                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



In re: J.H.                                                                      FILED
No. 16-0525 (Ohio County 15-CJA-114)
                                                                            November 21, 2016
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

                                 MEMORANDUM DECISION

        Petitioner Father S.H., by counsel Peter P. Kurelac III, appeals the Circuit Court of Ohio
County’s May 2, 2016, order terminating his parental rights to five-year-old J.H.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”),
Joseph J. Moses, filed a response on behalf of the children also in support of the circuit court’s
order. On appeal, petitioner argues that the circuit court erred in denying his motion for a post­
adjudicatory improvement period and terminating his parental rights to the children.

        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 October of 2015, the DHHR filed an abuse and neglect petition against petitioner and
the mother alleging that they engaged in domestic violence in the child’s presence and that the
mother abused drugs. The petition contained additional allegations that petitioner, the mother,
and the child were involved in a previous abuse and neglect proceeding based upon the same
issues of substance abuse and domestic violence. Petitioner was incarcerated at some point
during the previous abuse and neglect proceeding. According to the record, petitioner was
incarcerated for distribution of controlled substances sometime after the initiation of the first
abuse and neglect proceeding and remained incarcerated through the dispositional hearing in the
instant case. The mother successfully completed an improvement period and she was reunified
with the child. The child was removed from the home and placed with his maternal grandmother.

        In March of 2016, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the allegations as contained in the petition. Based upon petitioner’s stipulation, the
circuit court found that petitioner abused the child. The circuit court noted that petitioner “knows
       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


his circumstances have not changed since the last petition.” Subsequently, petitioner moved for a
post-adjudicatory improvement period.

        In April of 2016, the circuit court held a dispositional hearing and addressed petitioner’s
motion for a post-adjudicatory improvement period. Petitioner testified that he completed
domestic violence and crime victim awareness programs and parenting classes while
incarcerated. He also testified that he was due to be released from incarceration to a halfway
house in July of 2016. Petitioner blamed the mother for their history of domestic violence and
downplayed his role in the domestic violence, claiming that he “never hit a girl.” Petitioner
admitted to sending the mother “romantic” letters while incarcerated, despite the fact that they
both informed the DHHR that they were no longer romantically involved with each other. A
DHHR worker testified that petitioner has an extensive criminal history, including multiple
convictions for drug offenses and domestic violence offenses against the mother. By order
entered May 2, 2016, the circuit court denied petitioner’s motion for a post-adjudicatory
improvement period and found that an improvement period was not likely to remedy petitioner’s
parenting deficiencies. The circuit court also found that petitioner failed to prove that he would
participate in or complete an improvement period. The circuit court noted that petitioner has only
seen the child three times since August of 2014. The circuit court also found there was no
reasonable likelihood that the conditions of abuse and neglect could be corrected in the near
future and that it was in the child’s best interest to terminate petitioner’s parental rights. It is
from this order that petitioner now 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).

       To begin, petitioner argues that the circuit court erred in denying his motion for a post­
adjudicatory improvement period. In support of his argument, petitioner asserts that his motion
for a post-adjudicatory improvement period was denied because he was incarcerated. Petitioner
also asserts that he had an “anticipated release date” and completed various programs while
incarcerated. Upon our review, however, the Court finds that petitioner failed to satisfy the
applicable burden to obtain an improvement period. We have held that the decision to grant or

                                                 2


deny an improvement period rests in the sound discretion of the circuit court. See In re: M.M.,
236 W.Va. 108, 778 S.E.2d 338 (2015) (stating that “West Virginia law allows the circuit court
discretion in deciding whether to grant a parent an improvement period”); Syl. Pt. 6, in part, In re
Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (holding that “[i]t is within the court’s discretion
to grant an improvement period within the applicable statutory requirements”). We have also
held that a parent’s “entitlement to an improvement period is conditioned upon the ability of the
[parent] to demonstrate ‘by clear and convincing evidence, that the respondent is likely to fully
participate in the improvement period . . . .’” In re: Charity H., 215 W.Va. 208, 215, 599 S.E.2d
631, 638 (2004).

