                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


                                                                                      FILED
In re J.N.-1                                                                        April 6, 2020
                                                                                 EDYTHE NASH GAISER, CLERK
No. 19-0456 (Wood County 18-JA-76)                                               SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA




                              MEMORANDUM DECISION



        Petitioner Father J.N.-2, by counsel Courtney L. Ahlborn, appeals the Circuit Court of
Wood County’s April 4, 2019, order terminating his parental rights to J.N.-1. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a
response in support of the circuit court’s order. The guardian ad litem, Ernest M. Douglass, filed
a response on behalf of the child in support of the circuit court’s order and a supplemental
appendix. On appeal, petitioner argues that the circuit court erred in finding that he neglected the
child, terminating his parental rights without imposing a less-restrictive dispositional alternative,
and failing to make statutorily required findings in its final order.

        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 May of 2018, after the birth of J.N.-1., the DHHR filed an abuse and neglect petition
alleging that the mother’s parental rights to two other children had previously been involuntarily
terminated due to physical abuse, medical neglect, inadequate housing, substance abuse, and
inability to parent. The DHHR further alleged that the mother and petitioner had cognitive delays
       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). Additionally, because the child and petitioner share
the same initials, we will refer to them as J.N.-1 and J.N.-2, respectively, throughout this
memorandum decision.




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and inadequate housing at the time of J.N.-1’s birth. Specifically, the DHHR alleged that the
parents were being evicted, had outstanding utility bills, and were unable to open another
electricity account due to their outstanding balance. The parents reported being late on bills
because of purchases for the baby and that their grocery bill was high from buying “a lot of junk
food.” Both parents reported receiving social security disability payments due to their “learning
disabilities.” The mother reported that she received Supplemental Nutritional Assistance
Program and Women, Infants, and Children benefits. Petitioner admitted to the DHHR worker
that he had been in a relationship with the mother “on and off” for the last seven years. The
DHHR alleged that petitioner’s relationship with the mother had been ongoing since her prior
termination proceeding in 2014, as evidenced by J.N.-1’s birth. The DHHR concluded that the
mother failed to remedy the conditions of abuse and neglect that led to the prior involuntary
terminations of her parental rights and that the parents lacked adequate skills to fulfill their
caregiving responsibilities. Thereafter, petitioner waived his preliminary hearing and the circuit
court appointed him a guardian ad litem due to his alleged cognitive delays and learning
disabilities.

         In August of 2018, the circuit court held an adjudicatory hearing. The DHHR worker
testified that the mother failed to remedy the conditions of abuse and neglect that resulted in the
prior involuntary termination of her parental rights to her older children because she had not
completed any parenting classes, mental health counseling, substance abuse treatment, or gained
employment or stable housing. Therefore, the DHHR explained that the children could not be
placed with the mother, or, likewise, petitioner because he remained in a relationship with the
mother. Petitioner suggested two locations as housing for the child. However, one location was
with the mother at her sister’s home, which was inappropriate because the mother lived there and
her sister’s parental rights to her own children had been previously terminated. The second
location was petitioner’s mother’s home, but the DHHR worker testified that the home was
inappropriate as petitioner’s mother never completed a home study. Lastly, the DHHR worker
voiced concerns with petitioner’s ability to provide for the child without the help of others. After
hearing the evidence, the circuit court continued the hearing until October of 2018. At that
hearing, the circuit court adjudicated petitioner and the mother as abusing parents due to the lack
of appropriate housing and inadequate parenting skills. After adjudicating the parents, the circuit
court specifically stated

       Given their history and capacity, [this child] need[s] to be under the supervision
       of the [c]ourt until we determine their ability to parent. So although it’s not one of
       your most aggravated circumstances cases, there’s still sufficient evidence to
       adjudge the [child as] neglected . . . under the definition of the Code, because
       there are major questions as to whether these parents can properly parent [this
       child], especially the mother with her two aggravated circumstances cases, her
       prior terminations.

        In December of 2018, the circuit court held a dispositional hearing wherein petitioner
moved for a post-adjudicatory improvement period, but the circuit court held petitioner’s motion
in abeyance and ordered petitioner to undergo a parental fitness and psychological evaluation,
which he completed shortly thereafter. In March of 2019, the circuit court held a final
dispositional hearing in which it considered petitioner’s parental fitness and psychological

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evaluation that indicated that petitioner’s prognosis for gaining the ability to parent or live
independently was “extremely poor.” Also, the DHHR worker testified that despite regularly
attending classes and seven months of supervised visitation, petitioner did not grasp basic
parenting skills and needed assistance with changing, feeding, and cleaning the child. Based
upon petitioner’s parental fitness and psychological evaluation, and the testimony of the DHHR
worker, the circuit court denied petitioner’s motion for an improvement period. Ultimately, the
circuit court concluded that there was no reasonable likelihood that petitioner could substantially
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. Accordingly, the circuit court terminated petitioner’s
parental rights. 2 It is from the 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 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, we find no error in
the proceedings below.

