                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS

                                                                                      FILED
In re K.R., A.R.-1, and A.R.-2                                                   February 23, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 17-0884 (Kanawha County 17-JA-140, 141, and 142)                             SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Father T.R., by counsel Michael M. Cary, appeals the Circuit Court of
Kanawha County’s August 30, 2017, order terminating his parental rights to K.R., A.R.-1 and
A.R.-2.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
William P. Jones, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Christopher C. McClung, filed a response on behalf of the children in support of
the circuit court’s order. On appeal, petitioner argues that the circuit court erred in not affording
him an improvement period.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 March of 2017, the DHHR filed an abuse and neglect petition against petitioner
alleging he abused and neglected his three children. The petition alleged that petitioner
manufactured methamphetamine in the home and that the parents used it while caring for the
children. According to the DHHR, the mother left the home due to domestic violence between
her and petitioner. The petition also alleged that the children suffered from educational and
medical neglect. The DHHR also described the home as dirty and without electricity, a working
stove, and sufficient food. Finally, the petition alleged that petitioner was unemployed. Petitioner
waived his preliminary hearing. The circuit court ordered petitioner to avail himself to parenting
and adult life skills classes and supervised visitations, conditioned upon submitting to a
                                                            
              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). Additionally, because two of the children have the same
initials, they will be referred to as A.R.-1 and A.R.-2, respectively, throughout this memorandum
decision.
              2
        Petitioner does not raise a specific assignment of error challenging the termination of his
parental rights.
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psychological evaluation and providing negative drug screens. Petitioner denied that he had an
addiction to drugs.

        In May of 2017, the circuit court held an adjudicatory hearing at which petitioner did not
appear in person, but was represented by counsel. The mother testified that she and petitioner
abused drugs when they lived together and that it negatively affected her ability to parent the
children. She testified that she left the home because of domestic violence and drug abuse and
admitted that she knowingly left the children in an environment where petitioner continued to
abuse drugs. She further testified that she noticed signs to suggest that one of the children was
sexually abused in the home. Specifically, she observed blood in K.R.’s bed and petitioner
informed her that the child fell and busted her lip, but the mother did not see any broken skin on
the child’s lip. However, the mother took no action to address the abuse. Based on the evidence
presented, the circuit court adjudicated petitioner as an abusing parent.

        In July of 2017, the circuit court held a dispositional hearing for which petitioner failed to
appear. However, petitioner was represented by counsel. The circuit court heard testimony and
evidence of the mother’s continued drug use and positive drug screens. According to the DHHR,
petitioner failed to follow a family case plan and failed to demonstrate a capacity to solve the
problems of abuse and neglect. Accordingly, the circuit court found no reasonable likelihood that
the conditions of abuse and neglect could be corrected in the near future, that termination was in
the best interests of the children, and that post-termination visitation was not in the best interests
of the children. Ultimately, the circuit court terminated petitioner’s parental rights in its August
30, 2017, order.3 It is from this 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 proceedings below.

                                                            
              3
        In addition to petitioner’s parental rights being terminated, the mother’s parental rights
were also terminated. The children are placed in a foster home and the permanency plan is
adoption in that home.
                                                               2

 
        On appeal, petitioner argues that the circuit court erred in not affording him a meaningful
improvement period. According to petitioner, he “would have been more than willing to
participate in the [c]ourt ordered services[.]” The Court, however, finds no error in the circuit
court’s refusal to grant petitioner an improvement period.

         Pursuant to West Virginia Code § 49-4-610, a circuit court may grant an improvement
period when the parent “files a written motion requesting the improvement period” and
“demonstrates, by clear and convincing evidence, that the [parent] is likely to fully participate in
the improvement period[.]” Here, the record shows that following the preliminary hearing, the
circuit court ordered petitioner to avail himself for services including parenting classes, drug
screens, and visitation. However, petitioner failed to participate in any services. Further,
petitioner failed to request an improvement period, in writing or otherwise, and failed to attend
any hearing after the preliminary hearing. Based on this evidence, we find that petitioner failed
to satisfy the applicable burden to obtain an improvement period.

        We have also noted that 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) (holding that “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) (holding that “[i]t is within the court’s discretion to grant an improvement
period within the applicable statutory requirements”). Because petitioner failed to satisfy the
applicable burden for obtaining an improvement period, we find no abuse of discretion in the
circuit court’s refusal to grant petitioner the same.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 30, 2017, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: February 23, 2018


CONCURRED IN BY:

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

 




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