                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

                                                                                        FILED
In re E.T.                                                                           June 25, 2020
                                                                                   EDYTHE NASH GAISER, CLERK
                                                                                   SUPREME COURT OF APPEALS
No. 19-0945 (Mercer County 17-JA-261-WS)                                               OF WEST VIRGINIA




                               MEMORANDUM DECISION



         Petitioner Father B.T., by counsel David B. Kelley, appeals the Circuit Court of Mercer
County’s September 18, 2019, order terminating his parental, custodial, and guardianship rights to
E.T. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Brandolyn N. Felton-Ernest, filed a response in support of the circuit court’s order. The guardian
ad litem (“guardian”), Joshua J. Lawson, filed a response on behalf of the child in support of the
circuit court’s order. The child’s foster parents, W.S. and T.S., by counsel John E. Williams Jr.,
filed a response in support of the circuit court’s order. On appeal, petitioner argues that the circuit
court erred in denying his motion for a post-dispositional improvement period and terminating his
parental, custodial, and guardianship rights without imposing a less-restrictive dispositional
alternative.

       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 October of 2017, the DHHR filed an abuse and neglect petition against petitioner and
E.T.’s mother alleging that the child was born drug-exposed. 2 The petition alleged that the mother



       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
        The petition alleged that the infant child and the mother tested negative for controlled
substances at the time of delivery, but the “initial urine analysis was not comprehensive of all
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admitted to illegally using Dilaudid and Suboxone during her pregnancy, and that petitioner failed
to protect the child from the mother’s substance abuse during her pregnancy. The DHHR further
alleged that petitioner had a history of domestic violence and was escorted out of the hospital
shortly after E.T.’s birth. Finally, the petition alleged that petitioner abused illegal substances and
alcohol. Thereafter, the circuit court ratified the child’s removal, and petitioner waived his
preliminary hearing.

        In December of 2017, the circuit court held a hearing and heard testimony from several
witnesses, including petitioner, took adjudication “under advisement,” and granted him a
preadjudicatory improvement period. At a review hearing in March of 2018, the DHHR and
guardian requested an adjudicatory hearing after issues with petitioner’s compliance. Before it
could convene for adjudication, the circuit court held an emergency hearing in May of 2018 at the
request of the guardian. According to a circuit court summary, petitioner failed to attend several
visits with the child and made threatening comments to the service providers when he did appear.
While the guardian had previously supported petitioner’s preadjudicatory improvement period, he
requested petitioner’s visits with the child be suspended, which the circuit court granted. In June
of 2018, the circuit court held a hearing and advised petitioner he would be incarcerated if he made
another threat. However, the circuit court granted petitioner visitation with E.T., conditional on
cooperation with the guardian and multidisciplinary team. In August of 2018, the circuit court held
an adjudicatory hearing wherein petitioner stipulated to neglecting E.T. due to his substance abuse.
Petitioner was granted a post-adjudicatory improvement period.

         Between September of 2018 and June of 2019, the circuit court held a series of review
hearings on petitioner’s post-adjudicatory improvement period. At these hearings, the DHHR
testified that petitioner was at times compliant with out-patient drug services and drug screens, but
at other times failed or did not appear for drug screens and struggled to maintain employment,
stable housing, and visit with the child.

        In August of 2019, the circuit court held a final dispositional hearing. At the hearing, the
DHHR moved for termination of petitioner’s parental, custodial, and guardianship rights while the
guardian moved for the termination of petitioner’s custodial rights only. Petitioner requested
additional time and, in the alternative, the termination of his custodial rights only. In requesting
the termination of his parental, custodial, and guardianship rights, the DHHR alleged that
petitioner was noncompliant with several terms of his improvement period. Notably, the DHHR
alleged that petitioner had multiple positive drug screens during his improvement periods and was
unable to secure housing. After the testimony of several witnesses, the circuit court found that
substance abuse remained “an unresolved issue throughout the pendency of this case.”
Specifically, the circuit court found that petitioner had used drugs, had “not compl[ied] with drug
screens,” and had issues with his “temper and his bad attitude toward the service providers both in
and out of court.” Finally, the circuit court found that there was no reasonable likelihood petitioner
could substantially correct the conditions of abuse and neglect, given that he failed to follow
through with the family case plan and associated services. Accordingly, the circuit court terminated



substances.” Further, the petition alleged E.T. was born showing signs of withdrawal as she was
“tight, jittery[,] and had an excoriated bottom” and was treated for those withdrawal symptoms.
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petitioner’s parental, custodial, and guardianship rights to the child. 3 It is from the September 18,
2019, dispositional 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).

Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).

        On appeal, petitioner alleges that the circuit court erred in not providing him a post-
dispositional improvement period because he “tried everything he could and made significant
progress.” Petitioner argues that he should have been allowed more time for a post-dispositional
improvement period, but his motion “was denied because of one setback.” Further, petitioner
argues that terminating his custodial and guardianship rights only would be “surely a better option”
in order for him to build and maintain a relationship with the child. We disagree.

        Notably, petitioner does not dispute that he missed several drug screens and supervised
visits with E.T., instead pointing to periods in his improvement periods when he was compliant.
Yet the record below indicates that petitioner missed several visits throughout the proceedings and
acted inappropriately when he did visit. At one point, the circuit court warned petitioner he could
be incarcerated if he continued to threaten service providers during his visits with the child.
Additionally, while it may be true that petitioner has previously acknowledged struggling with
substance abuse, he has at other times flatly denied such abuse while testing positive on some drug
screens and failing to appear for other screens altogether. Finally, the record reflects that petitioner
struggled to maintain housing and employment throughout the proceedings. Despite this evidence,
petitioner asserts that he largely complied with the terms and conditions of his post-adjudicatory
improvement period and was entitled to more time for a post-dispositional improvement period.

