                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In re: M.S. and B.E.                                                              FILED
                                                                               June 16, 2017
No. 17-0222 (Randolph County 16-JA-031 & 16-JA-032)                            RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Father B.E., by counsel J. Brent Easton, appeals the Circuit Court of Randolph
County’s February 8, 2017, order terminating his parental rights to M.S. and B.E.-1.1 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 guardian ad litem (“guardian”),
Heather M. Weese, filed a response on behalf of the children also in support of the circuit court’s
order and a supplemental appendix. On appeal, petitioner argues that he should have been
entitled to an additional improvement period at disposition because of the DHHR failure to
timely file a family case plan.

        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 March of 2016, the DHHR filed an abuse and neglect petition against petitioner and
the mother that alleged the mother abused drugs during her pregnancy with M.S. The petition
further alleged that the mother’s drug use resulted in abuse and neglect to the other children in
the home.2 As to petitioner, the DHHR alleged that he also abused drugs and supported the

       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). Additionally, because one of the children and petitioner
share the same initials, we will refer to them as B.E.-1 and B.E.-2, respectively, throughout this
memorandum decision.
       2
        The proceedings in circuit court concerned additional children that are not petitioner’s
biological children. Petitioner raises no assignment of error regarding these children.
Accordingly, those children are not the subject of this memorandum decision.




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mother’s drug abuse. The petition further alleged that petitioner engaged in domestic violence in
the home.

        That same month, the circuit court held an adjudicatory hearing, at which petitioner
stipulated to neglecting the children due to drug abuse and the domestic violence present in the
home. The circuit court thereafter granted petitioner a post-adjudicatory improvement period and
directed the multidisciplinary team (“MDT”) to meet in order to set the terms and conditions of
the post-adjudicatory improvement period. The following day, the MDT met to comply with the
circuit court’s direction. During the meeting, the parties set the terms and conditions of
petitioner’s improvement period and memorialized the same in a document that petitioner
signed. The terms and conditions included, but were not limited to, the following: (1) complete
recommended evaluations; (2) submit to random drug screens; (3) participate in any services
deemed appropriate, including parenting services and anger management/batterers intervention
services; and (4) participate in visitation with the children.

        In May of 2016, the circuit court held a review hearing, during which it determined that
petitioner was noncompliant with the terms and conditions of his improvement period, including
his failure to submit to drug screens. After the DHHR suggested finding a new location for
petitioner to submit to screens, the circuit court ordered petitioner to comply with the DHHR’s
attempts to facilitate the same.

       In July of 2016, the circuit court held another review hearing. Petitioner failed to appear
in person, although he was represented by counsel. During the hearing, the DHHR presented
evidence that petitioner continued in his failure to comply with his improvement period,
including missed drug screens and visitations with the children. However, the circuit court
granted petitioner an extension of his post-adjudicatory improvement period.

        In August of 2016, the circuit court held another review hearing. The circuit court found
that, aside from attending three parenting classes, petitioner failed to participate in his
improvement period. This included petitioner’s failure to submit to drug screens, visit the
children, and attend hearings. Shortly after the hearing, the DHHR filed a motion to terminate
petitioner’s parental rights.

        In December of 2016, the circuit court held a dispositional hearing, during which the
parents moved for post-dispositional improvement periods on the grounds that the DHHR failed
to timely file a family case plan after they were granted post-adjudicatory improvement periods.
The circuit court then continued the hearing and ordered the DHHR to file a family case plan. In
January of 2017, the circuit court held another dispositional hearing subsequent to the DHHR’s
filing of a case plan.3 Petitioner again failed to appear in person, but was represented by counsel.

       3
        The record in this matter is clear that the DHHR’s case plan specifically indicated that it
was a child case plan submitted at least five days prior to the dispositional hearing as required by
West Virginia Code § 49-4-604. In support of his motion for a post-dispositional improvement
period in the circuit court, petitioner argued that he was entitled to the same because of the

                                                                                   (continued . . . )
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During the hearing, the circuit court denied petitioner’s motion for a post-dispositional
improvement period upon petitioner’s failure to comply with any terms and conditions of his
post-adjudicatory improvement period. The circuit court found that petitioner failed to comply
with minimal requirements, such as executing a medical release for the DHHR in order to
facilitate other services. Petitioner further failed to participate in evaluations, visitation with the
children, and anger management classes. Moreover, petitioner routinely missed drug screens and
tested positive for illicit substances on the few occasions he did submit to screening. As such, the
circuit court terminated petitioner’s parental rights to the children.4 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


DHHR’s failure to file a family case plan within thirty days of the granting of his post­
adjudicatory hearing, as required by West Virginia Code § 49-4-408(a). According to West
Virginia Code § 49-4-408(a),

       [t]he [DHHR] shall develop a unified child and family case plan for every family
       wherein a person has been referred to the department after being allowed an
       improvement period or where the child is placed in foster care. The case plan
       must be filed within sixty days of the child coming into foster care or within thirty
       days of the inception of the improvement period, whichever occurs first.

