                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In Re: A.W., Z.W., & M.W.                                                         FILED
                                                                                 June 2, 2014
No. 14-0018 (Raleigh County 12-JA-156, 157 & 158)                            RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA


                                MEMORANDUM DECISION

        Petitioner Father, by counsel Michael P. Cooke, appeals the Circuit Court of Raleigh
County’s December 6, 2013, order terminating his parental rights to the children, A.W., Z.W.,
and M.W. The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel William P. Jones, filed its response in support of the circuit court’s order. The guardian
ad litem, Colleen M. Brown-Bailey, 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 his
motion for a post-adjudicatory 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 November of 2011, the DHHR filed an abuse and neglect petition alleging that
petitioner’s child, M.W., was born with drugs in her system and suffering from withdrawal. The
mother admitted to Child Protective Services (“CPS”) that she used cocaine intravenously during
pregnancy. The petition further alleged that the mother would routinely leave the child in the
care of others with little to no notice and was not providing the child with adequate care. As to
petitioner, the DHHR alleged that he was in arrears and had never made child support payments
for M.W. or his other two children, A.W. and Z.W.1 Petitioner waived his right to a preliminary
hearing.

       In February of 2013, the circuit court held an adjudicatory hearing, but the same was
continued so that a DNA test could be performed to determine whether petitioner was M.W.’s
biological father. After testing confirmed that M.W. was petitioner’s biological child, the circuit
court held a second adjudicatory hearing in April of 2013, but the hearing was again continued
because petitioner was incarcerated and not transported to the hearing.2 Finally, in June of 2013,

       1
          At the time the petition was filed below, both A.W. and Z.W. lived in the homes of non-
abusing relatives.
        2
          According to petitioner, he was incarcerated following a conviction for fraudulent use of
a credit card.


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the circuit court held a third adjudicatory hearing and found petitioner to be an abusing parent.
The next day, petitioner filed a motion for a post-adjudicatory improvement period, which the
circuit court denied at a hearing in August of 2013. In November of 2013, the circuit court held a
dispositional hearing. Due to confusion regarding the adjudicatory findings, the circuit court
reconciled the issue by hearing additional testimony regarding petitioner’s care of M.W. before
finding that petitioner abandoned the child. The circuit court then terminated petitioner’s parental
rights. It is from the 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). Upon our review, the Court finds
no error in the circuit court denying petitioner a post-adjudicatory improvement period. Pursuant
to West Virginia Code § 49-6-12(b)(2), a circuit court has discretion to grant a post-adjudicatory
improvement period if the parent “demonstrates, by clear and convincing evidence, that [he or
she] is likely to fully participate in the improvement period . . . .” The record here is clear that
petitioner could not satisfy this burden.

        Petitioner’s argument in support of awarding a post-adjudicatory improvement period,
both in the circuit court and on appeal, is premised upon speculation that he would be able to
fully participate “if he were given an alternative sentence,” as opposed to incarceration, in his
unrelated criminal proceedings. Additionally, petitioner argues that he established he was likely
to fully participate in an improvement period because while incarcerated, he participated in
substance abuse classes and obtained his GED. However, as respondents point out on appeal,
petitioner provided no evidence in support of these claims beyond his own self-serving
testimony.

        In denying petitioner’s motion for a post-adjudicatory improvement period, the circuit
court relied upon several factors in determining that petitioner was unlikely to fully participate.
These include his lack of contact with the child prior to his incarceration, and “the impossibility
of formulating a case plan in view of [petitioner’s] incarceration for at least the next several
months . . . .” As noted above, petitioner’s arguments in support of his motion for an
improvement period were highly speculative in regard to his ability to fully participate. We have

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previously held that “courts are not required to exhaust every speculative possibility of parental
improvement before terminating parental rights where it appears that the welfare of the child will
be seriously threatened . . . .” Syl. Pt. 4, in part, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55
(2011) (quoting Syl. Pt. 1, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980)). For these
reasons, we find no error in the circuit court’s decision to deny petitioner a post-adjudicatory
improvement period.

     For the foregoing reasons, we find no error in the decision of the circuit court and its
December 6, 2013, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: June 2, 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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