        Here, it is clear from the record that petitioner failed to demonstrate his ability to fully
participate in an improvement period. Petitioner has an extensive history of domestic violence,
incarceration, and substance abuse. The circuit court was presented with evidence that petitioner
failed to correct the conditions that led to the filing of second abuse and neglect petition, blamed
the mother for their history of domestic violence, and downplayed his role in the domestic
violence filing of the previous petition. Petitioner’s own admission that his circumstances had
not changed since the previous petition’s filing supports the circuit court’s finding that he was
unlikely to fully participate in an improvement period. It is clear from the record that petitioner
failed to accept responsibility for his actions and their impact on the child and moderated his role
in exposing the child to domestic violence, among other abuses. “Failure to acknowledge the
existence of the problem, i.e., the truth of the basic allegation pertaining to the alleged abuse and
neglect or the perpetrator of said abuse and neglect, results in making the problem untreatable
and in making an improvement period an exercise in futility at the child’s expense.” In re Timber
M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215 W.Va. 208,
217, 599 S.E.2d 631, 640 (2004)). As such, it is clear that petitioner failed to establish that he
was likely to fully participate in a post-adjudicatory improvement period and we find no error in
the circuit court denying petitioner’s motion.

        Petitioner’s second assignment of error is that the circuit court erroneously terminated his
parental rights based solely on his incarceration at the time of the dispositional hearing. Pursuant
to West Virginia Code § 49-4-604(6), circuit courts are directed to terminate parental rights upon
findings that there is no reasonable likelihood the conditions of abuse and neglect can be
substantially corrected in the near future and when necessary for the child’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[.]” We have also held that “[t]ermination . . . may be employed without the use of
intervening less restrictive alternatives when it is found that there is no reasonable likelihood . . .
that conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 7, in part, In re Katie
S., 198 W.Va. 79, 479 S.E.2d 589 (1996). Further, we have explained that incarceration may
support the termination of parental rights based on the analysis of a series of factors. See In re
Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (holding that “[a]lthough we have not adopted a per se
rule regarding the impact incarceration has on a termination of parental rights decision, we have
likewise not said that the facts surrounding a parent’s incarceration may never form the basis for
terminating parental rights.”). With regard to incarceration, we have held that



                                                  3


                [w]hen no factors and circumstances other than incarceration are raised at
        a disposition hearing in a child abuse and neglect proceeding with regard to a
        parent’s ability to remedy the condition of abuse and neglect in the near future,
        the circuit court shall evaluate whether the best interests of a child are served by
        terminating the rights of the biological parent in light of the evidence before it.
        This would necessarily include but not be limited to consideration of the nature of
        the offense for which the parent is incarcerated, the terms of the confinement, and
        the length of the incarceration in light of the abused or neglected child’s best
        interests and paramount need for permanency, security, stability and continuity.

Id. at 91, 717 S.E.2d at 875, Syl. Pt. 3.

         In the present case, the circuit court was clearly free to consider petitioner’s incarceration
as a basis for the termination of petitioner’s parental rights. The circuit court based its ruling on
petitioner’s incarceration and additional factors. In this case, prior to his termination, petitioner
had only seen the child three times in twenty-three months. Petitioner had a long history of drug
and domestic violence convictions and substance abuse, none of which had been remedied since
the filing of the previous petition. Notably, petitioner’s own admissions confirm his inability to
correct the conditions of abuse and neglect that led to the current petition’s filing. Given the
circumstances presented, there was no reasonable likelihood that the conditions of neglect could
be substantially corrected in the near future. Furthermore, the child required stability and
permanency. The circuit court also found that termination of his parental rights was necessary for
the child’s well-being. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are
directed to terminate parental rights upon these findings. For these reasons, we find no error in
the circuit court’s order terminating petitioner’s parental rights.

       For the foregoing reasons, the circuit court’s May 2, 2016, order terminating petitioner’s
parental rights to the children is hereby affirmed.

                                                                                            Affirmed.

ISSUED: November 21, 2016

CONCURRED IN BY:

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




                                                  4


