                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                     FILED
In re A.B., E.B., and N.B-1.
                                                                                 October 12, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0260 (Raleigh County 16-JA-164, 16-JA-165, and 16-JA-166)                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 


                                                          MEMORANDUM DECISION
        Petitioner Father N.B.-2, by counsel Christopher D. Lefler, appeals the Circuit Court of
Raleigh County’s February 21, 2018, order terminating his parental rights to A.B., E.B., and
N.B.-1.1 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”), Timothy P. Lupardus, 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 finding that there
was no reasonable likelihood that he could correct the conditions of abuse and neglect in the near
future, finding that termination of his parental rights was in the children’s best interests, and
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 order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On October 15, 2016, the DHHR filed an abuse and neglect petition against petitioner
alleging that his substance abuse caused him to be unable to provide proper care for the children.
Petitioner waived his preliminary hearing. On November 21, 2016, petitioner was incarcerated
for probation violations based upon positive drug screens. On December 12, 2016, petitioner
stipulated to the allegations of abuse and neglect of the children. Although petitioner remained
incarcerated, he was granted a post-adjudicatory improvement period. On March 10, 2017, the
circuit court held a review hearing. Petitioner was still incarcerated, but his expected release date
was in June of 2017. The circuit court rescheduled a review hearing.

                                                            
              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 one of the children and petitioner
share the same initials, they will be referred to as N.B.-1 and N.B.-2, respectively, throughout
this memorandum decision.


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        On June 9, 2017, the circuit court held a second review hearing. Despite his release from
incarceration, petitioner did not appear for the hearing, but was represented by counsel. The
DHHR moved for petitioner’s post-adjudicatory improvement period to be terminated and the
case to be set for disposition, which the circuit court granted. According to the DHHR, in July of
2017, petitioner entered into a detoxification facility. However, he was unable to enter into a
long-term rehabilitation facility because of his recent methamphetamine use.

        On July 14, 2017, the circuit court held a dispositional hearing. At this time, the circuit
court granted petitioner’s motion to continue the dispositional hearing to allow him to attend an
inpatient rehabilitation program. However, at the September 8, 2017, dispositional hearing, the
circuit court was informed that petitioner had violated his parole and was again incarcerated. On
November 17, 2017, the circuit court held a dispositional hearing. While the DHHR moved to
terminate petitioner’s parental rights, petitioner moved for additional time to complete inpatient
treatment. The circuit court held the DHHR’s motion in abeyance and rescheduled the
dispositional hearing.

         In December of 2017, petitioner entered into an inpatient treatment program, but failed to
complete the program, leaving in January of 2018. Petitioner was arrested shortly thereafter for
violating terms of his release from incarceration. On February 16, 2018, the circuit court held a
final dispositional hearing. At this time, petitioner was sentenced to serve 120 days of
incarceration. Again, petitioner moved for additional time to complete an inpatient treatment
program. However, the circuit court found 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 in the children’s best interests. The circuit court denied his motion for additional time to
complete a treatment program and terminated his parental rights in its February 21, 2018, order.2
It is from this 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).


                                                            
              2
        According to respondents, permanency has been achieved as the children are in the full
custody of their nonabusing mother. 
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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 argues that the circuit court erred in finding that there was no
reasonable likelihood that he could correct the conditions of abuse and neglect in the near future.
We disagree. West Virginia Code § 49-4-604(c)(1) provides that no reasonable likelihood that
the conditions of abuse or neglect can be substantially corrected exists when the parent has
“habitually abused or [is] addicted to alcohol, controlled substances or drugs, to the extent that
proper parenting skills have been seriously impaired and the [parent has] not responded to or
followed through the recommended and appropriate treatment which could have improved the
capacity for adequate parental functioning.”

       Petitioner admits that his substance abuse issues are “significant and debilitating.” While
he argues that addicts frequently relapse before successfully completing treatment, petitioner had
ample time and multiple opportunities during the proceedings, even after his improvement period
was terminated, to obtain substance abuse treatment. Petitioner was unsuccessful in completing
treatment during the proceedings, and at the time of the dispositional hearing he was incarcerated
for 120 days as a result of his continued substance abuse issues. Accordingly, it is clear that there
was no reasonable likelihood that petitioner could substantially correct the conditions of abuse
and neglect in the near future.
        West Virginia Code § 49-4-604(b)(6) 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
children’s welfare. We have held that
       “[c]ourts are not required to exhaust every speculative possibility of parental
       improvement . . . where it appears that the welfare of the child will be seriously
       threatened, and this is particularly applicable to children under the age of three
       years who are more susceptible to illness, need consistent close interaction with
       fully committed adults, and are likely to have their emotional and physical
       development retarded by numerous placements.” Syl. Pt. 1, in part, In re R.J.M.,
       164 W.Va. 496, 266 S.E.2d 114 (1980).
Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4. Here, two of the children at issue in this
appeal are one year old, and one of the children is four years old. Although they have achieved
permanency with their mother, it is important for their early development to remain in a stable
home environment. Petitioner argues that allowing him to continue to seek treatment would
“save the parental relationship between him and his children.” However, due to petitioner’s
failure to remain free from substances, resulting in multiple arrests and incarceration, it is clearly
not in the children’s best interests to foster a relationship with him. Based on this evidence, it is
clear that termination of petitioner’s parental rights was in the children’s best interests.
Therefore, we find no error in the circuit court’s termination of petitioner’s parental rights.

        Further, while petitioner argues that the circuit court erred in terminating his parental
rights without considering a less-restrictive dispositional alternative, we have held that


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               “[t]ermination 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).

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). For these reasons, the
termination of petitioner’s parental rights was appropriate.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 21, 2018, dispositional order is hereby affirmed.


                                                                                          Affirmed.




ISSUED: October 12, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins
 
Justice Allen H. Loughry II, suspended and therefore not participating

 

 




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