        Petitioner is wrong to assert that he was entitled to any improvement period, as this Court
has held that the granting of an improvement period is a matter of discretion afforded to the circuit
court. In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015). Further, this Court has held
that “a parent charged with abuse and/or neglect is not unconditionally entitled to an improvement


       3
       The mother’s parental, custodial, and guardianship rights were also terminated. The
permanency plan is for the child to be adopted by her current foster family.
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period.” In re Emily, 208 W. Va. 325, 336, 540 S.E.2d 542, 553 (2000). West Virginia Code § 49-
4-610(3)(B) provides that the circuit court may grant a parent a post-dispositional improvement
period when the parent “demonstrates, by clear and convincing evidence, that the [parent] is likely
to fully participate in the improvement period.” “This Court has explained that ‘an improvement
period in the context of abuse and neglect proceedings is viewed as an opportunity for the
miscreant parent to modify his/her behavior so as to correct the conditions of abuse and/or neglect
with which he/she has been charged.’” In re Kaitlyn P., 225 W. Va. 123, 126, 690 S.E.2d 131, 134
(2010) (citation omitted). However, the circuit court has discretion to deny an improvement period
when no improvement is likely. In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002).

        Petitioner’s two assignments of error effectively argue that he should have received more
time to correct the conditions of abuse and neglect that led to the petition. However, the record
reflects that petitioner received both a preadjudicatory improvement period and post-adjudicatory
improvement period. Altogether, petitioner participated in multiple improvement periods from
December of 2017 until the termination of his parental, custodial, and guardianship rights in
August of 2019. Petitioner argues that the DHHR was not required to make efforts to terminate his
parental rights when it did, given that West Virginia Code § 49-4-605(a)(1) requires the DHHR
“to seek a ruling in any pending proceeding to terminate parental rights” when

       a child has been in foster care for 15 of the most recent 22 months as determined
       by the earlier of the date of the first judicial finding that the child is subjected to
       abuse or neglect or the date which is 60 days after the child is removed from the
       home

According to petitioner, this did not apply to the child herein. While it is true that the DHHR was
not required to seek termination under this statute, this Court has nonetheless previously held that

               “[a]lthough it is sometimes a difficult task, the trial court must accept the
       fact that the statutory limits on improvement periods (as well as our case law
       limiting the right to improvement periods) dictate that there comes a time for
       decision, because a child deserves resolution and permanency in his or her life, and
       because part of that permanency must include at minimum a right to rely on his or
       her caretakers to be there to provide the basic nurturance of life.”

State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 260, 470 S.E.2d 205, 214 (1996) (emphasis
added). Accordingly, it is clear that, absent either a statutory requirement for the DHHR to seek
termination of petitioner’s parental rights or a statutory prohibition upon further time for an
improvement period under West Virginia Code § 49-4-610(9), 4 our prior holdings governing the
circuit court’s discretion in granting improvement periods or extensions thereof permitted
termination of petitioner’s parental rights under the facts of this case.




       4
         Pursuant to West Virginia Code § 49-4-610(9), “[n]otwithstanding any other provision of
this section, no combination of any improvement periods or extensions thereto may cause a child
to be in foster care more than fifteen months of the most recent twenty-two months.”
                                                 4
        Despite the extensive time involved in the case, petitioner argues that but for a premature
termination of his improvement period he would have secured necessary housing and overcome
his substance abuse and that he otherwise largely complied with the terms and conditions of his
improvement period. While petitioner is correct that the record shows that he was, at times,
compliant with the terms of his improvement period and that the circuit court permitted the
improvement period to continue after multiple review hearings, he ignores the fact that his
compliance was sporadic. Petitioner tested positive for controlled substances on multiple drug
screens and had difficulties maintaining stable and suitable housing throughout the proceedings.
As such, the record is clear that despite several continuances of his improvement period, petitioner
failed to maintain his compliance throughout the proceedings. Ultimately, petitioner’s assertion
that he substantially complied with the improvement period ignores the fact that his lack of suitable
housing, failure to stay drug free, mistreatment of service providers, and lack of candor with the
circuit court were not remedied sufficiently to justify the return of the child to his care.

        Moreover, this evidence also supports a finding that termination of parental, custodial, and
guardianship rights was necessary for the welfare of the child. Clearly, petitioner presented a
danger to the child if in his custody. Additionally, “we find that adoption, with its corresponding
rights and duties, is the permanent out-of-home placement option which is most consistent with
the child’s best interests.” State v. Michael M., 202 W. Va. 350, 358, 504 S.E.2d 177, 185 (1998)
(internal quotations omitted). The circuit court’s termination of petitioner’s parental, custodial, and
guardianship rights to E.T. was necessary to facilitate adoption for the child. As such, it is clear
that termination of petitioner’s parental, custodial, and guardianship rights was necessary to
provide permanency for the child and, therefore, necessary for his welfare. Further, we have long
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) 5] . . . 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). Accordingly, we find no error
in the circuit court’s order terminating petitioner’s parental, custodial, and guardianship rights
without the imposition of a less restrictive alternative.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 18, 2019, order is hereby affirmed.


                                                                                            Affirmed.



       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.
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ISSUED: June 25, 2020

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




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