        First, petitioner argues that it was error for the circuit court to find that he neglected the
child because he had housing throughout the proceedings. Petitioner contends that his inability to
afford housing at the time of removal was based solely on a lack of financial means, which
cannot be grounds for a finding of neglect of a child pursuant to West Virginia Code § 49-1-201.
Also, petitioner argues that the circuit court improperly adjudicated him on the basis of his
inability to parent when no such evidence was put forward by the DHHR other than his
qualification for social security disability payments. We disagree.

       We have previously noted as follows:



       2
       The mother’s parental rights were also terminated below. According to respondents, the
permanency plan is for the child to be adopted by his foster family.




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       At the conclusion of the adjudicatory hearing, the 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. . . . The
       findings must be based upon conditions existing at the time of the filing of the
       petition and proven by clear and convincing evidence.

In re F.S., 233 W. Va. 538, 544, 759 S.E.2d 769, 775 (2014). This Court has explained that
“‘clear and convincing’ is the measure or degree of proof that will produce in the mind of the
factfinder a firm belief or conviction as to the allegations sought to be established.” Id. at 546,
759 S.E.2d at 777 (citation omitted). However, “the clear and convincing standard is
‘intermediate, being more than a mere preponderance, but not to the extent of such certainty as is
required beyond a reasonable doubt as in criminal cases.’” Id. (citation omitted).

       Pursuant to West Virginia Code § 49-1-201, a

       “[n]eglected child” means a child: (A) Whose physical or mental health is harmed
       or threatened by a present refusal, failure or inability of the child’s parent,
       guardian, or custodian to supply the child with necessary food, clothing, shelter,
       supervision, medical care, or education, when that refusal, failure, or inability is
       not due primarily to a lack of financial means on the part of the parent, guardian,
       or custodian.

        Having reviewed the record, we find that sufficient evidence existed to adjudicate
petitioner as an abusing parent. On appeal, petitioner claims he had housing during the
proceedings, but he ignores his admission to the DHHR that he had no housing nor a plan to
obtain housing when the petition was filed, and that his subsequent housing options were
inappropriate. As explained above, petitioner suggested he reside with the mother, which was
inappropriate because the children could not be placed with the mother due to her failure to
correct the conditions of abuse and neglect, including physical abuse and medical neglect, that
resulted in the termination of her parental rights to older children. Notably, petitioner fails to
address the DHHR’s concern at adjudication that he refused to leave his relationship with the
mother. Also, the mother’s sister’s house was inappropriate because she too had a history of
Child Protective Services interventions. Lastly, petitioner’s mother’s home was inappropriate
because she never completed a home study. Therefore, it was clear that petitioner continued to
have inappropriate housing for the child, and had no apparent plan to obtain suitable housing at
adjudication.

        Although petitioner claims that his lack of suitable housing is due to a lack of financial
means, petitioner collected a monthly income and admitted to failing to keep stable housing
since the mother’s previous termination in 2014. Despite receiving sufficient income, petitioner
failed to properly budget his funds for living expenses. In light of the fact that petitioner had no
suitable housing, nor a plan to obtain housing for the infant child, we find that the circuit court
properly adjudicated petitioner based upon the lack of appropriate housing. Given these facts,
there is no indication that petitioner’s inability to obtain and keep housing was due primarily to a
lack of financial means, and, therefore, the circuit court did not err by finding that the child was
neglected pursuant to West Virginia Code § 49-1-201. We also find that petitioner was properly
adjudicated upon a finding that he lacked proper parenting skills as he chose to stay in a
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relationship with the mother despite the fact that she had made no efforts to address the
conditions of abuse and neglect from the termination of her parental rights to the older children,
thus jeopardizing his parental rights to the child at issue.

        Petitioner next argues that the circuit court erred in terminating his parental rights without
imposing a less-restrictive dispositional alternative, such as granting him an improvement period.
Petitioner argues that he was likely to fully participate in an improvement period as evidenced by
his cooperation with adult life skills classes, parenting classes, and supervised visits.

