                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



In Re: K.L.                                                                        FILED
                                                                                 February 18, 2014
No. 13-0945 (Wetzel County 12-JA-06)                                          RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA


                                 MEMORANDUM DECISION

       Petitioner Father, by counsel Jeremiah Gardner, appeals the Circuit Court of Wetzel
County’s August 21, 2013, order terminating his parental rights to K.L.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Katherine Bond, filed its
response in support of the circuit court’s order and a supplemental appendix. The guardian ad
litem, Roger Weese, filed a response on behalf of the child also supporting the circuit court’s
order. On appeal, Petitioner Father alleges that the circuit court erred in terminating his
improvement period without granting an extension and in terminating his parental rights.

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

        In 2008, K.L.’s biological mother (“the mother”)2 had her parental rights involuntarily
terminated to her oldest child C.W.3 In January of 2009, the mother gave birth to Petitioner
Father’s first child, J.L.4 Shortly thereafter, the DHHR filed a petition for abuse and neglect
based, in part, on the mother’s prior involuntary termination.5 After receiving services, Petitioner

       1
        Petitioner Father’s counsel notes that this petition for appeal was filed pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).
       2
        The mother is appealing the termination of her parental rights to K.L. only in West
Virginia Supreme Court of Appeals Case Number 13-0884.
       3
         Petitioner Father is not the biological father of C.W. Because this matter concerns infant
children, we follow our traditional practice in cases involving sensitive facts and use only the
parties’ initials. See State v. Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127
n.1 (1990).
       4
        The mother is the biological mother of all the children referenced in this memorandum
decision.
       5
        The record is devoid of any information for the basis of the prior involuntary
termination. The record is also devoid of any information as to any additional grounds that the
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Father and the mother regained custody of J.L. On November 28, 2009, the mother gave birth to
Petitioner Father’s second child, H.L. The next day, the DHHR filed a petition for abuse and
neglect based, at least partially on, the mother’s prior involuntary termination of her parental
rights to C.W. This petition was dismissed after the preliminary hearing. In June of 2010, the
DHHR filed a petition for abuse and neglect against the mother and Petitioner Father based in
part on the parents’ medical neglect of J.L. and H.L. For reasons that are not apparent to this
Court, Petitioner Father and the mother thereafter voluntarily relinquished their parental rights to
J.L. and H.L.

        Shortly after the mother gave birth to Petitioner Father’s third child, L.L., the DHHR
filed a petition for abuse and neglect based in part on the prior involuntary termination of the
mother’s parental rights to her first child, C.W., and Petitioner Father and the mother’s voluntary
relinquishment of their parental rights to J.L. and H.L. By order entered on January 25, 2011, the
Marion County Circuit Court terminated Petitioner Father’s parental rights to L.L.

        On June 14, 2012, the mother gave birth to Petitioner Father’s fourth child, K.L.6 The
following month, the DHHR filed a petition for abuse and neglect against the mother and
Petitioner Father based upon the prior involuntary termination and voluntary relinquishment of
their parental rights. Following the adjudicatory hearing, Petitioner Father admitted to the prior
involuntary termination. After Petitioner Father’s admission, the circuit court ordered that K.L.
remain in the physical custody of the mother.7

        On January 31, 2013, the circuit court held a hearing on Petitioner Father’s motion for a
post-adjudicatory improvement period. After considering the evidence, the circuit court granted
Petitioner Father a three-month post-adjudicatory improvement period. As part of this
improvement period, Petitioner Father was ordered to: attend alcoholics anonymous meetings;
remain sober; submit to weekly random drug screens; continue in-home services and parenting
education with Open Horizons; maintain a safe home; appropriately care for K.L.; participate in
therapy; and not violate any laws. Shortly thereafter, Petitioner Father became intoxicated and
assaulted the mother. As a result, the DHHR filed a motion to terminate Petitioner Father’s
improvement period. The circuit court held a hearing on that motion in April of 2013 and was
advised that Petitioner Father had pled guilty to domestic battery against the mother. Petitioner
Father was also facing additional felony charges in Tyler County, West Virginia.8 By order



DHHR may have alleged in the petition for abuse and neglect besides the prior involuntary
termination.
       6
        This decision does not affect the termination of Petitioner Father’s parental rights in the
previous abuse and neglect proceedings.
       7
         It is unclear from the record if the mother and Petitioner Father are married or if they
resided together.
       8
        Petitioner Father was charged with driving under the influence and grand larceny in
Tyler County.
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entered on August 21, 2013, the circuit court terminated Petitioner Father’s parental rights. It is
from this order that Petitioner Father now 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).

        First, Petitioner Father argues that the circuit court erred in not granting him an
improvement period longer than three months. Petitioner Father claims that a three-month
improvement period was not enough time to address the issues listed in the family case plan and
that his incarceration prevented him from additional compliance.

