                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

In Re: G.W., P.W., A.W., & B.W.                                                      FILED
                                                                                  October 20, 2015
                                                                                RORY L. PERRY II, CLERK
No. 15-0465 (Mineral County 13-JA-12 through 13-JA-15)                        SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Father, by counsel Agnieszka Collins, appeals the Circuit Court of Mineral
County’s December 23, 2014, order terminating his parental rights to eleven-year-old G.W.,
nine-year-old P.W., six-year-old A.W., and five-year-old B.W. The Department of Health and
Human Resources (“the DHHR”), by counsel, Lee Niezgoda, filed a response in support of the
circuit court’s order. The guardian ad litem, Zelene Harman, 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 custody, adjudicating him as a neglectful parent,
terminating his post-adjudicatory improvement period, and 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 March of 2013, the DHHR received a referral from the Mineral County Sheriff’s
Office after deputies took emergency custody of the children after responding to two domestic
violence 911 calls at the home of the children’s mother, D.W., and her then-current boyfriend,
D.L. When the deputies arrived at D.W.’s home she was “unresponsive” and the children were
running around the home unsupervised. D.L. fled the residence and was considered to be armed
and dangerous. During the investigation, G.W. and P.W. told investigators that they witnessed
repeated acts of domestic violence and drug use. G.W. and P.W. also told investigators that D.W.
exposed them to sexual activities. G.W. and P.W. further stated that D.L. abused them and A.W.
and B.W. Finally, D.W. admitted to investigators that she abused alcohol and that the children
were unsafe when the deputies took emergency custody of the children. Several days later, the
DHHR filed a petition for abuse and neglect based upon the referral. Petitioner was initially
named as a non-abusing father because he lived in Allentown, Pennsylvania.


       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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       On June 18, 2013, the circuit court held a preliminary hearing. Petitioner participated by
telephone and waived his right to this preliminary hearing. The circuit court granted petitioner’s
motion for telephone visitation only and the DHHR’s motion to temporarily separate the siblings.
A multidisciplinary team (“MDT”) was conducted following the preliminary hearing during
which petitioner admitted that he had not seen his children since March of 2013, and that he is
required to register as a sex offender.2

        In August of 2013, petitioner moved for custody of his children, and his motion was
opposed by the DHHR and the guardian because petitioner lived in Pennsylvania; has not had
consistent contact with the children; and may not be able to financially, emotionally, or
physically support the children. By order entered August 28, 2013, the circuit court deferred
ruling on petitioner’s motion pending a psychological evaluation. Another MDT meeting was
conducted in January of 2014. Petitioner indicated to the MDT that he moved back to West
Virginia, but that he was unemployed and homeless. The guardian recommended that the DHHR
file an amended petition to include allegations of abuse and neglect against petitioner.

        In February of 2014, the DHHR filed an amended petition for abuse and neglect against
petitioner alleging that he failed to protect his children by leaving them in D.W.’s care. The
petition also alleged that petitioner abandoned his children.

        In May of 2014, petitioner stipulated that he abused and neglected the children based
upon his failure to protect the children from D.W. and D.L., and that he was unable or unwilling
to take the appropriate steps to remedy those issues. Thereafter, the circuit court granted
petitioner a post-adjudicatory improvement period. The circuit court held a series of status
hearings on the progress of petitioner’s post-adjudicatory improvement period. The parties
proffered to the circuit court that petitioner complied with the terms of his improvement period.
As such, the circuit court continued petitioner’s post-adjudicatory improvement period.

