                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS
                                                                                     FILED
                                                                                  June 24, 2020
In re C.W.                                                                       EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
No. 19-0936 (Randolph County 18-JA-159)



                               MEMORANDUM DECISION


        Petitioner Father J.W., by counsel J. Brent Easton, appeals the Circuit Court of Randolph
County’s September 11, 2019, order terminating his parental rights to C.W. 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 (“guardian”), Melissa T.
Roman, filed a response on behalf of the child also in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in terminating his parental rights without first
granting him an improvement period.

        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 December of 2018, the DHHR filed a child abuse and neglect petition against the
mother and her boyfriend, alleging that they abused drugs in the home. 2 Specifically, the DHHR


       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).
       2
          Initially, the mother’s boyfriend was listed as the father of C.W. in the petition.
However, subsequent to the filing of the petition, the parties admitted that petitioner was C.W.’s
father and that he and the mother were previously in a relationship. At the time of the petition’s
filing, the mother was in a relationship with her boyfriend, petitioner’s brother. No allegations

                                                                                      (continued . . .)
                                                  1
alleged that it received a referral wherein the reporter claimed that the mother abused drugs,
slurred her words, stumbled, rambled, and made no sense when she spoke. A Child Protective
Services (“CPS”) worker interviewed A.S., the step-sibling of C.W., who disclosed that the
mother “sleeps a lot” and “take[s] pills.” A.S. also disclosed observing petitioner “hit her mom,
yell in her face, and say bad words to her.”

        The DHHR filed an amended petition in February of 2019, adding petitioner to the
proceedings after paternity testing revealed that he was C.W.’s father. The DHHR also alleged
that, during a forensic interview, A.S. made additional disclosures of drug abuse in the home and
reported having observed petitioner hit her mother on one occasion. The DHHR concluded that
petitioner exposed the children to domestic violence, failed to provide adequate supervision, and
failed to protect his child from the abusive and neglectful circumstances that were ongoing in the
home.

        At an adjudicatory hearing held in May of 2019, petitioner stipulated to periodically
abusing controlled substances and engaging in verbal altercations with the mother. The circuit
court accepted petitioner’s stipulation and adjudicated him as an abusing parent. The circuit court
ordered petitioner to submit to a drug screen, and petitioner tested positive for opiates. Petitioner
moved the circuit court for a post-adjudicatory improvement period, but the motion was not
ruled upon at that time. In July of 2019, the guardian filed a report indicating that petitioner
failed to consistently submit to drug screens. The guardian opined that despite petitioner’s severe
drug addiction, he had done nothing to address the same. The guardian recommended
termination of petitioner’s parental rights.

        In August of 2019, the circuit court held a dispositional hearing. The DHHR presented
the testimony of a DHHR worker who testified that petitioner failed to call-in fifteen times
during February of 2019 to ascertain whether he needed to submit to drug screening and only
submitted to three drug screens during that month. Petitioner called in only twice during March
of 2019 and missed six screens. Petitioner failed to call in or submit to any screens in April of
2019. A Community Corrections worker reported that petitioner inconsistently submitted to
screens, tested positive for opiates in May of 2019, and thereafter completely ceased submitting
to screens. Petitioner testified that he worked at a restaurant and in construction. According to
petitioner, he periodically took Hydrocodone to treat aches and pains associated with his physical
labor, but claimed that he was not addicted to the substance. 3 Petitioner also testified that he
maintained housing and was in the process of acquiring a bigger residence to accommodate the
child. Petitioner stated that he would participate in any classes or programs required by the
DHHR if he were granted an improvement period. Despite testimony of the numerous missed
drug screens, petitioner claimed that he fully participated in submitting to drug screens at the


were made against petitioner in the initial petition. Additionally, the mother’s older child, A.S., is
not petitioner’s child and is not at issue on appeal.
       3
        Petitioner failed to provide any prescriptions for Hydrocodone or other opiates during
the proceedings below.



                                                  2
beginning of the case. Petitioner also stated that the DHHR did not properly investigate “who
[he] was as a person” and that he felt like he had been “railroaded.” Further, when asked what
issues he needed to improve upon, petitioner testified, “[h]onestly, I don’t know. If you guys can
advise me on something that would improve my parenting, please do.”