However, West Virginia Code § 49-4-604(a) states, in pertinent part, that

       [f]ollowing a determination pursuant to section six hundred two of this article
       wherein the court finds a child to be abused or neglected, the department shall file
       with the court a copy of the child’s case plan, including the permanency plan for
       the child. The term “case plan” means a written document that includes, where
       applicable, the requirements of the family case plan as provided in section four
       hundred eight of this article

Following the filing of the DHHR’s case plan in December of 2016, the circuit court found, in its
February 8, 2017, dispositional order, that the DHHR “has filed a Child or Family Case Plan
prior to the disposition in this matter.” As such, it is clear that the DHHR’s child case plan,
submitted in accordance with West Virginia Code § 49-4-604(a), contained the requirements of
the family case plan as set forth in West Virginia Code § 49-4-408.
       4
         Both parents’ parental rights to the children were terminated below. According to the
guardian, the children are placed in the home of a maternal relative with a goal of adoption
therein.



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       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).

       On appeal, petitioner argues that he should have been entitled to an additional
improvement period at disposition because of the DHHR’s failure to timely file a family case
plan.5 We do not agree. With regard to family case plans, this Court has stated that

                “[t]he purpose of the family case plan as set out in W.Va. Code [§] 49-6D­
       3(a) [now W.Va. Code § 49-4-408(a)] . . . is to clearly set forth an organized,
       realistic method of identifying family problems and the logical steps to be used in
       resolving or lessening these problems.” Syl. Pt. 5, State ex rel. Dep’t of Human
       Services v. Cheryl M., 177 W. Va. 688, 356 S.E.2d 181 (1987).

Syl. Pt. 2, In re Desarae M., 214 W.Va. 657, 591 S.E.2d 215 (2003). We have also stated 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

       5
         Petitioner also argues that the circuit court erroneously found that he waived his right to
have the DHHR timely file a family case plan by his failure to object to the lack of a case plan
until the dispositional hearing. Because the Court affirms the circuit court’s dispositional order
on other grounds, it is unnecessary to address petitioner’s argument concerning waiver. As we
have held,

               “[t]his Court may, on appeal, affirm the judgment of the lower court when
       it appears that such judgment is correct on any legal ground disclosed by the
       record, regardless of the ground, reason or theory assigned by the lower court as
       the basis for its judgment.” Syllabus point 3, Barnett v. Wolfolk, 149 W.Va. 246,
       140 S.E.2d 466 (1965).

Syl. Pt. 3, Bowyer v. Wyckoff, 238 W.Va. 446, 769 S.E.2d 233 (2017).



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       appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
       558 S.E.2d 620 (2001).

Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). Inherent in this holding is the
idea that when the rules and statutes governing abuse and neglect cases have not been
substantially disregarded or frustrated, vacation of the resulting order is unnecessary.

        In support of his argument, petitioner relies heavily on our prior holding in Desarae M. to
argue that a list of the specific terms and conditions of an improvement period are insufficient to
satisfy the statutory requirement that the DHHR file a family case plan within thirty days of the
inception of an improvement period. According to petitioner, his case is analogous to the facts in
Desarae M. and, accordingly, he should have been entitled to an improvement period at
disposition so that the DHHR could timely file a family case plan upon the initiation of this
second improvement period. We do not agree, as the facts of petitioner’s case differ substantially
from Desarae M. Most notably, the mother in that case was complying with services during the
improvement period at issue and was actively prejudiced by the DHHR’s failure to timely file a
family case plan. Specifically, the mother in that case “allege[d] that personnel shortages within
[the] DHHR limited her success during her improvement period.” Desarae M., 214 W.Va. at
661, 591 S.E.2d at 219. These shortages resulted in the DHHR’s failure to transport the children
to the designated location for visitation after DHHR caseworkers terminated their employment
and the DHHR failed to make alternate arrangements. Id. Moreover, the DHHR requested that
the mother cease her counseling by one provider in favor of counseling with a different provider
who subsequently went on vacation for several weeks, thereby causing the mother to miss
services. Id.

