                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

                                                                                     FILED
In re T.L.                                                                        June 24, 2020
                                                                                 EDYTHE NASH GAISER, CLERK
No. 20-0018 (Webster County 19-JA-23)                                            SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA




                               MEMORANDUM DECISION


         Petitioner Father M.L., by counsel Jared S. Frame, appeals the Circuit Court of Webster
County’s December 29, 2019, order terminating his parental rights to T.L. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a response
in support of the circuit court’s order. The guardian ad litem (“guardian”), Mary Elizabeth Snead,
filed a response on behalf of the child also in support of the circuit court’s order and a supplemental
appendix. On appeal, petitioner argues that the circuit court erred in terminating his parental rights
without first granting him an 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.

        The DHHR filed a child abuse and neglect petition against petitioner in July of 2019 due
to allegations of drug abuse. Specifically, the DHHR alleged that the child tested positive for
amphetamine, methamphetamine, buprenorphine, and norbuprenorphine at birth and that
petitioner did not visit the child at the hospital until five days after the birth. The DHHR also
alleged that petitioner’s parental rights to an older child were previously terminated. Thereafter,
the circuit court held an adjudicatory hearing. Petitioner failed to attend but was represented by
counsel. The circuit court adjudicated petitioner as an abusing parent by order entered September
30, 2019.



       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).
                                                  1
        In November of 2019, the circuit court held a dispositional hearing. Petitioner failed to
attend but was represented by counsel. A Child Protective Services (“CPS”) worker testified that
petitioner failed to maintain contact with her throughout the proceedings. The CPS worker also
noted that petitioner was incarcerated for a brief period of time after the petition’s filing but had
since been released. Nevertheless, petitioner failed to contact anyone at the DHHR about services
and had not visited the child except for one time at the hospital after the child’s birth. At the close
of evidence, the circuit court noted that petitioner’s parental rights to an older child were previously
terminated due to substance abuse. The circuit court found that petitioner failed to appear during
the proceedings and terminated petitioner’s parental rights upon finding that there was no
reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near
future and that termination of his parental rights was necessary for the child’s welfare. Petitioner
appeals the December 29, 2019, dispositional order. 2

       The Court has previously established the following standard of review in cases such as this:

               “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).

        On appeal, petitioner argues that the circuit court erred in terminating his parental rights
without granting him an improvement period. According to petitioner, the CPS worker testified
that she did not have contact with petitioner during the proceedings below, and the circuit court
erred in denying him an improvement period “without at least attempting to determine if [he] could
participate.” Petitioner also claims that he was not given the opportunity to bond with the infant
child and should have been granted an improvement period to facilitate that bonding. Having
reviewed the record, we find no error.

        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) (“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) (“It is within the
court’s discretion to grant an improvement period within the applicable statutory requirements . .


       2
       The mother voluntarily relinquished her parental rights during the proceedings below. The
permanency plan for the child is adoption by the foster family.
                                                   2
. .”). West Virginia Code §§ 49-4-610(2)(A) and (B) provide that a circuit court may grant a post-
adjudicatory improvement period when a parent (1) requests an improvement period in writing
and (2) demonstrates by clear and convincing evidence that he or she is likely to fully participate
in the improvement period.

        On appeal, petitioner fails to demonstrate that he requested an improvement period during
the proceedings below. Indeed, in his brief, petitioner states that “he could not request an
improvement period.” 3 “‘Our general rule is that nonjurisdictional questions . . . raised for the first
time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349
n.20, 524 S.E.2d 688, 704 n.20 (1999).” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818,
821, 679 S.E.2d 650, 653 (2009). Moreover, to the extent petitioner argues that the circuit court
should have unilaterally granted him an improvement period, we remind petitioner that “it is clear
that West Virginia Code § 49-4-610(2)(B) places the burden squarely on a parent to establish, by
clear and convincing evidence ‘that the [parent] is likely to fully participate’ in order to obtain a
post-adjudicatory improvement period.” In re E.C., No. 19-0834, 2020 WL 2043399, at * 4 n.5
(W. Va. Apr. 28, 2020)(memorandum decision). Therefore, it was petitioner’s burden to prove that
he was entitled to an improvement period. However, he failed to request an improvement period
and did not present any evidence in support of the same. Therefore, we will not consider this claim.

        Further, we find that there was no error in the termination of petitioner’s parental rights.
West Virginia Code § 49-4-604(b)(6) (2019) 4 provides that circuit courts are to terminate parental
rights upon findings that there is “no reasonable likelihood that the conditions of neglect or abuse
can be substantially corrected in the near future” and that termination is necessary for the child’s
welfare. West Virginia Code § 49-4-604(c) (2019) provides that a situation in which there is “[n]o
reasonable likelihood that [the] conditions of neglect or abuse can be substantially corrected”
includes when “the abusing adult or adults have demonstrated an inadequate capacity to solve the
problems of abuse or neglect on their own or with help.”

        Here, petitioner absented himself from the entirety of the proceedings. There is no evidence
that petitioner appeared at a single hearing during the proceedings below despite having actual
knowledge and notice of the hearings. Based on petitioner’s complete absence, coupled with the
prior termination of his parental rights to an older child, the circuit court found that there was no
reasonable likelihood that he could correct the conditions of abuse and neglect in the near future
and that termination of his parental rights was necessary for the child’s welfare. We agree.

        Moreover, to the extent petitioner argues that he should have been granted a post-
adjudicatory improvement period prior to the termination of his parental rights, we have previously
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

       3
           Petitioner provides no explanation for why he “could not request an improvement period.”
       4
        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.
                                                   3
       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). Based on the foregoing, the
circuit court did not err in terminating petitioner’s parental rights.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 29, 2019, order is hereby affirmed.
                                                                                        Affirmed.

ISSUED: June 24, 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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