                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS

                                                                                       FILED
In re E.W.-1                                                                      February 23, 2018
                                                                                   EDYTHE NASH GAISER, CLERK
No. 17-0870 (Kanawha County 17-JA-145)                                             SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Father, E.W.-2, by counsel Benjamin Freeman, appeals the Circuit Court of
Kanawha County’s August 30, 2017, order terminating his parental rights to E.W.-11 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Steven R.
Compton, 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 child in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in not granting him a
post-dispositional improvement period and finding that the Circuit Court of Kanawha County
was the proper venue for these proceedings.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.

        On March 23, 2017, the DHHR filed an abuse and neglect petition against petitioner. The
petition alleged that petitioner’s substance abuse issues and homelessness prevented him from
being an appropriate parent. Petitioner was not present for the preliminary hearing, but was
represented by counsel. During the preliminary hearing, it was discovered that there was a
similar petition against petitioner pending in the Circuit Court of Lincoln County. However, the




                                                            
              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 the child and petitioner have the same
initials, they will be referred to as E.W.-1 and E.W.-2, respectively, throughout this
memorandum decision.
              2
                  Petitioner makes no specific assignment of error as to the termination of his parental
rights.
                                                                   1

 
judges in both matters conferred and decided that Kanawha County should be the proper forum.
No party objected to the determination of venue.3

        On May 31, 2017, the circuit court held an adjudicatory hearing, at which petitioner did
not appear, but was represented by counsel. The mother testified to her drug use as well as the
drug use that occurred in the home. A Child Protective Services (“CPS”) worker testified that
petitioner signed a family case plan in February and then tested positive for methamphetamines
the next day. As a result of his positive drug screen, petitioner’s visits with the child were
suspended. Petitioner was adjudicated as an abusing parent.

         On July 14, 2017, the circuit court held a dispositional hearing wherein it denied
petitioner’s motion for a post-adjudicatory improvement period. A service provider testified that
petitioner had a suitable residence, but continued to test positive for illegal drugs. As a result,
petitioner was not permitted to visit with the child. The service provider testified that petitioner
works odd jobs. Petitioner testified that, if drug tested, he would test positive for opiates and
methamphetamine. However, petitioner stated he did not believe he had a drug problem and that
he obtains opiates from older people for whom he does odd jobs. A Lincoln County CPS worker
testified that she made numerous attempts to help petitioner with his drug problem, but was not
successful. A Kanawha County CPS worker testified that the DHHR made reasonable efforts to
reunify the family and that she felt that termination of petitioner’s parental rights was in the best
interests of the child. The circuit court found no reasonable likelihood that petitioner could
correct the conditions of abuse and neglect in the near future and that it was in the child’s best
interests to terminate his parental rights. The circuit court also found post-termination visitation
to be contrary to the child’s best interests. Ultimately, the circuit court terminated petitioner’s
parental rights in its August 30, 2017, order.4 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
                                                            
              3
         Although petitioner received services in Lincoln County, the proceedings there never
progressed beyond the filing of the petition and the matter was subsequently dismissed.
 
              4
        In addition to the termination of petitioner’s parental rights, the mother’s parental rights
were also terminated. According to the guardian and the DHHR, the child is placed in a foster
home with a permanency plan of adoption in that home.
                                                               2

 
       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.
        
        First, petitioner argues that the circuit court erred in refusing to grant him a post-
dispositional improvement period. Petitioner argues that it is in the best interests of the child for
him to receive a post-dispositional improvement period and that he could correct his drug abuse
issues with proper treatment. Petitioner believes that the child may be emotionally and
psychologically damaged if he were to remain in foster care with “caregivers who are essentially
strangers.” Finally, he argues that the circuit court denied him the opportunity to make
improvements to his “parental shortcomings.”

        Pursuant to West Virginia Code § 49-4-610(3), a circuit court may grant a post-
dispositional improvement period when the parent “moves in writing for the improvement
period” and “demonstrates, by clear and convincing evidence, that the [parent] is likely to fully
participate in the improvement period[.]” Here, petitioner failed to present any evidence to show
that he would be likely to comply with an improvement period. Petitioner continued to use drugs
throughout the proceedings, despite the fact that he was offered services to remedy the issue.
Petitioner’s argument ignores the fact that he failed to make any progress with the DHHR’s
assistance during the proceedings. Finally, petitioner makes no citation to the record on appeal to
indicate that he moved for a post-dispositional improvement period.

       We have also held that
       [i]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
       of the basic allegation pertaining to the alleged abuse and neglect or the
       perpetrator of said abuse and neglect, results in making the problem untreatable
       and in making an improvement period an exercise in futility at the child’s
       expense.

In re Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Here, petitioner failed to acknowledge his drug
abuse issues and, despite the CPS workers’ attempts to help him with his addiction, he continued
to test positive on drug screens. Due to his failure to acknowledge his drug abuse issues, to grant
petitioner a post-dispositional improvement period would be futile. Therefore, we find that
petitioner failed to satisfy the applicable burden to obtain a post-dispositional improvement
period and we find no error by the circuit court in this regard.

       Petitioner also argues that the circuit court erred in finding that Kanawha County, rather
than Lincoln County, was the proper venue for these proceedings. Petitioner is a resident of
Lincoln County and argues that a petition was filed in Lincoln County months before the petition
was filed in Kanawha County. Accordingly, petitioner argues that the proceedings should have
remained in Lincoln County because, pursuant to West Virginia Code § 49-4-601(a), a petitioner
may not file a petition under the same set of facts in more than one county. We disagree.

                                                 3

 
        First, although petitioner is correct that a party may not file an abuse and neglect petition
in more than one county based on the same set of facts, under West Virginia Code § 49-4-601(a),
Kanawha County is a proper venue for these proceedings given that one of the respondents
resided in Kanawha County. The record indicates that no proceedings took place in Lincoln
County after a procedural order was entered filing the petition and that the Lincoln County abuse
and neglect case was dismissed. Further, petitioner does not argue that he was prejudiced by the
proceedings being held in Kanawha County and fails to acknowledge that throughout the
proceedings in Kanawha County, the DHHR provided services to him in Lincoln County.
Furthermore, the Lincoln County and Kanawha County circuit courts conferred and determined
that there was no good cause to transfer the matter to Lincoln County in an effort to promote his
compliance. Therefore, we find no error in the circuit court’s decision that Kanawha County was
an appropriate venue for these proceedings.

      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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