                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                   FILED
In Re: I.W.
                                                                              November 24, 2014
                                                                             RORY L. PERRY II, CLERK
No. 14-0513 (Fayette County 13-JA-84)                                      SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Father, by counsel Nancy S. Fraley, appeals the April 30, 2014, order of the
Circuit Court of Fayette County that terminated his parental rights to twenty-month-old I.W. The
child’s guardian ad litem, Thomas A. Rist, filed a response on behalf of the child in support of
the circuit court’s order. The Department of Health and Human Resources (“DHHR”), by its
counsel Katherine M. Bond, also filed a response in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in (1) revoking his post-adjudicatory
improvement period at a hearing in which it declined to transport petitioner from the Southern
Regional Jail; (2) denying his motion for a continuance and proceeding with the dispositional
hearing on April 14, 2014; and (3) terminating his parental rights based on findings that his
testimony was insufficient and not credible.

        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 August of 2013, the DHHR filed an abuse and neglect petition against the child’s
parents. The petition alleged that petitioner abused drugs and the parents engaged in domestic
violence in front of the child. The petition alleged that the child was present when petitioner held
the child’s mother down to the floor and kicked, choked, and punched her. The petition further
alleged that petitioner reported that Child Protective Services (“CPS”) “could just have I.W.
because he was tired of dealing with CPS.” Both parents waived their rights to a preliminary
hearing. Following the hearing, petitioner tested positive for cocaine, opiates, and marijuana.

        In September of 2013, the circuit court granted both parents post-adjudicatory
improvement periods. The circuit court ordered the parents to maintain a clean and safe home
environment, abide by state and federal laws, participate in DHHR services such as adult life
skills classes and marriage counseling, submit to random drug screens, maintain employment,
and submit to psychological evaluations and follow subsequent recommendations. The circuit
court also ordered petitioner to participate in the Batterers’ Intervention and Prevention Program.
After the circuit court granted petitioner this improvement period, he tested positive for cocaine
and opiates.


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        In December of 2013, the DHHR filed a motion to revoke petitioner’s improvement
period based on his non-participation in services and his recent criminal charges of forgery,
uttering, assault, and unlawful restraint. As a result of these charges, petitioner was in jail for the
remainder of the abuse and neglect proceedings. In January of 2014, the circuit court revoked
petitioner’s improvement period and scheduled the final dispositional hearing for April 14, 2014.
At the final dispositional hearing, petitioner’s CPS worker and service provider both testified that
petitioner failed to participate in any of his ordered services, aside from submitting to two drug
screens that yielded positive results for drugs. Both also testified that petitioner failed to keep in
contact with them. Petitioner testified that he attempted to maintain contact with them both and
that there was never any domestic violence in the home.

        Following this hearing, the circuit court entered a dispositional order in which the circuit
court found that petitioner’s testimony lacked credibility, that he was unwilling to provide
adequately for his child’s needs, and that he blamed everybody else in the case except himself.
The circuit court decided that, based on these findings, there was no reasonable likelihood that
the conditions contained in the petition could be substantially corrected in the near future and
ruled that termination was necessary for the child’s welfare and best interests. Petitioner now
appeals to this Court.

       This 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 of the record, we find no error by the circuit court in revoking
petitioner’s post-adjudicatory improvement period, denying his attorney’s motion for a
continuance at the dispositional hearing, and terminating his parental rights. Petitioner argues
that the circuit court erred in revoking his improvement period because it also declined to
transport him from the Southern Regional Jail for the hearing. West Virginia Code § 49-6-12(d)
states, in part, that “[w]hen any improvement period is granted to a respondent [parent] pursuant
to the provisions of this section, the respondent [parent] shall be responsible for the initiation and
completion of all terms of the improvement period.” Further, West Virginia Code § 49-6-12(f)
directs as follows:


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       When any respondent [parent] is granted an improvement period pursuant to the
       provisions of this article, the department shall monitor the progress of such person
       in the improvement period. When the respondent [parent] fails to participate in
       any service mandated by the improvement period, the state department shall
       initiate action to inform the court of that failure. When the department
       demonstrates that the respondent [parent] has failed to participate in any provision
       of the improvement period, the court shall forthwith terminate the improvement
       period.

Petitioner isolates the fact that he was not transported to the hearing and unable to present
evidence at this hearing. However, it is clear from the record that the DHHR demonstrated
petitioner’s failure to participate in his improvement period. The record shows that petitioner
failed to participate in any of his required services, except for two drug screens at which he
tested positive for drugs, or keep contact with his service providers. Accordingly, we find no
error.

        Our review of the record also shows no error by the circuit court at the dispositional
hearing in denying petitioner’s motion for a continuance or in terminating petitioner’s parental
rights to I.W. We have held the following: “Child abuse and neglect cases must be recognized as
being among the highest priority for the courts’ attention. Unjustified procedural delays wreak
havoc on a child’s development, stability and security.” Syl. Pt. 1, in part, In the Interest of
Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991). “[I]n the context of abuse and neglect
proceedings, the circuit court is the entity charged with weighing the credibility of witnesses and
rendering findings of fact.” In re Emily, 208 W.Va. 325, 339, 540 S.E.2d 542, 556 (2000) (citing
Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478, 525 S.E.2d 669 (1999)). We also bear in mind
the following:

               “[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).

Syl. Pt. 4, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

        Under West Virginia Code § 49-6-5(b)(3), a subject parent’s failure to follow through
with rehabilitative efforts to reduce or prevent the abuse and neglect of the children constitutes
circumstances in which there is no reasonable likelihood that the conditions of abuse or neglect
can be substantially corrected. The record shows that petitioner’s counsel was given ample time
to prepare for the dispositional hearing as notice for this hearing was provided months ahead.
Moreover, petitioner’s failure to follow through with the terms and conditions of his
improvement period supports the circuit court’s findings that there was no reasonable likelihood
that the abuse and neglect conditions could be substantially corrected in the near future and that


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termination of petitioner’s parental rights was in I.W.’s best interests. Pursuant to West Virginia
Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon such findings.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: November 24, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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