                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: L.W., K.W., and R.P.                                                         FILED
No. 16-1068 (Jackson County 16-JA-20, 16-JA-21, & 16-JA-25)
                                                                                 June 16, 2017
                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

                              MEMORANDUM DECISION
        Petitioner Father T.W., by counsel Ryan M. Ruth, appeals the Circuit Court of Jackson
County’s October 12, 2016, order terminating his parental rights to L.W., K.W., and R.P.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”), Erica Brannon Gunn, 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 denying his
request for a post-adjudicatory improvement period.

        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 2016, the DHHR filed an abuse and neglect petition against petitioner and
his girlfriend, B.S.2 Specifically, the petition alleged that K.W. was born drug-addicted and that
B.S. abused drugs during her pregnancy. The petition also alleged that petitioner failed to protect
L.W. and K.W. from B.S.’s drug use in the home. An amended petition further alleged that
petitioner’s own drug abuse affected his ability to properly parent the children and lead to R.P.’s
abandonment.

        In May of 2016, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the allegations in the petition and the circuit court adjudicated him as an abusing
parent. Specifically, petitioner admitted that his substance abuse negatively affected his ability to
parent the children, that he failed to protect his children from drug use in the home, and that he
attempted to conceal information from the DHHR regarding R.P. Following the adjudicatory

       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).
       2
           B.S. is the mother of L.W. and K.W.
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hearing, petitioner filed a motion for a post-adjudicatory improvement period. Subsequently, a
multi-disciplinary team (“MDT”) held two meetings wherein the MDT agreed that petitioner
should be granted an improvement period with the following conditions: that he enter an in­
patient drug rehabilitation treatment program and submit to random drug screening as a
prerequisite for visitation with the children.

         In August of 2016, the DHHR filed a notice of intent to recommend the termination of
petitioner’s parental rights. Also in August of 2016, the circuit court held a dispositional hearing
wherein it addressed petitioner’s motion for a post-adjudicatory improvement period and the
DHHR’s motion to terminate his parental rights. A DHHR worker testified that, during the
pendency of the case, petitioner tested positive for amphetamines, methamphetamines,
buprenorphine, and benzodiazepines approximately sixteen times and failed to submit to a drug
screen on approximately twenty-five occasions. The worker also testified that, as a result of his
missed and positive drug screens, petitioner had not visited with the children. The worker further
testified that petitioner failed to attend an in-patient drug rehabilitation treatment program and
did not attempt to enroll in such a program until the two-week period prior to the dispositional
hearing. Petitioner admitted that he did not enroll in an in-patient drug rehabilitation treatment
program and that he used methamphetamines “four to five days” prior to the dispositional
hearing. He also admitted that he was “in denial about the extent of his drug usage” and testified
that he was working with a parenting coach, attending Narcotics Anonymous meetings, and was
on a waiting list for a detoxification program at the Prestera Center. Based on the evidence
presented, by order entered on October 12, 2016, the circuit court found that there was no
reasonable likelihood petitioner could substantially correct the conditions of abuse and neglect,
terminated his parental rights to the children, and denied his motion for a post-adjudicatory
improvement period.3 It is from that order that petitioner appeals.4

        The Court has previously established the following standard of review in a case such as
this one:

              “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,

       3
        The parental rights of both biological parents of L.W. and K.W. were terminated below.
The guardian states that L.W. and K.W. were placed in the home of their paternal grandmother
and the permanency plan is adoption into that home. Additionally, petitioner’s parental rights to
R.P. were terminated below. E.P., the non-offending mother of R.P., retained her parental rights
because there were no allegations of abuse and neglect against her. According to the guardian,
R.P. currently resides with her non-offending mother with a permanency plan to remain in the
home.
       4
         On appeal, petitioner does not raise a specific assignment of error regarding the circuit
court’s termination of his parental rights.
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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).

        Upon our review, the Court finds no error in the circuit court’s denial of petitioner’s
motion for a post-adjudicatory improvement period, which is his sole argument on appeal. In
support of his argument, petitioner asserts that he established that he was likely to fully
participate in an improvement period as evidenced by his acknowledgement that he had a
substance abuse problem. Upon our review, however, the Court finds that petitioner failed to
satisfy the applicable burden to obtain an improvement period. Regarding whether an
improvement period should be granted, 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, 778 S.E.2d 338 (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 [he] 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 has an extensive history of drug abuse. The
circuit court was presented with evidence that petitioner continued to abuse drugs throughout the
underlying proceedings and failed to enroll in an in-patient drug rehabilitation treatment
program. According to the record, petitioner tested positive for amphetamines,
methamphetamines, buprenorphine, and benzodiazepines during the underlying proceedings.
Petitioner’s own testimony that he was abusing drugs just days before the dispositional hearing
supports the circuit court’s finding that he was unlikely to make a meaningful change with regard
to his substance abuse and parenting issues. It is clear from the record that petitioner failed to
establish that he was likely to fully participate in a post-adjudicatory improvement period and we
find no error in the circuit court denying petitioner’s motion. Accordingly, we find no error
below.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 12, 2016, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: June 16, 2017

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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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