                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


In re T.H.                                                                              FILED
                                                                                     June 25, 2020
No. 19-1098 (Monongalia County 19-JA-8)                                            EDYTHE NASH GAISER, CLERK
                                                                                   SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA




                               MEMORANDUM DECISION



        Petitioner Father A.H., by counsel Kristen D. Antolini, appeals the Circuit Court of
Monongalia County’s November 1, 2019, order terminating his parental rights to T.H. 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”), Maria A.
Borror, filed a response on behalf of the child in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in terminating his parental rights without providing
him additional time to remedy the conditions of abuse and neglect.

       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 January of 2019, the DHHR filed an abuse and neglect petition against petitioner and
T.H.’s mother alleging that the child was born drug-exposed. The petition alleged that petitioner
had previously had his rights to other children involuntarily terminated after leaving his children
unsupervised in the care of an eleven-year-old. The petition further alleged that he failed to
complete an improvement period in the prior proceedings, and, therefore, had his parental rights
terminated for lack of substantial compliance and participation. Finally, the petition alleged that
petitioner lacked stable and suitable housing, admitted to using methamphetamine until he was



       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).


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incarcerated, and failed to provide for T.H.’s needs. 2 The circuit court held a preliminary hearing
and found probable cause that T.H. was at risk of imminent danger and ratified his removal.

        At a multidisciplinary team meeting in February of 2019, petitioner’s visitation with the
child was suspended because of his non-compliance with drug screening and missed visits.
Petitioner was then incarcerated for unrelated criminal charges on May 31, 2019. The circuit court
held an adjudicatory hearing in August of 2019, during which it adjudicated petitioner as an
abusing parent. At the time of the adjudicatory hearing, petitioner’s visitation was still suspended,
and his incarceration prevented compliance with other services.

         In October of 2019, the circuit court held a final dispositional hearing. Petitioner was
incarcerated and did not appear in person but was represented by counsel. At the hearing, petitioner
moved for a post-dispositional improvement period. The DHHR and guardian opposed petitioner’s
requested improvement period and moved for his parental rights to be terminated. The DHHR and
guardian alleged that petitioner had not participated in the proceedings, except for a few supervised
visits at the beginning, and that he had been incarcerated for the majority of the proceedings.
Further, a DHHR caseworker testified that petitioner failed to correct the conditions that led to his
prior involuntary termination of parental rights. Specifically, the caseworker testified that
petitioner was using controlled substances which, in part, led to the prior involuntary termination
of his parental rights. The DHHR argued that petitioner continued to abuse drugs, was non-
compliant with testing, and that his incarceration on May 31, 2019, prevented compliance with
other services. Petitioner admitted at the dispositional hearing that his incarceration stemmed from
various charges related to his substance abuse. Additionally, the DHHR and guardian alleged that
petitioner’s prior involuntary termination also stemmed from his failure to participate in services
during his prior improvement period. The DHHR argued that petitioner failed to correct those
conditions by failing to comply with drug testing as well as visitation with the child. A report by
the guardian indicated petitioner had not visited with the child since February 19, 2019, when his
visitation was suspended. Based upon this evidence, the circuit court found that petitioner had “not
remedied the conditions that led to the filing of the [p]etition” and that there was no reasonable
likelihood he could substantially correct the conditions of abuse and neglect. Accordingly, the
circuit court terminated petitioner’s parental rights to the child. 3 It is from the November 1, 2019,
dispositional 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


       2
        The DHHR alleged that petitioner admitted to living on “someone’s couch,” but he failed
to provide an address.
       3
        The child’s mother’s parental rights were also terminated. The permanency plan is for
T.H. to be adopted by his current foster family.


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       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 alleges that the circuit court erred in not providing him a post-
dispositional improvement period because “the main issue in this matter is sobriety” and during
his several months of incarceration he “should have achieved sobriety.” Further, petitioner
contends he was ready to fully participate in an improvement period upon his release. Upon our
review, we find that petitioner is not entitled to relief.

        Petitioner argues the circuit court erred in terminating his parental rights because he would
have substantially complied with an improvement period and corrected the conditions of abuse
and neglect. According to petitioner, the only issue that needed to be corrected was substance
abuse. However, this argument not only misstates the record but also ignores the myriad of issues
for which petitioner was adjudicated. When petitioner’s parental rights were terminated, the circuit
court noted that the issues that resulted in his prior termination of parental rights had not been
corrected. While petitioner argues many of the issues that led to his prior termination stemmed
from substance abuse, he did admit at the dispositional hearing that it was due to both substance
abuse “and [a] lack of compliance in services.” Additionally, other than a bare assertion he could
have achieved sobriety during incarceration, petitioner failed to provide any evidence that he had
overcome his addiction or otherwise corrected those conditions. Petitioner also failed to participate
in services and was incarcerated for much of the time. Finally, the record reflects that petitioner
was homeless at the time of the petition’s filing and struggled to maintain housing throughout the
proceedings. Despite this evidence, petitioner asserts that he would have complied with the terms
and conditions of a post-dispositional improvement period.