         In November of 2014, the circuit court held a dispositional hearing. The circuit court
heard testimony from several of petitioner’s service providers. Petitioner’s parenting provider
testified that petitioner was arrested because he failed to register as a sex offender. The provider
further testified that despite the fact that petitioner attended all of his parenting classes, he failed
to implement the skills to address the underlying issues of neglect, and failed to understand how
to protect his children from future harm. Petitioner’s visitation supervisor testified that petitioner
failed to properly supervise the children during visitation. Additional testimony corroborated that
petitioner failed to accomplish the goals of his improvement plan. The circuit court continued the
dispositional hearing until December 12, 2014. The parties presented additional testimony during
the continued dispositional hearing. A Child Protective Services worker testified that petitioner’s
housing situation was uncertain. A Court Appointed Special Advocates (“CASA”) worker
testified that despite participating in parenting classes, petitioner has “been unable to control or
parent his children effectively” and “incapable” of parenting his children. Based on the evidence
presented, the circuit court found that petitioner failed to adequately solve the problems of abuse
       2
        Petitioner was convicted of a third-degree sexual offense with a female victim between
the ages of thirteen and seventeen in the State of Maryland. Petitioner served approximately
eight months in prison. Petitioner was then given four years of probation.

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despite the lengthy improvement period. Given those findings, the circuit court concluded that
petitioner could not substantially correct the conditions of neglect in the near future and that
termination was necessary for the children’s welfare. By order entered December 23, 2014, the
circuit court terminated petitioner’s parental rights to the children. 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).

        On appeal, petitioner first assigns error to the circuit court’s order denying his motion for
custody of the children. While petitioner asserts that he was a non-abusing parent, and, therefore,
entitled to the physical and legal custody of the child, we have explained that

              “[a] parent has the natural right to the custody of his or her infant child
       and, unless the parent is an unfit person because of misconduct, neglect,
       immorality, abandonment or other dereliction of duty, or has waived such right, or
       by agreement or otherwise has transferred, relinquished or surrendered such
       custody, the right of the parent to the custody of his or her infant child will be
       recognized and enforced by the courts.” Syl. Pt. [sic] Whiteman v. Robinson, 145
       W.Va. 685, 116 S.E.2d 691 (1960).

Syl. Pt. 1, Honaker v. Burnside, 182 W.Va. 448, 388 S.E.2d 322 (1989). Moreover, the guiding
principle in all matters concerning child custody is the best interests of the child. “‘Although
parents have substantial rights that must be protected, the primary goal in cases involving abuse
and neglect, as in all family law matters, must be the health and welfare of the children.’ Syl. Pt.
3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W .Va.
44, 743 S.E.2d 352 (2013); “[t]he best interests of the child[ren] is the polar star by which
decisions must be made which affect children.” Michael K.T. v. Tina L.T., 182 W.Va. 399, 405,
387 S.E.2d 866, 872 (1989) (internal citations omitted).




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        Upon our review of the record on appeal, the Court finds no error in the circuit court’s
order denying petitioner’s motion for custody of the child. The evidence before the circuit court
established that petitioner was an unfit parent due to the uncontested fact that petitioner had not
seen his children for approximately five months prior to making his motion for custody, that he
was a registered sex offender, and that he had never been the children’s full-time custodial
parent. Importantly, a home study revealed that petitioner was “not physically prepared to
assume custody of the children” and that petitioner expected to be homeless in the near future.
Based on the facts of this case, we find no error in this regard.

        Next, petitioner argues that the circuit court erred in adjudicating him as a neglectful
parent. Simply put, there is no merit to petitioner’s argument that the circuit court erred in
adjudicating petitioner as a neglectful parent. In support of this assignment of error, petitioner
argues that there was not clear and convincing evidence that he neglected his children. West
Virginia Code § 49-1-3(11)(A) a “‘neglected child’ means a child [w]hose physical or mental
health is harmed or threatened by a present refusal, failure or inability of the child's parent . . . to
supply the child with necessary . . . supervision[.]” It is undisputed that petitioner freely and
voluntarily stipulated that he neglected his children based upon his failure to protect his children
from D.W. and D.L., and that he was unable or unwilling to take the appropriate steps to remedy
those issues. See Rule 26 of the Rules of Procedure for Child Abuse and Neglect Proceedings
(stating that “[b]efore accepting a stipulated . . . adjudication, the court shall determine that the
parties . . . voluntarily consent, and that the stipulation . . . meets the purposes of these rules and
controlling statute and is in the best interests of the child”). Based on petitioner’s voluntary
stipulation, we find no error.