         In the present case, the record is clear that the DHHR’s failure to timely file a case plan
did not prejudice petitioner. In fact, the DHHR accommodated petitioner extensively, despite the
fact that he routinely failed to participate in the services offered. According to the record, after
missing several drug screens prior to May of 2016, because his employment required him to be
out of town, the DHHR suggested that petitioner cooperate in determining a location near his
employment that he could submit to drug screens. The DHHR then arranged for petitioner to
submit to drug screening at a location he would pass on his way to visitation with the children.
According to the guardian, the DHHR contacted the facility in question and arranged payment so
that all that was required of petitioner was that he appear at the location and provide a sample.
Despite the DHHR’s assistance, petitioner failed to submit to drug screens at any time other than
directly after circuit court hearings. Moreover, on the occasions that petitioner did submit to drug
screening he tested positive for illicit substances.

        At disposition, the circuit court found that it had, over objections from the DHHR and the
guardian, granted petitioner multiple continuances of his post-adjudicatory improvement period
so that he could comply with the terms thereof. Despite these continuances, the circuit court
found that petitioner’s “participation ha[d] declined even further.” Ultimately, the circuit court
found that petitioner “ha[d] not complied with any of the terms and conditions of his
improvement period.” Based on petitioner’s refusal to participate in his post-adjudicatory
improvement period, the circuit court found that he “abandoned these proceedings.” While
petitioner argues that the DHHR’s lack of a family case plan resulted in “an amorphous

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improvement period where there are no detailed standards by which the improvement steps can
be measured[,]” the record is clear that petitioner took no steps toward remedying the conditions
of abuse and neglect in the home. Desarae M., 214 W.Va. at 663, 591 S.E.2d at 221 (quoting
State ex rel. W.Va. Dep’t of Human Services v. Cheryl M., 177 W.Va. 688, 693-94, 356 S.E.2d
181, 186-87 (1987)). As such, the DHHR’s failure to timely file a family case plan had no impact
on petitioner’s willful refusal to take any steps to remedy the conditions of abuse and neglect in
the home.

        While petitioner is correct that West Virginia Code § 49-4-408(a) requires that a family
case plan be filed within sixty days of the child coming into foster care or thirty days of an
improvement period’s inception, the Court does not find reversible error on that issue under the
specific limited circumstances of this case. The record on appeal in this case is clear that
petitioner participated in MDT meetings, during which he executed a document entitled
“Improvement Period Terms.” This document included extensive requirements for petitioner
during his post-adjudicatory improvement period that were designed to remedy the conditions of
abuse and neglect in the home. These terms included petitioner’s participation in recommended
evaluations designed “to assist in determining treatment options” and to follow through with the
recommendations of such evaluations; remaining free of alcohol and illicit substances, as
verified by random drug screens; participation in visitation and compliance with the rules
thereof; completion of anger management and batterers intervention services; and compliance
with parenting services, among other requirements. As such, the record shows that petitioner was
aware of the underlying conditions that needed correcting, namely his substance abuse and
domestic violence issues, and the steps necessary to correct these issue. Specifically, the multiple
review hearings below routinely addressed the steps petitioner had taken between hearings to
correct the conditions of abuse and neglect and addressed his level of participation, which the
circuit court ultimately found to be entirely lacking. On appeal, petitioner does not allege that he
was confused about what efforts he needed to undertake to achieve reunification with the
children, and the record is clear that he was fully aware that he needed to correct his substance
abuse and domestic violence issues in order to achieve that goal. As such, we cannot find that the
Rules of Procedure for Child Abuse and Neglect Proceedings or the related statutes have been
substantially disregarded or frustrated such that vacation of the dispositional order is required.
Therefore, we find no reversible error in this regard.

         Because, under the limited circumstances of this case, we find no error in the DHHR’s
failure to timely file the family case plan, we similarly find that petitioner was not entitled to an
additional improvement period at disposition as he asserts. Pursuant to West Virginia Code § 49­
4-610(3)(D), a circuit court may grant a parent an improvement period at disposition if, “the
[parent] demonstrates that since the initial improvement period, the [parent] has experienced a
substantial change in circumstances. Further, the [parent] shall demonstrate that due to that
change in circumstances, the [parent] is likely to fully participate in the improvement period . . .
.” Here, petitioner was previously granted a post-adjudicatory improvement period. However, the
record is clear that petitioner could not establish a substantial change in circumstances since his
initial improvement period or that he was likely to fully participate in a new improvement period.
In fact, as the circuit court noted, petitioner’s participation in the proceedings actually worsened
over time, to the point that the circuit court found he had abandoned the case by the time he
requested an improvement period at disposition. Accordingly, the record is clear that petitioner

                                                 6


could not satisfy the requisite burdens necessary to obtain an additional improvement period at
disposition. As such, we find no error in the circuit court’s denial of his motion.

       For the foregoing reasons, we find no error in the circuit court’s February 8, 2017, order,
and we hereby affirm the same.


                                                                                        Affirmed.

ISSUED: June 16, 2017


CONCURRED IN BY:

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




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