        This Court has held that “a parent charged with abuse and/or neglect is not unconditionally
entitled to an improvement period.” In re Emily, 208 W. Va. 325, 336, 540 S.E.2d 542, 553 (2000).
West Virginia Code § 49-4-610(3)(B) provides that the circuit court may grant a parent a post-
dispositional improvement period when the parent “demonstrates, by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period.” “This Court
has explained that ‘an improvement period in the context of abuse and neglect proceedings is
viewed as an opportunity for the miscreant parent to modify his/her behavior so as to correct the
conditions of abuse and/or neglect with which he/she has been charged.’” In re Kaitlyn P., 225 W.
Va. 123, 126, 690 S.E.2d 131, 134 (2010) (citation omitted). However, the circuit court has
discretion to deny an improvement period when no improvement is likely. In re Tonjia M., 212 W.
Va. 443, 448, 573 S.E.2d 354, 359 (2002).




                                                  3
        Petitioner effectively argues that he should have received more time to correct the
conditions of abuse and neglect that led to the petition. However, the record reflects that he
received an improvement period in his prior abuse and neglect proceeding that was unsuccessful
due to his noncompliance. Further, the circuit court found that the conditions of abuse and neglect
that led to the prior termination of petitioner’s parental rights persisted throughout the current
proceedings. Despite this, petitioner argues that the DHHR was not required to make efforts to
terminate his parental rights when it did, given that West Virginia Code § 49-4-605(a)(1) requires
the DHHR “to seek a ruling in any pending proceeding to terminate parental rights” when

       a child has been in foster care for 15 of the most recent 22 months as determined
       by the earlier of the date of the first judicial finding that the child is subjected to
       abuse or neglect or the date which is 60 days after the child is removed from the
       home

According to petitioner, this did not apply to the child herein. While it is true that the DHHR was
not required to seek termination under this statute, this Court has nonetheless previously held that

               “[a]lthough it is sometimes a difficult task, the trial court must accept the
       fact that the statutory limits on improvement periods (as well as our case law
       limiting the right to improvement periods) dictate that there comes a time for
       decision, because a child deserves resolution and permanency in his or her life, and
       because part of that permanency must include at minimum a right to rely on his or
       her caretakers to be there to provide the basic nurturance of life.”

State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 260, 470 S.E.2d 205, 214 (1996) (emphasis
added). Accordingly, it is clear that, absent either a statutory requirement for the DHHR to seek
termination of petitioner’s parental rights or a statutory prohibition upon further time for an
improvement period under West Virginia Code § 49-4-610(9), 4 our prior holdings governing the
circuit court’s discretion in granting improvement periods or extensions permitted termination of
petitioner’s parental rights under the facts of this case.

        Finally, based on the evidence of petitioner’s sporadic participation and incarceration for
most of the proceedings, the circuit court found that he failed to follow through with the DHHR’s
rehabilitative services. Importantly, this constitutes a situation in which there is no reasonable
likelihood the conditions of abuse and neglect can be substantially corrected in the near future
under West Virginia Code § 49-4-604(c)(3) (2019). 5 On appeal, petitioner asserts that the circuit
court’s decision to terminate was improper when he was making substantial progress toward
reunification. Petitioner contends, for instance, that he was sober during his months of
incarceration from May to October of 2019. Even if this Court accepts petitioner’s assertion of


       4
         Pursuant to West Virginia Code § 49-4-610(9), “[n]otwithstanding any other provision of
this section, no combination of any improvement periods or extensions thereto may cause a child
to be in foster care more than fifteen months of the most recent twenty-two months.”
       5
        Although the Legislature amended West Virginia Code § 49-4-604 effective June 5, 2020,
including renumbering the provisions, the amendments do not impact this case.
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sobriety—a contention he cannot provide evidence for—he points to no other evidence of
compliance or participation throughout the proceedings. Therefore, the circuit court’s findings are
based on substantial evidence that petitioner was never fully compliant in his prior improvement
period and failed to avail himself of many of the services offered in these proceedings. Moreover,
the circuit court found that termination of petitioner’s parental rights was in the child’s best
interests. According to West Virginia Code § 49-4-604(b)(6) (2019), circuit courts may terminate
parental rights upon these findings. Further, we have long held that

                “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [West Virginia
       Code § 49-4-604 (2019)] . . . may be employed without the use of intervening less
       restrictive alternatives when it is found that there is no reasonable likelihood under
       [West Virginia Code § 49-4-604(c) (2019)] . . . 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). The record shows that the circuit
court had ample evidence upon which to base these findings, and we decline to disturb them on
appeal.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 1, 2019, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: June 25, 2020

CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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