                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                     FILED
In re V.B. and J.B.                                                               June 15, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0119 (Webster County 17-JA-57 and 58)                                     SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Father G.B., by counsel Steven B. Nanners, appeals the Circuit Court of
Webster County’s January 11, 2018, order terminating his parental rights to V.B. and J.B.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N.
Felton-Ernest, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Mary E. Sneed, 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 without the imposition of 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.

       Petitioner was named as a respondent in a prior abuse and neglect case that began in May
of 2016.2 Petitioner completed an improvement period in January of 2017; however, the circuit
court expressed concerns regarding the ongoing educational needs of the children and ordered
the DHHR to monitor the children through the remainder of the school year.

        In June of 2017, the DHHR filed a petition alleging that both children were absent
multiple days without excuse, that J.B. was failing several classes and missing assignments, and
that V.B. was not returning documentation regarding home reading assignments. Additionally,
petitioner recently fled in an encounter with the police and later admitted to using controlled
                                                            
              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
         D.B., petitioner’s partner and mother of the children, was also named as a respondent in
that case.



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substances. The DHHR also alleged that when the mother was questioned regarding possible
placement with her, she refused to drug screen. The circuit court held a preliminary hearing and
found that the children would be in imminent danger if they were returned to their parents’
custody.

        The circuit court held an adjudicatory hearing in August of 2017 and took judicial notice
of petitioner’s prior abuse and neglect proceeding. From the evidence presented, the circuit court
found that petitioner admitted to using controlled substances and failed to provide a fit and
suitable home. Accordingly, the circuit court adjudicated petitioner as an abusing parent.
Petitioner moved for a post-adjudicatory improvement period and the circuit court granted that
motion in October of 2017. The terms of the improvement period required petitioner to remain
drug free, participate in random drug screens, complete a long-term drug rehabilitation treatment
program, complete an anger management class, and participate in outpatient drug treatment
while waiting for admission to inpatient treatment.

        In November of 2017, the circuit court held a review hearing, suspended petitioner’s
supervised visitation, and indicated that the DHHR should file a motion to terminate petitioner’s
parental rights within seven days if it intended to so do. Accordingly, the DHHR filed a motion
to terminate petitioner’s parental rights alleging that petitioner agreed to enter into the LEAD
academy, a long-term substance abuse program, but left a few hours after arriving. The DHHR
alleged that the mother also left the program because she would not be allowed to smoke
cigarettes and that petitioner left because the mother left.

         The circuit court held an evidentiary hearing on the DHHR’s motion to terminate
petitioner’s improvement period and parental rights in December of 2017. A DHHR case worker
testified that petitioner left the LEAD academy the same day he arrived. Additionally, the worker
testified that petitioner attended a substance abuse program in Huntington, West Virginia, for a
few days before the evidentiary hearing. However, petitioner now refused to return to the
program. The worker testified that petitioner was testing negative for controlled substances, but
was not consistently tested in December of 2017 because the DHHR did not consistently find
him at home. Finally, the worker testified that petitioner was not participating in anger
management classes and had cancelled parenting classes. Petitioner testified that he continued to
live with the mother “off and on.” The circuit court found that the mother continued to abuse
drugs and admitted during the evidentiary hearing that she would test positive for
methamphetamine if tested at that time. Further, petitioner testified that he no longer desired to
attend inpatient substance abuse treatment and believed that he could manage his addiction
through outpatient treatment.

       Ultimately, the circuit court found that there was no reasonable likelihood the conditions
of neglect and abuse could be corrected within the foreseeable future and that there was no
appropriate less-restrictive alternative to termination of petitioner’s parental rights. Accordingly,




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the circuit court terminated petitioner’s parental rights by its January 11, 2018, order.3 Petitioner
now appeals that order.

              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, this Court
finds no error in the proceedings below.

       On appeal, petitioner first argues that the circuit court erred in terminating his parental
rights because he was substantially complying with the terms of his post-adjudicatory
improvement period and that a less-restrictive dispositional alternative would have been more
appropriate than the termination of his parental rights. Petitioner also argues that, although he
voluntarily left a second inpatient treatment facility, he simply needed to find a new facility to
receive the treatment required by the terms of his case plan. We disagree.

       West Virginia Code § 49-4-604(b)(6) provides that the circuit court may terminate
parental rights when “there is no reasonable likelihood that the conditions of neglect or abuse can
be substantially corrected in the near future and, when necessary for the welfare of the child.”
Further, West Virginia Code § 49-4-604(c)(3) provides that there is no reasonable likelihood that
the conditions of neglect or abuse can be substantially corrected when the parent has “not
responded 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[.]” Upon these findings, the circuit court may terminate a
parent’s parental rights without the use of less-restrictive alternatives. Syl. Pt. 5, In re Kristin Y.,
227 W.Va. 558, 712 S.E.2d 55 (2011).

                                                            
              3
         The mother’s parental rights were also terminated by that order. According to the
parties, the permanency plan for V.B. is adoption in her current foster placement. J.B. will be
placed in the same foster home as his sister with a permanency plan of adoption or legal
guardianship in that home.



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        The circuit court correctly found that there was no reasonable likelihood that the
conditions of neglect or abuse could be substantially corrected because petitioner was not
following through with a reasonable family case plan. Moreover, the record is devoid of any
mention that petitioner participated in anger management classes. Similarly, although petitioner
participated in a parenting class, he became argumentative and ultimately cancelled a subsequent
class. Most importantly, petitioner refused to continue required inpatient drug treatment. On
appeal, petitioner argues that the circuit court should have provided him more time to attend a
subsequent inpatient treatment. However, it is clear from the record that petitioner specifically
requested that he be required to participate in outpatient treatment in place of new inpatient
treatment. Further, petitioner participated in a prior abuse and neglect case and completed an
improvement period just months before the initiation of these proceedings. In the time between
these two cases, the children’s education suffered and petitioner began using controlled
substances. It is unclear from the record what services petitioner was provided previously.
However, it is clear that the circuit court found that petitioner continued to abuse the children in
May of 2017. Accordingly, the circuit court did not err in finding there was no reasonable
likelihood that the conditions of neglect or abuse would be substantially corrected.

        Moreover, the circuit court did not err in finding that termination of petitioner’s parental
rights was necessary for the welfare of the children. While in petitioner’s custody, the children
were exposed to drug use and educational neglect and petitioner was unwilling to participate in
services that would improve the conditions for the children. We have also held as follows:

               “Termination 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).

Kristin Y., 227 W.Va. at 560, 712 S.E.2d at 57, Syl. Pt. 5. The circuit court correctly found that
there was no reasonable likelihood that the conditions of neglect or abuse could be substantially
corrected and that it was necessary for the welfare of the children to terminate petitioner’s
parental rights. Accordingly, we find no error in the circuit court’s order terminating petitioner’s
parental rights without the use of less-restrictive alternatives.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 11, 2018, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: June 15, 2018




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CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

Justice Allen H. Loughry II, suspended and therefore not participating

 




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