                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


                                                                                FILED
In re: M.H.-1 and C.S.                                                     November 22, 2017
                                                                             EDYTHE NASH GAISER, CLERK
No. 17-0547 (Randolph County 17-JA-019 & 17-JA-024)                          SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Father B.S., by counsel J. Brent Easton, appeals the Circuit Court of Randolph
County’s May 16, 2017, order terminating his parental rights to M.H.-1 and C.S.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 also in support of the circuit court’s
order. On appeal, petitioner argues that the circuit court erred in denying his motion for an
improvement period and in terminating his parental rights.

        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 2017, the DHHR filed an abuse and neglect petition against M.H.-1’s
mother, M.H.-2, alleging abuse and neglect based on M.H.-2’s two prior involuntary
terminations. The petition also alleged that, when M.H.-1 was born, the mother represented to
the hospital that she was acting as a surrogate for a couple. Following the child’s birth, the
mother admitted to hospital staff that petitioner was the father of the child and not the proposed
adoptive father, as she previously stated. Petitioner was initially named as the “unknown father”
in the petition due to the mother’s different assertions regarding the child’s paternity. The
petition further alleged that petitioner was incarcerated following a probation revocation for an
unrelated misdemeanor conviction due to his substance abuse issues and failed drug screens.
According to the petition, petitioner was also in arrears in child support payments for C.S. Later,

       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 the mother
share the same initials, we will refer to the child as M.H.-1 and the mother as M.H.-2 throughout
this memorandum decision.



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in March of 2017, the DHHR filed an amended petition alleging that petitioner, as confirmed by
genetic testing, was M.H.-1’s biological father. The petition also alleged that he abused the
children due to his drug abuse; that he was impaired during his interview with the DHHR’s
caseworker; and that he and the mother engaged in domestic violence.

         In April of 2017, the circuit court held an adjudicatory hearing at which petitioner
stipulated that he had a history of substance abuse, engaged in domestic violence, and was in
arrears on his child support obligation. Petitioner was adjudicated as an abusing parent and filed
a motion for a post-adjudicatory improvement period. The circuit court took petitioner’s motion
under advisement, ordered that he submit to periodic random drug screening, and granted him
visitation with the children. On April 28, 2017, the DHHR moved to terminate petitioner’s
parental rights based on his failure to submit to random drug screening and to visit the children.
Petitioner submitted to only two drug screens and failed both for illicit substances.

        In May of 2017, the circuit court held a dispositional hearing upon the DHHR’s motion to
terminate petitioner’s parental rights. At the hearing, petitioner minimized the stipulations that he
made at the adjudicatory hearing; denied any history of drug abuse, despite two failed drug
screens; and claimed that he was not able to visit his children because of his work schedule. He
admitted to failing to pay his child support obligation. The DHHR case worker testified that
when she met with petitioner to conduct an assessment regarding his case, he appeared to be
under the influence of drugs and fell asleep three times during the interview. The case worker
also testified that petitioner made no effort to visit M.H.-1 since her birth or to pay his child
support obligation. Additionally, C.S.’s mother, G.H., testified that petitioner had not visited C.S.
for over a year. The circuit court denied petitioner’s motion for an improvement period and
found that he failed to prove by clear and convincing evidence that he would likely fully
participate in the same. The circuit court also found that there was no reasonable likelihood that
petitioner could substantially correct the conditions of abuse and neglect in the near future,
noting that he “failed to meaningfully acknowledge those conditions despite the stipulations he
made at the adjudicatory hearing.” The circuit court entered an order on May 16, 2017, denying
petitioner’s motion for a post-adjudicatory improvement and terminating his parental rights to
the children.2

       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,
       2
        Petitioner’s parental rights to both children were terminated below. According to the
guardian, M.H.-1’s biological mother, M.H.-2’s, rights were also terminated below. M.H.-1 was
placed in a foster home and the permanency plan is adoption into that home. Further, C.S.
remains in the home of her non-offending, biological mother, G.H., and the permanency plan is
to remain in that home.

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       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 argues that the circuit court erred in denying his motion for a post­
adjudicatory improvement period. First, petitioner argues that the circuit court erred in its
“cursory finding that his history of substance abuse, verbal domestic violence, and child support
arrearage could not be successfully corrected.” We do not agree. We have often noted 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) (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 [parent] 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 admitted that he had a history of substance
abuse, but claims that he has no current substance abuse issues. However, the circuit court was
presented with evidence that petitioner submitted to only two random drug screens, both of
which were positive for illicit substances. Petitioner also admitted that he failed to participate in
the court-ordered drug screens, even though he knew that clean drug screens were a prerequisite
to visitation with the children. He also admitted that if he submitted to the required drug screens
they might have been positive for Suboxone, Xanax, and marijuana. As such, it is clear that
petitioner failed to establish that he was likely to fully participate in a post-adjudicatory
improvement period. Accordingly, we find the circuit court did not err in denying petitioner’s
motion after a post-adjudicatory improvement period.

       Moreover, the circuit court found that petitioner failed to remedy the conditions of abuse
and neglect in the home. These findings were based on substantial evidence, including evidence
that petitioner failed to fully participate in random drug screening and that he continued to
engage in domestic violence. Pursuant to West Virginia Code § 49-4-604(c)(3), a situation in
which there is no reasonable likelihood that the conditions of abuse and neglect can be
substantially corrected includes one in which

       [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

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       abuse or neglect of the child, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child .
       ...

       Based upon the considerable evidence outlined above, the circuit court found that there
was no reasonable likelihood that petitioner could substantially correct the conditions of abuse
and neglect because, according to the circuit court, he was “unwilling or unable to provide
adequately for the children’s needs” and failed to visit with the children for approximately one
year due to his non-compliance. The circuit court further found that termination of petitioner’s
parental rights was necessary for the children’s welfare. Pursuant to West Virginia Code § 49-4­
604(b)(6), circuit courts are directed to terminate a parent’s parental rights upon such findings.

        Accordingly, for the foregoing reasons, we find no error in the decision of the circuit
court, and its May 16, 2017, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: November 22, 2017


CONCURRED IN BY:

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




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