                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: D.W., Jr., & S.W.
                                                                                     FILED
                                                                                November 23, 2015
                                                                                RORY L. PERRY II, CLERK
No. 15-0667 (Mercer County 13-JA-460 & 13-JA-461)                             SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

                              MEMORANDUM DECISION

        Petitioner Father D.W., by counsel John E. Williams, Jr., appeals the Circuit Court of
Mercer County’s June 24, 2015, order terminating his parental rights to D.W., Jr., and S.W. The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans,
filed its response in support of the circuit court’s order. The guardian ad litem (“guardian”),
Thomas L. Fuda, filed a response on behalf of the children that supported the circuit court’s
order. On appeal, petitioner alleges that the circuit court erred in denying his motion to extend
his post-adjudicatory improvement period, and in terminating his parental rights.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 October of 2013, the DHHR filed an abuse and neglect petition alleging that D.W., Jr.,
and S.W. were truant from school. The petition contained additional allegations that the children
were also tardy from school without excuses. The petition was later amended to include
allegations of substance abuse and domestic violence.

        In January of 2014, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the allegations in the petition and to neglecting his children “by virtue of substance
abuse or domestic violence.” The circuit court accepted the stipulation and petitioner was
adjudicated as neglecting his children. Petitioner made a motion for a post-adjudicatory
improvement period which the circuit court granted. The terms of the improvement period
included detoxification and long-term in-patient treatment for substance abuse, individualized
parenting classes, life skills classes, and home maintenance classes. Petitioner was also ordered
to submit to random substance abuse screenings at least two times per week.


       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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        In March of 2014, the circuit court held a status hearing at which the DHHR reported that
petitioner had completed applications for substance abuse detoxification treatment programs, that
he had participated in all random substance abuse screenings, and that his visits with the children
were going well. The circuit court extended petitioner’s improvement period. Petitioner
continued to comply with the terms of his improvement period until March of 2015. In March of
2015, the circuit court held a status hearing at which the DHHR reported that petitioner was not
complying with the terms of his improvement period. Specifically, petitioner was not visiting the
children consistently and there was no electricity at his home. The circuit court set the matter for
disposition.

        In June of 2015, the circuit court held a dispositional hearing2 and noted that the case had
been pending for approximately eighteen months. The DHHR reported that petitioner refused to
submit to random substance abuse screenings, that petitioner was not complying with in-home
services, and that he did not successfully complete any substance abuse treatment program. The
DHHR also reported that petitioner did not have electricity in his home and several of the
windows in the home were broken or missing. The DHHR also informed the circuit court that
petitioner and the children were bonded. At the close of the hearing, the circuit court found that
petitioner failed to comply with the terms of his improvement period. The circuit court also noted
that petitioner did not have a home in which the children could safely live. The circuit court
terminated petitioner’s parental rights by order entered June 24, 2015. 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
       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’s termination of petitioner’s parental rights. While, petitioner argues
that the circuit court erred in terminating his parental rights because he had a bond with his

       2
        Because the dispositional hearing in this matter took place after 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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children, the Court finds that the circuit court properly terminated petitioner’s parental rights
upon a finding that he could not substantially correct the conditions of abuse and neglect.
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]
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.” The circuit court specifically made this finding in
regard to petitioner, based upon the evidence of his non-compliance with the circuit court’s
orders and his failure to correct the conditions of abuse and neglect.

        The circuit court’s findings as to petitioner’s non-compliance included his refusal to
submit to substance abuse screenings, his non-compliance with in-home services, and his failure
to successfully complete any substance abuse treatment program. Petitioner testified that he had
electricity for “awhile” but that was because he had “a cord running” to his mother’s home and
he used her electricity. He also testified that he was not in compliance with his substance abuse
treatment and noted that he “missed more than he had done.” The evidence established that,
approximately three weeks prior to the dispositional hearing, petitioner’s home had no beds for
the children. The circuit court also found that petitioner did not have electricity in the home and
that several of the windows in the home were broken or missing, which made the home
uninhabitable for the children. Based on this evidence, the circuit court correctly found that
petitioner did not comply with the terms of his improvement period.

       As noted above, the circuit court was presented with sufficient evidence to find that there
was no reasonable likelihood that petitioner could substantially correct the conditions of abuse
and neglect and that termination was necessary for the children’s welfare. Pursuant to West
Virginia Code § 49-4-604(6), circuit courts are directed to terminate parental rights upon these
findings. We have also held as follows:

               “Termination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49-6-5 . . . 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) . . . 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). Because the circuit court was
presented with sufficient evidence to find that there was no reasonable likelihood that petitioner
could substantially correct the conditions of abuse and neglect, termination of his parental rights
to both children was not error.

        Petitioner further argues that the circuit court erred in denying his motion for an
extension of his post-adjudicatory improvement period. Specifically, petitioner contends that an
extension would allow him to correct the conditions of abuse and neglect. Upon our review, the
Court finds that petitioner was not entitled to an extension on his improvement period because
the circuit court properly terminated petitioner’s parental rights upon a finding that he could not
substantially correct the conditions of abuse and neglect.

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       West Virginia Code § 49-4-610(6) provides that

       “[a] court may extend any improvement period granted pursuant to subdivision
       (2) or (3) of this section for a period not to exceed three months when the court
       finds that the respondent has substantially complied with the terms of the
       improvement period; that the continuation of the improvement period will not
       substantially impair the ability of the department to permanently place the child;
       and that the extension is otherwise consistent with the best interest of the child.”

However, that alternative is not available where a circuit court determines that there is no
reasonable likelihood that the conditions of abuse and neglect abuse can be substantially
corrected in the near future. In re Emily, 208 W.Va. 325, 336, 540 S.E.2d 542, 553 (2000)
(holding that “a dispositional improvement period is not available to a respondent parent where a
finding is made pursuant to W. Va. Code 49-6-5(a)(6) (1977) that there is no reasonable
likelihood that the conditions of neglect or abuse can be substantially corrected in the near future.
. . . “) (internal citations omitted).

        The circuit court correctly found that this case had been pending for approximately
eighteen months and petitioner failed to comply with the terms of his improvement period.
Petitioner refused to submit to random substance abuse screenings, did not complying with in-
home services, did not successfully complete any substance abuse treatment program, and failed
to make his home habitable for the children. Accordingly, we find that petitioner was not entitled
to an extension of his improvement period based on the evidence above.

        For these reasons, the circuit court’s termination of petitioner’s parental rights was not
error. For the foregoing reasons, the circuit court’s June 24, 2015, termination 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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