                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                     FILED
In re G.P., L.W., B.P., and J.P.
                                                                                 October 12, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0314 (Putnam County 17-JA-40, 41, 43, and 44)                             SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
         Petitioner Father K.P., by counsel Benjamin Freeman, appeals the Circuit Court of
Putnam County’s March 8, 2018, order terminating his parental rights to G.P., L.W., B.P., and
J.P.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
S.L. Evans, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Catherine Bond Wallace, filed a response on behalf of the children also in support
of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying
him a post-dispositional improvement period and terminating his parental rights when less-
restrictive alternatives existed.

        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 April of 2017, the DHHR filed a child abuse and neglect petition against petitioner,
alleging that he exposed the children to domestic violence; failed to supply the children with
necessary food, clothing, shelter, supervision, medical care, and/or education; and threatened the
children’s physical and/or mental health. Petitioner purposefully avoided Child Protective
Services (“CPS”) workers who were attempting to enact safety plans for the children and service
providers who were trying to provide parenting and adult life skills classes. Petitioner failed to
respond to attempts to notify him of a medical emergency for one of the children. The DHHR
alleged that petitioner had a drug abuse problem which impaired his parenting abilities.
Petitioner waived his preliminary hearing and requested a preadjudicatory improvement period,
which was denied.


                                                            
              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).


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        In May of 2017, the circuit court held an adjudicatory hearing wherein petitioner again
requested a preadjudicatory improvement period, which was denied. Petitioner then stipulated to
the allegations contained in the petition, specifically admitting that his drug use seriously
impaired his parenting skills and that he exposed the children to domestic violence. The circuit
court accepted petitioner’s stipulation and adjudicated him as an abusing parent.

        In July of 2017, the circuit court held an initial dispositional hearing. Petitioner requested
a post-adjudicatory improvement period, which was granted. As part of the terms and conditions,
petitioner was ordered to submit to drug screens, maintain suitable housing, maintain
employment, participate in services, and participate in a Batterer’s Intervention Program (“BIP”).

        The circuit court held a status hearing in December of 2017. The DHHR moved the
circuit court to terminate petitioner’s post-adjudicatory improvement period based upon his
noncompliance with the same. Specifically, a summary provided to the circuit court indicated
that, while petitioner was attending parenting and adult life skills classes, he was not benefitting
from them. Petitioner did not provide proof of employment, as required, and would be dismissed
from the BIP if he was absent from one more session. Petitioner failed to appear for several of
his drug screens and, on three occasions that he did appear, tested positive for methamphetamine.
Finally, petitioner admitted to a service provider that he continued to consume alcohol despite
attending Alcoholics Anonymous (“AA”) meetings. Ultimately, based upon these facts, the
circuit court found that petitioner failed to substantially comply with his improvement period and
terminated the same.

        In January of 2018, the circuit court held a dispositional hearing wherein it deferred
disposition for thirty days to allow petitioner further time to comply with services. The hearing
was reconvened in February of 2018. After hearing arguments, the circuit court terminated
petitioner’s parental rights upon findings that he was unable and/or unwilling to provide
adequately for the children, there was no reasonable likelihood that he could correct the
conditions of neglect and abuse in the near future, and the children’s best interests necessitated
termination. It is from the March 8, 2018, dispositional order that petitioner appeals.2

              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

                                                            
              2
         G.P.’s mother was a non-abusing parent during the proceedings below and was
dismissed from the matter. Prior to the initiation of the underlying proceedings, G.P.’s
grandmother was granted guardianship of the child and the permanency plan for the child is to
remain in her care. The parental rights of B.W., the mother of L.W., B.P., and J.P., were
terminated below. B.P. and J.P. were placed in a foster home with a permanency plan of
adoption therein. L.W. is undergoing treatment at Highland Hospital and the permanency plan
for the child is adoption pending her release.
                                                               2

 
       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 argues that the circuit court erred in denying him a post-
dispositional improvement period. According to petitioner, he was making progress in his
services such that he should have been given more opportunity to “better his behavior and
parenting skills.” Petitioner also argues that the circuit court improperly considered the mother
B.W.’s failures in denying his request for a post-dispositional improvement period. We find
petitioner’s argument to be without merit.

