the
new version of West Virginia Code §§ 49-1-101 through 49-7-304 went into effect, the Court
will apply the revised versions of those statutes on appeal.
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Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). Our review of the record shows
that the error of which petitioner complains is not of such significance that it warrants a reversal
of the resulting order.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 15, 2015, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: November 23, 2015


CONCURRED IN BY:

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




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