         West Virginia Code § 49-4-610(2)(B) provides that the circuit court may grant a parent a
post-adjudicatory improvement period when the parent “demonstrates, by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period.” We have
noted that “West Virginia law allows the circuit court discretion in deciding whether to grant a
parent an improvement period.” In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015).
“Additionally, if a parent is unable to demonstrate an ability to correct the underlying conditions
of abuse and/or neglect in the near future, termination of parental rights may proceed without the
utilization of an improvement period.” In re Charity H., 215 W. Va. 208, 216, 599 S.E.2d 631,
639 (2004). Here, the circuit court relied heavily upon petitioner’s parental fitness evaluation,
which stated that petitioner’s prognosis for parental improvement was “extremely poor.” The
evaluation further stated that petitioner could not provide the child with stable housing and that
his “cognitive limitations and adaptive skill deficits” made it unlikely that he could live
independently or parent a child. As the circuit court considered evidence regarding petitioner’s
potential to improve during an improvement period, we find no error in its denial of petitioner’s
improvement period as he was “unable to demonstrate an ability to correct the underlying
conditions of abuse and/or neglect in the near future.” Id. at 216, 599 S.E.2d at 639.

       We likewise agree with the termination of petitioner’s parental rights. Pursuant to West
Virginia Code § 49-4-604(b)(6), circuit courts are directed 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)(3) 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

       [t]he abusing parent . . . ha[s] not responded to 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, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare, or life of the child.

        The record establishes that petitioner did not respond to or follow through with the
DHHR’s rehabilitative efforts. At the final dispositional hearing, the DHHR worker testified that
she kept petitioner’s supplies, such as formula and diapers, in her office for each visit for safe
keeping; she had to repeat explanations to petitioner for the same simple tasks at every visit,
including how to properly measure baby formula and how to change a diaper; she knew that
petitioner never completed his assigned “homework” on his own; and she believed that petitioner
could not independently change, feed, clean, and interact with the child after seven months of
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intensive parenting education and guidance from the DHHR. While petitioner argues that a less-
restrictive dispositional alternative should have been imposed, 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] 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)] 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). Because the circuit court
properly found that there was no reasonable likelihood that the conditions of abuse and neglect
could be corrected in the near future and termination of petitioner’s parental rights was necessary
for the welfare of the child, we find no error in the circuit court’s decision to terminate
petitioner’s parental rights. 3

       Lastly, petitioner argues that the circuit court failed to “state statutory findings required
by W.Va. Code § [49-4-604(b)(6)],” such as whether the DHHR made reasonable efforts to
preserve or reunify the family. Further, petitioner argues that the April 4, 2019, order is
inaccurate as it fails to mention that petitioner presented evidence that he corrected the
conditions of abuse and neglect. We disagree and find no merit to petitioner’s arguments.

        As discussed earlier, petitioner’s housing alternatives were not acceptable and, therefore,
petitioner never corrected this deficiency. Likewise, the circuit court stated at the final
dispositional hearing that the DHHR had “made reasonable efforts in providing the services of
[the Families Forward provider], as well as the parental fitness examination and so forth” to keep
the family together. Further, in its April 4, 2019, order, the circuit court found that continuation
in the home was contrary to the child’s welfare because petitioner was unable to “effectively
parent the child and the conditions that led to the filing of the petition cannot be changed.” The
circuit court also found that there was no reasonable likelihood that the conditions of abuse and
neglect could be substantially corrected in the near future and that “the child needs continuity in
       3
         Although not raised by petitioner, we note that the DHHR made a thorough effort below
to determine whether petitioner could “adequately care for the [child] with intensive long-term
assistance” as required by Syllabus Point 4 of In re Maranda T., 223 W. Va. 512, 678 S.E.2d 18
(2009). The circuit court relied upon petitioner’s parental fitness and psychological evaluation,
which indicated petitioner was unlikely to live independently, let alone parent a young child
without assistance. The DHHR provided petitioner with seven months of supervised visitations
with hands-on guided parental education, yet he was unable to become proficient in caring for
the child without supervision and direct assistance. Outside of the DHHR providing twenty-four
hour supervision for petitioner and his child, petitioner would be unable to safely and adequately
parent his child. Accordingly, we find that the circuit court properly terminated petitioner’s
parental rights only after the requirements of Miranda T. were met.




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care and caretakers, and a significant amount of time is required to be integrated into a stable and
permanent home environment.” The circuit court concluded that “necessity for the welfare and
best interest of the child” required the termination of petitioner’s parental rights. Lastly, the
circuit court explicitly considered the dispositional alternatives to the termination of parental
rights as contained in West Virginia Code § 49-4-604(b). Accordingly, the circuit court made all
required findings pursuant to West Virginia Code § 49-4-604(b)(6), and its April 4, 2019, order
is more than adequate.

        For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 4, 2019, order is hereby affirmed.

                                                                                         Affirmed.

ISSUED: April 6, 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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