                             STATE OF WEST VIRGINIA                                  FILED
                           SUPREME COURT OF APPEALS
                                                                             February 16, 2016
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
In re: J.P., H.P.-1, H.P.-2, L.P., and E.P.1                                      OF WEST VIRGINIA


No. 15-0777 (Taylor County 13-JA-21, 13-JA-22, 13-JA-23, 13-JA-24, and 13-JA-25)


                              MEMORANDUM DECISION

        Petitioner Father T.P., by counsel Roger Curry, appeals the Circuit Court of Taylor
County’s June 7, 2015, order terminating his parental rights to H.P.-1, H.P.-2, L.P., and E.P., and
his custodial rights to J.P. The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Lee Niezgoda, filed its response in support of the circuit court’s order.
The guardian ad litem (“guardian”), Mary S. Nelson, filed a response on behalf of the children
supporting the circuit court’s order. On appeal, petitioner alleges that the circuit court erred in
denying him a post-dispositional improvement period or in terminating his parental rights to
H.P.-1, H.P.-2, L.P., and E.P. 2

        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 November of 2013, the DHHR filed an abuse and neglect petition alleging that
petitioner abused and neglected his five children, J.P., H.P.-1, H.P.-2, L.P., and E.P. The petition
also alleged that the children’s mother, A.K., abused and neglected the children. Specifically, the
petition alleged that the parents engaged in domestic violence in the children’s presence, failed to
provide the children with a safe and sanitary home, failed to assure that the children regularly
attended school, failed to secure the children with proper medical and dental care, and regularly
abused drugs in the children’s presence.



       1
        Two of the children have the same initials and, as such, will be identified as H.P.-1 and
H.P.-2 respectively.
       2
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.


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       In April of 2014, the circuit court held an adjudicatory hearing. Petitioner stipulated that
he was addicted to drugs and alcohol. Specifically, petitioner admitted to the following: that he
spent a large amount of the family’s resources on drugs; that the children went to school dirty
and unkempt; that he failed to provide the children with proper medical and dental care; that the
home was dirty and infested with fleas and bed bugs; and that he and the mother, A.C., engaged
in domestic violence in the presence of the children. Following petitioner’s admissions at the
hearing, the circuit court granted him a sixth-month post-adjudicatory improvement period.

         In December of 2014, the circuit court held a hearing and heard the in camera testimony
of all five children. All the children testified that they observed petitioner snorting pain pills, that
their home was dirty and smelled “bad,” and that their pets regularly urinated and defecated in
their beds. The children also testified that they did not have hot water and that the electric and
water in the home was shut-off due to unpaid bills. The children also confirmed that their parents
were physically and emotionally abusive to each other in their presence. Some of the children
disclosed that they were ridiculed at school due to ill-fitting clothing and their poor hygiene.
Petitioner also testified at the hearing and admitted that he was aware of the ridicule the children
suffered due to their lack proper clothing and hygiene. Evidence presented at the hearing
established that petitioner failed to comply with the terms and conditions of his improvement
period, failed to participate in drug screens, and tested positive for non-prescribed drugs on
multiple occasions. Petitioner also failed to complete individual therapy, the Batterer’s
Intervention Program, or any domestic violence services as required by his improvement period.

        In May of 2015, the circuit court held a dispositional hearing. Based upon the evidence,
the circuit court found that the DHHR provided petitioner with reasonable services and that
petitioner failed to substantially comply with those services. The circuit court also found that
there is no reasonable likelihood that petitioner will substantially correct the issues of abuse and
neglect in the near future. Based upon those findings, the circuit court terminated petitioner’s
parental rights to H.P.-1, H.P.-2, L.P., and E.P. and terminated only his custodial rights to J.P.
because the child requested that petitioner retain his parental rights. Petitioner now appeals this
dispositional order.

       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).

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Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon review, we find no error in
the circuit court’s order denying petitioner’s motion for a post-dispositional improvement period
or in terminating his parental rights.

       First, the court finds no merit to petitioner’s argument that the circuit court erred in
denying him a post-dispositional improvement period because, according to petitioner, the circuit
court should “craft a relaxed approach and disposition short of termination when the case
involves an addict, whose addiction remains unchecked.”3 We disagree and find that petitioner’s
argument ignores the evidence set forth in the record on appeal.