         Pursuant to West Virginia Code § 49-4-610(3)(D), a circuit court may grant a parent an
improvement period at disposition if, “the [parent] demonstrates that since the initial
improvement period, the [parent] has experienced a substantial change in circumstances. Further,
the [parent] shall demonstrate that due to that change in circumstances, the [parent] is likely to
fully participate in the improvement period . . . .” In his brief on appeal, petitioner does not
reference or allege any substantial change in circumstances since his initial improvement period.
Further, petitioner fails to demonstrate that he was likely to participate in a post-dispositional
improvement period given his poor adherence to the terms of his post-adjudicatory improvement
period. Petitioner did not submit to several of the required drug screens which the circuit court
treated as positive screens. Further, petitioner tested positive for methamphetamine on three
occasions during his post-adjudicatory improvement period and continued to consume alcohol
despite his participation in AA meetings. The summary provided to the circuit court indicated
that, although petitioner attended parenting and adult life skills classes, he failed to demonstrate
any benefit from the services. Moreover, petitioner was granted thirty additional days to comply
with services after his improvement period was terminated, but he failed to do so. While
petitioner argues that the circuit court improperly considered the mother’s failures in denying his
motion, we find that the circuit court had sufficient evidence to deny petitioner’s request in light
of the overwhelming evidence that petitioner himself substantially failed to comply with the
terms and conditions of his improvement period and demonstrated no likelihood of compliance
in the near future. Accordingly, we find no error.

        Petitioner next argues that the circuit court erred in terminating his parental rights.
Specifically, petitioner argues that the evidence did not support termination of his parental rights
because he was “making progress, however slowly, in cooperating with the DHHR to improve
his parenting skills and living situation.” Petitioner argues that the circuit court should not have
terminated his parental rights when less-restrictive alternatives, such as terminating only his
custodial rights, were available. We disagree.



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        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. According to West Virginia Code § 49-4-604(c)(3), a situation in which there
is no reasonable likelihood the conditions of abuse and neglect can be substantially corrected
includes one in which

       [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[.]

        While petitioner argues that he was “slowly” making progress, we agree with the circuit
court’s finding that he failed to comply with services which were designed to reduce or prevent
the abuse and neglect of the children. Here, petitioner tested positive for drugs throughout the
proceedings, missed several drug screens and BIP sessions, and failed to benefit from his
parenting classes. To the extent that petitioner now argues that his slow progress demonstrated
compliance, we note that we have previously held that “[i]n making the final disposition in a
child abuse and neglect proceeding, the level of a parent’s compliance with the terms and
conditions of an improvement period is just one factor to be considered. The controlling standard
that governs any dispositional decision remains the best interests of the child.” Syl. Pt. 4, In re
B.H., 233 W.Va. 57, 754 S.E.2d 743 (2014). Contrary to petitioner’s argument, the record
establishes that termination of parental rights was in the best interests of the children. In fact, the
guardian disclosed at the final hearing that the children were disappointed with petitioner’s lack
of effort during the proceedings and were ready to move forward with adoption with their
respective placements.

       While petitioner argues that less-restrictive alternatives to termination, such as
termination of his custodial rights, were available, we have previously held

               “[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). Having reviewed the record,
we agree with the circuit court’s finding that there was no reasonable likelihood that petitioner
could correct the conditions of abuse in the near future and that termination was necessary for the
children’s welfare. Because circuit courts are permitted to terminate parental rights upon such
findings, we find no error.



                                                  4

 
      For the foregoing reasons, we find no error in the decision of the circuit court, and its
March 8, 2018, 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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