                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                      FILED
In re P.A.
                                                                                 February 23, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No.) 17-0704 (Mercer County 16-JA-77)                                            SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner C.C., former custodian of the child, by counsel John G. Byrd, appeals the
Circuit Court of Mercer County’s July 13, 2017, order terminating his custodial rights to P.A.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”), P. Michael Magann, filed a response on behalf of the child also in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating his
custodial rights when the mother was still completing her 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 April of 2016, the DHHR filed an abuse and neglect petition against petitioner and the
mother, alleging that they abused the child due to instances of domestic violence and drug abuse.
Petitioner, the mother’s boyfriend, is not P.A.’s biological father. In its petition, the DHHR noted
several instances of domestic violence between the couple and alleged that petitioner tested
positive for Suboxone without a prescription. Petitioner waived his right to a preliminary hearing
and the adjudicatory hearing was scheduled.

        The circuit court held an adjudicatory hearing in June of 2016, during which petitioner
stipulated to abusing and neglecting the child through domestic violence in the home and drug
abuse. The circuit court accepted petitioner’s stipulation and granted him a post-adjudicatory
improvement period. As part of his improvement period, petitioner was required to participate in
drug screens, execute a release to disclose his substance abuse treatment records, secure
independent housing, and obtain employment.
                                                            
              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).


                                                                   1

 
        The circuit court held several review hearings to address petitioner’s progress in his post-
adjudicatory improvement period. Subsequent to the adjudicatory hearing, petitioner was
arrested and charged with attempt to commit a felony and conspiracy, tested positive for cocaine
following his release from incarceration, and had a mental hygiene petition filed against him.
The DHHR requested that petitioner be ordered to undergo a psychological evaluation. The
circuit court granted the DHHR’s request and extended petitioner’s improvement period. In
March of 2017, the circuit court was advised that petitioner was arrested and incarcerated for a
hit-and-run and driving with a suspended license. Petitioner was released and placed on home
incarceration, but was arrested again because he violated the terms of his home incarceration.
The circuit court scheduled a dispositional hearing.

        In June of 2017, the circuit court held a dispositional hearing, during which it heard the
testimony of a DHHR worker who testified that petitioner had not complied with the terms of his
improvement period. Petitioner had been arrested several times and refused to seek long-term
substance abuse treatment against the advice of the psychological evaluation report. Petitioner
presented no evidence. The circuit court found that petitioner had not participated in his
improvement period and did not want to have a relationship with the child. As such, the circuit
court terminated petitioner’s custodial rights.2 It is from this dispositional order dated July 13,
2017, that petitioner appeals.

              The Court has previously established the following standard of review in cases such as
this:

                      “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).

       Petitioner argues on appeal that the circuit court erred in terminating his custodial rights
when the mother was still completing her improvement period. Specifically, petitioner argues

                                                            
              2
       The mother successfully completed an improvement period and the petition against her
was dismissed. The father’s parental rights were involuntarily terminated and he did not appeal.
The permanency plan for P.A. is to remain with her mother. 
                                                               2

 
that a less-restrictive alternative to termination of his custodial rights would have been
continuing his post-adjudicatory improvement period or granting him a post-dispositional
improvement period as the proceedings were still ongoing regarding the mother. We disagree.
We have previously held that West Virginia Code § 49-4-604 “permits the termination of one
parent’s parental rights while leaving the rights of the non[-]abusing parent completely intact, if
the circumstances so warrant.” In re Emily, 208 W.Va. 325, 344, 540 S.E.2d 542, 561 (2000).
Further, “simply because one parent has been found to be a fit and proper caretaker for [the]
child does not automatically entitle the child’s other parent to retain his/her parental rights if
his/her conduct has endangered the child and such conditions of abuse and/or neglect are not
expected to improve.” Id. Although petitioner is not the child’s parent, these holdings still apply
to the termination of his custodial rights while leaving the mother’s parental rights intact.

         Moreover, pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to
terminate parental, custodial, and guardianship rights upon findings that there is no reasonable
likelihood the conditions of abuse and neglect can be substantially corrected in the near future
and when necessary for the child’s welfare. West Virginia Code § 49-4-604(c)(3), sets forth that
a situation in which there is no reasonable likelihood that the conditions of abuse or neglect can
be substantially corrected include one in which “[t]he abusing parent . . . ha[s] not responded to
or followed through with a reasonable family case plan or other rehabilitative efforts[.]” We have
also held that “[t]ermination . . . may be employed without the use of intervening less[-
]restrictive alternatives when it is found that there is no reasonable likelihood . . . that conditions
of neglect or abuse can be substantially corrected.” Syl. Pt. 7, in part, In re Katie S., 198 W.Va.
at 79, 82 479 S.E.2d 589, 592 (1996).

        Petitioner’s argument that his custodial rights should not have been terminated because
the mother was still completing her improvement period is meritless. Petitioner was not entitled
to maintain his custodial rights simply because the mother was afforded more time in her case.
Further, petitioner offered no argument at disposition or in his brief on appeal as to why he
should be granted either an extension of his post-adjudicatory improvement period or a post-
dispositional improvement period. In this case, petitioner failed to comply with the requirements
of his post-adjudicatory improvement period, was arrested several times, and was incarcerated
during part of the proceedings below. He did not attempt to enter into a long-term substance
abuse treatment program, as was recommended by the evaluating psychologist in the
psychological evaluation report. Petitioner tested positive for controlled substances during the
proceedings and, at disposition, a DHHR worker testified that she had not seen petitioner in
months. As such, we find that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and neglect and that termination of his custodial rights was necessary for the
child’s welfare. As mentioned above, circuit courts are directed to terminate custodial rights
based upon these findings.

        Accordingly, we find no error in the decision of the circuit court, and its July 13, 2017,
order is hereby affirmed.


                                                                                            Affirmed.



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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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