                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In Re: H.J. and H.J.                                                              FILED
                                                                                  May 24, 2013
                                                                             RORY L. PERRY II, CLERK
No. 12-1498 (Wetzel County 11-JA-18 & 19)                                  SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA



                                MEMORANDUM DECISION

       Petitioner Father, by counsel Jeremiah Gardner, appeals the Circuit Court of Wetzel
County’s order entered on November 27, 2012, terminating his parental rights to the children.1
The children’s guardian ad litem, Roger Weese, filed his response on behalf of the children. The
West Virginia Department of Health and Human Resources (“DHHR”), by Lee Niezgoda, its
attorney, has filed its response.

        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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

         A petition for immediate custody of minor children in imminent danger was filed alleging
that the children have sustained substantial emotional injury due to witnessing multiple instances
of domestic violence. On December 23, 2011, the DHHR filed an amended petition further
alleging that Petitioner Father admitted to having a drug problem; specifically, he admitted to the
use of Percocet and marijuana, and he acknowledged the need for treatment. Following a hearing
and a stipulated adjudication, the circuit court held that the children were abused and neglected
and that Petitioner Father was an abusing and neglectful parent. The circuit court granted
Petitioner Father a six month post-adjudicatory improvement period. On August 28, 2012, the
circuit court held that Petitioner Father substantially complied with the terms of his improvement
period and granted him a three-month extension. However, on September 19, 2012, Petitioner
Father was indicted on one count of conspiracy to deliver Oxycodone and one count of delivery
of a controlled narcotic substance (Oxycodone). In terminating Petitioner Father’s parental
rights, the circuit court found Petitioner Father “has failed to adequately improve his
circumstances due to his drug dependency,” an emergency situation exists, and “there is no
reasonable likelihood that the conditions of abuse and neglect can be corrected in the near future
. . . .”

       On appeal, Petitioner Father argues that he should be given another chance to complete
the drug treatment aspect of his improvement plan because he made progress during the twenty­

1
 Petitioner’s counsel notes that this petition for appeal was filed pursuant to Anders v. Cal., 386
U.S. 738, 87 S.Ct. 1396 (1967).
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eight-day rehabilitation program but needs additional rehabilitation. Finally, Petitioner Father
argues he should be allowed to participate in an improvement plan even if he is convicted of the
drug charges, as long as he is not incarcerated.

        In response, the children’s guardian ad litem and the DHHR contend the circuit court
properly terminated Petitioner Father’s parental rights. The guardian argues that Petitioner Father
failed six drug tests; failed to show for a drug test on four separate occasions, which counted as
failed tests; did not attend inpatient drug testing as requested by the circuit court; became
argumentative and combative during parenting sessions; and was indicted on two felony drug
charges. The DHHR adds that Petitioner Father refused intensive long-term inpatient addiction
treatment.

       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).

        Upon our review, the Court finds no error in the circuit court’s termination of Petitioner
Father’s parental rights to the children. The facts show that petitioner has failed to make
meaningful progress during his post-adjudicatory improvement period. Petitioner Father was
indicted on two felony drug charges and failed to improve his circumstances due to his drug
dependency. The Court finds that the circuit court was presented with sufficient evidence upon
which it based findings that there was no reasonable likelihood to believe that conditions of
abuse and neglect could be substantially corrected in the near future, and that termination was
necessary for the children’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit
courts are directed to terminate parental, custodial, and guardianship rights upon such findings.

       For the foregoing reasons, the circuit court’s order terminating Petitioner Father’s
parental rights is hereby affirmed.


                                                                                        Affirmed.


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ISSUED: May 24, 2013


CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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