        It is clear from the record on appeal that petitioner failed to comply with several of the
terms of his post-adjudicatory improvement period. Despite petitioner’s stipulations to drug
abuse, domestic violence, and the neglect of his children, petitioner failed to utilize the services
offered to him, minimized his drug use, and failed to make any progress toward remedying his
substance abuse issues. Throughout the case, petitioner continued to use drugs, failed to submit
to random drug screens, failed to call the drug testing hotline, and failed multiple drug screens
for multiple types of drugs. Petitioner asserted that he was no longer using drugs but could not
account for his positive drug screens. Petitioner also asserted that he did not know what service
he needed to complete even though the services and conditions required by his improvement
period were discussed at multidisciplinary team (“MDT”) meetings and hearings. Based upon
this evidence, the circuit court found that petitioner was dishonest in his assertions that he did not
know which services he needed to complete and regarding his ongoing drug abuse. The circuit
court also determined that petitioner failed to make substantial changes to the conditions that led
to the abuse and neglect of his children, and that he continued to abuse drugs.

        We have previously held that a parent’s “entitlment to an improvement period is
conditioned upon the ability of the parent to demonstrate ‘by clear and convincing evidence, that
the respondent is likely to fully participate in the improvement period . . .’” In re: Charity H.,
215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004). In the instant case, petitioner continued to
abuse drugs, failed to comply with drug screening, and failed to participate in multiple services
aimed at remediating and addressing the circuit court’s findings of abuse, neglect, and drug
abuse. Petitioner made no efforts to address his addictions or his participation in domestic
violence. We have also previously held that

               “[i]n order to remedy the abuse and/or neglect problem, the problem must
       first be acknowledged. Failure to acknowledge the existence of the problem, i.e.,

       3
         It should be noted that petitioner did not request a post-dispositional improvement period
at the dispositional hearing. Pursuant to § 49-4-610(3), “the court may grant an improvement
period not to exceed six months as a disposition pursuant to section six hundred four of this
article when (A) The respondent moves in writing for the improvement period, and when (B) the
respondent demonstrates, by clear and convincing evidence, that the respondent is likely to fully
participate in the improvement period and the court further makes a finding, on the record, of the
terms of the improvement period.”


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       the truth of the basic allegation pertaining to the alleged abuse and neglect or the
       perpetrator of said abuse and neglect, results in making the problem untreatable
       and in making an improvement period an exercise in futility at the child’s
       expense.” Id. at 217, 640.

In re Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013). Petitioner failed to be honest
regarding his ongoing drug abuse or his knowledge of the services he needed to complete to
comply with his case plan. As such, it was not error for the circuit court to deny petitioner a post-
dispositional improvement period.

       As to petitioner’s argument that the circuit court erred in terminating his parental rights,
the Court finds no error. As addressed above, the evidence established that petitioner continued
to abuse drugs, failed to comply with drug screening, and failed to participate in multiple
services aimed at remediating and addressing the circuit court’s findings of abuse, neglect, and
drug abuse. Petitioner also denied abusing drugs even after returning multiple positive drug
screens. Additionally, petitioner made no efforts to address his issues with domestic violence.

       Pursuant to West Virginia Code § 49-4-604(c)(3), there is no reasonable likelihood the
conditions of abuse or neglect can be substantially corrected when

               “[t]he abusing parent or parents have 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.”

Here, the circuit court was presented with sufficient evidence to make this finding in regard to
petitioner based upon the evidence outlined above. Simply put, petitioner continued to abuse
drugs while refusing to participate in multiple services aimed at remediating and addressing the
underlying issues of abuse and neglect. The circuit court also found that the termination of
petitioner’s parental rights was in the children’s best interests. Pursuant to West Virginia Code §
49-4-604(b)(6), circuit courts are directed to terminate parental rights upon these findings.
Further, we have previously 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).

Syl. Pt. 4, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). As such, it was not error for the
circuit court to terminate petitioner’s parental rights.



                                                 4


        For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 7, 2015, order is hereby affirmed.

                                                                                       Affirmed.

ISSUED: February 16, 2016

CONCURRED IN BY:



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




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