                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

In re T.H.-1, A.H.-1, B.P., and A.H.-2.

No. 18-0536 (Randolph County 2016-JA-109, 2016-JA-110, 2016-JA-111, and 2016-JA-112)


                              MEMORANDUM DECISION
        Petitioner Father T.H.-2, by counsel G. Phillip Davis, appeals the Circuit Court of
Randolph County’s April 10, 2018, order terminating his parental rights to T.H.-1, A.H.-1, B.P.,
and A.H.-2.1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel Lee Niezgoda, filed a 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 in support of
the circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating
his parental rights instead of utilizing 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.

        On December 1, 2016, the DHHR filed an abuse and neglect petition against petitioner
and the mother. According to the DHHR, there was a prior abuse and neglect petition filed
against the parents in 2012. However, the parents completed their post-adjudicatory
improvement periods and the petitions against them were dismissed. Following the 2012
proceedings, a Child Protective Services (“CPS”) case was opened due to the parents’ substance
abuse, but they complied with services and no abuse and neglect petition was filed. Thereafter,
an additional CPS case was opened following continued substance abuse and physical, mental,
and emotional abuse of the children. On November 25, 2016, the police were called to the home
following a domestic dispute between the parents. Upon investigation, the police found the home
to be in a dangerous condition due to unsafe heaters, a cockroach infestation, and illegal drugs in
plain sight. Both parents were arrested at that time.

       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 and two of the other children share the same initials, they will be referred
to as T.H.-1, T.H.-2, A.H.-1, and A.H.-2, respectively, throughout this memorandum decision.


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        On December 27, 2016, the circuit court held an adjudicatory hearing. Petitioner
stipulated to the allegations of abuse and neglect and moved for a post-adjudicatory
improvement period. The circuit court later granted petitioner’s motion in March of 2017, over
the guardian’s objection. In May of 2017, the circuit court held a review hearing during which
the DHHR reported that petitioner tested positive for methamphetamine and opiates on April 21,
2017. However, the circuit court ordered that petitioner’s improvement period continue.
Petitioner’s post-adjudicatory improvement period was extended in July of 2017. In August of
2017, the DHHR informed the circuit court that petitioner continued to test positive for illegal
substances and was inconsistent in visiting the children. Despite testing positive for substances,
the circuit court granted petitioner an additional extension of his post-adjudicatory improvement
period. However, in February of 2018, petitioner stopped submitting to random drug screening
and was unable to visit with the children due to the missed screens. In March of 2018, the DHHR
filed a motion to terminate petitioner’s parental rights.

        On March 27, 2018, the circuit court held a dispositional hearing. Petitioner arrived to the
hearing over ninety minutes late, but was represented by counsel for the entire hearing. He
moved for a post-dispositional improvement period, which the circuit court denied due to his
failure to comply with his post-adjudicatory improvement period. The DHHR presented evidence
that petitioner tested positive for multiple illegal substances throughout his post-adjudicatory
improvement period. Additionally, evidence was presented that petitioner was unable to provide
a safe home for the children despite several months of services. In its order, the circuit court
noted that petitioner continued to abuse substances, failed to maintain appropriate housing, and
was unable to demonstrate that he possessed adequate parenting skills. The circuit court found no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect in the near future and that the termination of his parental rights was in the children’s best
interests. The circuit court also found that the termination of petitioner’s parental rights was the
least-restrictive dispositional alternative. Ultimately, the circuit court terminated petitioner’s
parental rights in its April 10, 2018, dispositional order.2 It is from this 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

       2
         According to the parties, the mother’s parental rights were also terminated. Additionally,
B.P.’s biological father’s parental rights were terminated in 2014. T.H.-1, A.H.-2, and B.P. are
placed together in a foster home with the permanency plan of adoption in that home. A.H.-1 is in
a different foster home, and the permanency plan for her is adoption in that home.

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       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, this Court
finds no error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred in terminating his parental rights
instead of utilizing a less-restrictive dispositional alternative. In support, petitioner asserts that
“for the most part, [petitioner] physically participated in the elements of the improvement
period.” He also asserts that he could benefit from a less-restrictive dispositional alternative. We
do not find this argument persuasive. West Virginia Code § 49-4-604(b)(6) provides that circuit
courts are 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 children’s welfare. West Virginia Code § 49-4-604(c)(3)
provides that a situation in which there is no reasonable likelihood the conditions of abuse and
neglect can be substantially corrected includes one in which the abusing parent “ha[s] 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[.]”

        Here, petitioner fails to acknowledge that he continued to abuse multiple illegal
substances during the proceedings and that he was unable to visit the children due to his positive
screens and his failure to attend screens starting in February of 2018. Further, he fails to
acknowledge that he was unable to provide the children with a safe and appropriate home,
despite months of services. While he argues that he participated in his post-adjudicatory
improvement period, petitioner clearly did not benefit from the services offered. Due to
petitioner’s continued abuse of substances, failure to maintain appropriate housing for the
children, and failure to demonstrate adequate parenting skills, it is clear that there was no
reasonable likelihood that he could substantially correct the conditions of abuse and neglect in
the near future and that the termination of his parental rights was in the children’s best interests.

       Moreover, we have held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W.Va. Code [§]
       49-6-5 [now 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 W.Va. Code [§] 49-6-5(b) [now 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). For these reasons, the
termination of petitioner’s parental rights was appropriate.



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       For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 10, 2018, dispositional order is hereby affirmed.


                                                                                      Affirmed.




ISSUED:


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment




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