         Next, petitioner argues that the circuit court erred in terminating his post-adjudicatory
improvement period. Petitioner’s argument on this issue ignores controlling statutory law
regarding abuse and neglect proceedings. Specifically, West Virginia Code § 49-6-12(b) grants
circuit courts discretion in granting post-adjudicatory improvement periods, but specifically
states that such improvement periods are “not to exceed six months[.]” In the instant matter,
petitioner’s improvement period began on May 27, 2014, and expired on November 27, 2014.
The circuit court appropriately continued petitioner’s improvement period based upon his
compliance until its natural expiration on November 27, 2014. Thereafter, the circuit court held
its final dispositional hearing past the improvement period’s expiration on December 12, 2014.
Simply put, the circuit court did not terminate petitioner’s improvement period, it naturally
expired on November 27, 2014.

       Moreover, West Virginia Code § 49-6-12(g) provides that

       [a] court may extend any improvement period granted . . . for a period not to
       exceed three months when the court finds that the [parent] 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 such extension is otherwise consistent with
       the best interest of the child.

We have also held that the word “may” is permissive and connotes discretion. See Gebr.
Eickhoff Maschinenfabrik Und Eisengieberei mbH v. Starcher, 174 W.Va. 618, 626 n. 12, 328

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S.E.2d 492, 500 n. 12 (1985) (“An elementary principle of statutory construction is that the word
‘may’ is inherently permissive in nature and connotes discretion.” (citations omitted)). While
petitioner argues that he substantially complied with the terms and conditions of his
improvement period, that is just one factor to be considered. See Syl. Pt. 4, in part, In re: B.H.
and S.S., 233 W.Va. 57, 754 S.E.2d 743 (2014) (holding that “the level of a parent’s compliance
with the terms and conditions of an improvement period is just one factor to be considered. The
controlling standard that governs any dispositional decision remains the best interests of the
child”). While it is true that petitioner completed parenting classes, the record is clear that
petitioner failed to implement skills taught in those classes, failed to properly supervise the
children during supervised visitation, gave G.W. a MP3 player loaded with music that contained
explicit language, and failed to acknowledge how he could prevent future neglect. Further, as
noted above, whether to grant a motion for an extension of an improvement period is a matter
within the sound discretion of the circuit court. For these reasons, we find no error.

        Finally, petitioner argues that the circuit court erred in terminating his parental rights
when he substantially complied with his improvement period and that termination not in the
children’s best interests. Pursuant to West Virginia Code § 49-6-5(b)(3), a respondent parent’s
failure to respond or follow through with a reasonable family case plan or other rehabilitative
efforts constitutes circumstances in which there is no reasonable likelihood that the conditions of
abuse or neglect can be substantially corrected. Further, West Virginia Code § 49-6-5(a)(6)
expressly provides for termination “upon a finding that there is no reasonable likelihood that the
conditions of neglect or abuse can be substantially corrected in the near future” (emphasis
added) and when necessary for the child’s welfare. The record clearly demonstrates that
petitioner had approximately seven months to substantially correct the conditions that led to the
abuse and neglect. However, he failed to do so. Although petitioner argues that he substantially
complied with his improvement period, the record on appeal reveals that petitioner failed to
implement many of the skills taught in those classes. A CASA worker testified that despite
participating in parenting classes, petitioner has “been unable to control or parent his children
effectively” and “incapable” of parenting his children. As we recently held, “[i]n making the
final disposition in a child abuse and neglect proceeding, the level of a parent’s compliance with
the terms and conditions of an improvement period is just one factor to be considered. The
controlling standard that governs any dispositional decision remains the best interests of the
child.” Syl. Pt. 4, In re: B.H. and S.S., 233 W.Va. 57, 754 S.E.2d 743 (2014).Therefore, we find
no error in the circuit court’s finding that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.




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ISSUED: October 20, 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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