        Ultimately, the circuit court denied petitioner’s motion for a post-adjudicatory
improvement period. The circuit court found that petitioner “had nine months to demonstrate that
[he] will participate in an improvement period and [he] can’t even comply with [the] court’s
order to walk across the street after hearings and screen.” The circuit court also found that the
DHHR provided petitioner with several opportunities, but he rejected those opportunities and
blamed the DHHR for his failures. The circuit court found that petitioner was presently unwilling
or unable to adequately provide for the child’s needs. Further, the circuit court determined that
there was 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 necessary for the child’s
welfare. Petitioner appeals the circuit court’s September 11, 2019, dispositional order
terminating his parental rights. 4

        The Court has previously established the following standard of review in cases such as
this:

                “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).

        Petitioner argues that the circuit court erred in terminating his parental rights without first
granting him a post-adjudicatory improvement period. Petitioner contends that his testimony
indicated that he was likely to fully participate in an improvement period because he
demonstrated that he maintained housing and employment and confirmed that he would
participate in any services offered. Petitioner further contends that he submitted seventeen


        4
         The mother’s parental rights were also terminated below. The permanency plan for the
child is adoption by A.S.’s relative.



                                                  3
negative drug screens throughout the proceedings. According to petitioner, the circuit court
abused its discretion in denying petitioner’s motion for an improvement period and in
terminating his parental rights. We disagree.

        The decision to grant or deny an improvement period rests in the sound discretion of the
circuit court. See In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia
law allows the circuit court discretion in deciding whether to grant a parent an improvement
period.”); Syl. Pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“It is within
the court’s discretion to grant an improvement period within the applicable statutory
requirements[.]”). We have also held that a parent’s “entitlement 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).

         Having reviewed the record, we find that the circuit court did not err in denying
petitioner’s request for an improvement period. The overwhelming evidence set forth below
demonstrates that petitioner failed to consistently submit to drug screens. While petitioner claims
he produced seventeen negative screens, testimony at the dispositional hearing indicated that he
missed numerous screens. In fact, petitioner missed three screens in February of 2019, six
screens in March of 2019, eight screens in April of 2019, seven screens in May of 2019, six
screens in June of 2019, and seven screens in July of 2019. Petitioner did not attempt to call in to
ascertain whether he needed to submit to a drug screen after May of 2019. Petitioner also tested
positive for opiates in May of 2019 and at the dispositional hearing. Moreover, petitioner blamed
the DHHR for his lack of participation, claimed they “railroaded” him, and opined that he did not
know what he needed to improve upon as a parent. We have previously held that failure to
acknowledge the issues of abuse and neglect render an improvement period an “exercise in
futility.” In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted).
Based on petitioner’s failure to comply with drug screens and accept responsibility for his
actions, we find no error in the circuit court’s denial of his motion for an improvement period.

        The evidence as set forth above also demonstrates that the circuit court did not err in
terminating petitioner’s parental rights. West Virginia Code § 49-4-604(b)(6) (2019) 5 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 child’s welfare. West Virginia Code § 49-4-
604(c) (2019) 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 the abusing parent
has “demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own
or with help.”




       5
        Although the Legislature amended West Virginia Code § 49-4-604 effective June 5,
2020, including renumbering the provisions, the amendments do not impact this case.



                                                 4
        Here, the evidence demonstrates that there was no reasonable likelihood that petitioner
could correct the conditions of neglect in the near future. As shown above, petitioner failed to
participate in court-ordered drug screens, tested positive for opiates during the proceedings, and
blamed the DHHR for his failure to participate. Petitioner could not articulate what issues he
needed to address to improve his parenting. Based on the foregoing, it is clear that there was no
reasonable likelihood that petitioner could correct the conditions of abuse and/or neglect and that
termination was necessary for the child’s welfare. While petitioner claims he should have been
granted an improvement period prior to the termination of his parental rights, 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 (2019)] 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) (2019)] 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). Petitioner failed to comply
with the circuit court’s orders below and failed to acknowledge the extent of his actions as of the
dispositional hearing. Accordingly, the circuit court’s findings are fully supported by the record
below, and we find no error in the termination of petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 11, 2019, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: June 24, 2020


CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




                                                5
