                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                     FILED
                                                                                 March 13, 2020
In re J.M.,                                                                     EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
No. 19-0548 (Randolph County 2018-JA-127)



                               MEMORANDUM DECISION



        Petitioner Father K.H., by counsel Steven B. Nanners, appeals the Circuit Court of
Randolph County’s May 16, 2019, order terminating his parental rights to J.M.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a response
in support of the circuit court’s order and a supplemental appendix. The guardian ad litem, Melissa
T. Roman, filed a response on behalf of the child in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in denying his request for an improvement period and
terminating his parental rights without imposing a less-restrictive dispositional alternative.

       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 2018, the DHHR filed an abuse and neglect petition against petitioner and
J.M.’s mother due to petitioner’s prior involuntary termination of parental rights to an older child
in July of 2018 and the mother’s inability to “provide necessary safety and supervision of the
child.” The petition alleged that the parents’ conduct constituted an imminent danger to the child
because of petitioner’s “violent and abusive” behavior to the mother during their relationship. The
petition further alleged that in June of 2018, when the mother was five months pregnant with J.M.,
petitioner “engaged in a very serious domestic attack” against her and the then-unborn child.
Specifically, petitioner used “a piece of a door jam that had a nail in it” while “he was fairly


       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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inebriated” to strike the mother repeatedly, resulting in her hospitalization. On October 19, 2018,
the circuit court held a preliminary hearing and ratified the child’s removal from petitioner’s
custody. Criminal charges were pending against petitioner at the time of the hearing, and he was
later convicted of unlawful assault for the attack. He then remained incarcerated throughout the
remainder of the proceedings. He was, however, represented by counsel at all stages of the
underlying proceedings.

        At the adjudication hearing in March of 2019, the circuit court took judicial notice that
petitioner’s parental rights to an older child were terminated in July of 2018 and that petitioner had
pled guilty to unlawful assault for his attack on the mother and the unborn child and was awaiting
sentencing. With the prior termination of petitioner’s parental rights and the new conviction for
unlawful assault, the circuit court found there to be “aggravated circumstances.” Based upon
petitioner’s continued violent behavior and aggravated circumstances, the circuit court found that
petitioner failed to remedy the conditions of abuse and neglect from the prior termination and
adjudicated him as an abusing and neglecting parent.

        The circuit court held a final dispositional hearing in April of 2019. At the hearing,
petitioner requested a less-restrictive dispositional alternative, but the circuit court denied the
request. The circuit court considered petitioner’s prior termination of parental rights; his substance
abuse; his history of anger management problems and domestic violence; and his inability to care
for the child. Ultimately, the circuit court concluded that there was no reasonable likelihood that
the conditions of abuse and neglect could be substantially corrected in the near future, and that it
was in the best interest of the child to terminate petitioner’s parental rights. Accordingly, the court
terminated petitioner’s parental rights by its May 16, 2019, order.2 It is from this 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).



       2
        J.M.’s mother successfully participated in an improvement period and was reunified
with J.M. As such, the permanency plan has been achieved by placement of J.M. in her care.
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        On appeal, petitioner alleges that the circuit court erred in denying his motion for a post-
adjudicatory improvement period. Notably, petitioner does not argue that the circuit court’s finding
that “multiple aggravated circumstances exist” was clearly erroneous. Instead, petitioner
acknowledges that the decision to grant or deny an improvement period rests in the sound
discretion of the circuit court. See In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015).

       In support of his motion for an improvement period, petitioner argued that he would have
improved through counseling and treatment provided by the Division of Corrections and
Rehabilitation during his incarceration and additional counseling from the DHHR once released
from incarceration. In light of these speculative improvements, he argues that the circuit court
should have granted him a post-adjudicatory improvement period. He asserts “he could [have]
compl[ied] with the issues raised.” Namely, “any drinking issues could [have] be[en] addressed
with counseling, [and] anger issues could [have] be[en] addressed with anger management
counseling.”

        West Virginia Code § 49-4-610(2)(B) provides that the circuit court may grant a parent 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.” “This Court
has explained that ‘an improvement period in the context of abuse and neglect proceedings is
viewed as an opportunity for the miscreant parent to modify his/her behavior so as to correct the
conditions of abuse and/or neglect with which he/she has been charged.’” In re Kaitlyn P., 225 W.
Va. 123, 126, 690 S.E.2d 131, 134 (2010) (citation omitted). However, the circuit court has
discretion to deny an improvement period when no improvement is likely. In re Tonjia M., 212 W.
Va. 443, 448, 573 S.E.2d 354, 359 (2002). While petitioner contends that nothing precluded the
circuit court from granting him an improvement period in this case, there is no evidence he would
comply with an improvement period. Accordingly, we find no error in the circuit court’s denial of
his motion.

        Next, petitioner alleges that the circuit court erred in terminating his parental rights. In
support, petitioner claims that the circuit court failed to make any specific findings as to whether
the conditions of neglect could be substantially corrected in the near future. Petitioner argues that
the circuit court’s termination of his rights was premature as he “has demonstrated he would
comply with an [i]mprovement [p]eriod.” Further, petitioner alleges a less-restrictive dispositional
alternative should have been imposed pursuant to West Virginia Code § 49-4-604(b)(5), which
provides, in part,

       [u]pon a finding that the abusing parent or battered parent or parents are presently
       unwilling or unable to provide adequately for the child’s needs, [a circuit court
       may] commit the child temporarily to the care, custody, and control of the state
       department, a licensed private child welfare agency, or a suitable person who may
       be appointed guardian by the court.

The evidence, however, supports the termination of petitioner’s parental rights.

       West Virginia Code § 49-4-604(b)(6) permits a circuit court to terminate parental rights
upon findings that “there is no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected in the near future” and that termination is necessary for the welfare of the
                                                 3
child. Additionally, pursuant to West Virginia Code § 49-4-604(c) “‘[n]o reasonable likelihood
that conditions of neglect or abuse can be substantially corrected’ means that, based upon the
evidence before the court, the abusing adult or adults have demonstrated an inadequate capacity to
solve the problems of abuse or neglect on their own or with help.”

        With these parameters in mind, the record supports the circuit court’s finding that there
was no reasonable likelihood petitioner could substantially correct the conditions of neglect, given
his untreated alcohol addiction and anger management issues. While it is true that petitioner may
be able to undergo some treatment in the future for his substance abuse and anger management,
such possible improvement was based on pure speculation. Petitioner claims that he should have
been granted a less-restrictive disposition because he might eventually be able to correct the
conditions of abuse and neglect, but 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.” Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4,
in part (citation omitted). As such, it is clear in the circuit court’s findings that there was no
reasonable likelihood the conditions of abuse and neglect could have been substantially corrected
in the near future and that termination was necessary for the child’s welfare.

        While petitioner argues that the circuit court should have employed a less-restrictive
dispositional alternative, we have held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [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 [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). Accordingly, we find no error
in the decision of the circuit court, and its May 16, 2019, order is hereby affirmed.


                                                                                           Affirmed.


ISSUED: March 13, 2020


CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

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