        West Virginia Code § 49-6-12(b) grants circuit courts the discretion to grant an
improvement period for any amount of time “not to exceed six months.” “It is within the court’s
discretion to grant an improvement period within the applicable statutory requirements . . . .” Syl.
Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996). The record is clear that
Petitioner Father began receiving services in 2009. In granting Petitioner Father’s three-month
post-adjudicatory improvement period in this case, the circuit court stated, “[Petitioner Father
has] had years and years and years of chances. So there’s no reason to have an extended chance
in this one.” For these reasons, we find no abuse of discretion in the circuit court’s decision to
limit Petitioner Father’s improvement period to three months.

        Next, Petitioner Father argues that the circuit court erred in not extending his post­
adjudicatory improvement period and terminating his parental rights. Petitioner Father states that
he was complying with the terms of his improvement period, but his episodes of “binge
drinking” caused him to violate his improvement period. West Virginia Code § 49-6-12(g) grants
circuit courts the discretion to extend an improvement period “when the court finds that the
respondent has substantially complied with the terms of the improvement period.” In terminating
Petitioner Father’s improvement period, the circuit court stated, “[petitioner father] has no
reasonable ability to participate in the improvement period, has violated terms and conditions
that were set in place . . . .” This finding was supported by Petitioner Father’s testimony. As
stated above, Petitioner Father began receiving services in 2009. As part of his improvement

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period in the instant case, Petitioner Father was ordered to remain sober and to not violate any
laws of this State. However, Petitioner Father testified that during his post-adjudicatory
improvement period, he consumed alcohol and then committed domestic battery against the
mother.9 Petitioner Father further testified that his alcohol abuse affected his ability to care for
his children. Petitioner Father’s counsel also proffered that Petitioner Father was facing
additional charges in Tyler County, West Virginia. Taken together, this evidence supports the
circuit court’s denial of an additional improvement period.

        Additionally, the Court finds no error in the circuit court’s termination of Petitioner
Father’s parental rights because there was no reasonable likelihood that Petitioner Father could
substantially correct the conditions of abuse and neglect in the near future. West Virginia Code §
49-6-5(b)(3) states that a circumstance in which there is no reasonable likelihood that a parent
can substantially correct the conditions of abuse and neglect in the near future includes one in
which “[t]he abusing parent or parents have not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts[.]” Because Petitioner Father violated
the terms of his post-adjudicatory improvement period as stated above, the circuit court correctly
terminated Petitioner Father’s parental rights as required by West Virginia Code § 49-6-5(a)(6).

        Finally, Petitioner Father argues that the circuit court should have considered a
dispositional alternative instead of terminating his parental rights while he was incarcerated. This
Court has stated:

               When no factors and circumstances other than incarceration are raised at
       a disposition hearing in a child abuse and neglect proceeding with regard to a
       parent’s ability to remedy the condition of abuse and neglect in the near future,
       the circuit court shall evaluate whether the best interests of a child are served by
       terminating the rights of the biological parent in light of the evidence before it.
       This would necessarily include but not be limited to consideration of the nature
       of the offense for which the parent is incarcerated, the terms of the confinement,
       and the length of the incarceration in light of the abused or neglected child’s best
       interests and paramount need for permanency, security, stability and continuity.

Syl. Pt. 3, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

        We find no error in the circuit court’s decision to terminate Petitioner Father’s parental
rights while he was incarcerated. While the circuit court’s order does not specifically identify
why there was no reasonable likelihood that the conditions of abuse and neglect could be
corrected in the near future, we decline to grant Petitioner Father relief in this regard due to the
overwhelming evidence in this case favoring termination. We find there was overwhelming
evidence in the record on appeal to support the circuit court’s decision, including the specific
evidence that Petitioner Father physically abused the mother while under the influence of alcohol
during his post-adjudicatory improvement period. Furthermore, Petitioner Father was convicted
of conspiracy to commit grand larceny and third offence of driving on a suspended license

       9
           Petitioner Father testified that he pled guilty to domestic battery.


                                                        4


during the pendency of the improvement period.10 Therefore, the circuit court was correct in
finding that there was no reasonable likelihood that Petitioner Father could substantially correct
the conditions of abuse or neglect in the near future in accordance with West Virginia Code § 49­
6-5(b)(3). Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate
parental rights upon such findings. Petitioner Father’s failure to respond to or follow through
with a reasonable family case plan left the circuit court no option other than to terminate
Petitioner Father’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court and the
August 21, 2013, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: February 18, 2014

CONCURRED IN BY:

Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Robin Jean Davis




       10
        The record is devoid of any information regarding how long Petitioner Father was
sentenced for these crimes.
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