                                                      STATE OF WEST VIRGINIA        FILED
                                                    SUPREME COURT OF APPEALS
                                                                                October 19, 2018
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
In re P.H., L.H., and A.H.                                                          OF WEST VIRGINIA 


No. 18-0483 (Randolph County 2017-JA-052, 2017-JA-053, and 2017-JA-054)


                                                          MEMORANDUM DECISION
        Petitioner Father D.H., by counsel G. Phillip Davis, appeals the Circuit Court of
Randolph County’s April 30, 2018, order terminating his parental rights to P.H., L.H., and A.H.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Heather M. Weese, 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 terminating his
parental rights when less-restrictive alternatives were available.

        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 July of 2017, the DHHR filed a child abuse and neglect petition against petitioner and
the mother, alleging that A.H. exhibited withdrawal symptoms after her birth and subsequently
tested positive for buprenorphine and cannabis. The DHHR alleged that petitioner slept during
his visits with the child at the hospital, was unemployed, and did not have proper housing as
there was no electric in the home and the floors were littered with clothes several layers deep.
Knives and loose pills were also observed throughout petitioner’s home in places easily
accessible to the children. The DHHR concluded that petitioner’s substance abuse rendered him
incapable of routinely and consistently attending to the children’s needs.

        The circuit court held an adjudicatory hearing in August of 2017, wherein petitioner
stipulated to the allegations contained in the petition and requested a post-adjudicatory
improvement period. The circuit court accepted petitioner’s stipulation, adjudicated him as an
abusing parent, and granted him a post-adjudicatory improvement period. As part of the terms
                                                            
              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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and conditions, petitioner was ordered to attend a Suboxone clinic, provide copies of his
prescriptions to the DHHR, submit to a prescription pill count, submit to drug screens,
participate in supervised visitation with the children, and comply with any other services as
decided by the multidisciplinary team.

       Thereafter, the circuit court held review hearings in September of 2017 and January of
2018. At both hearings, the circuit court was advised that petitioner was not participating in the
improvement period. In fact, as of the January of 2018 hearing, petitioner had only participated
in a “few” visits with the children. Despite petitioner’s noncompliance, the circuit court
continued the proceedings.

         The circuit court held a final review hearing in February of 2018. Although petitioner
testified “drugs have never really been [his] problem[,]” testimony established that he tested
positive for drugs on at least six separate occasions and often failed to participate in the call-in
system for random drug screens. Petitioner failed to attend his psychological evaluation or
maintain a clean and appropriate living environment. After hearing evidence, the circuit court
found that petitioner failed to consistently visit with the children, participate in parenting and
adult life skills classes, and comply with random drug screens. While petitioner did attend a
detoxification program, he returned to substance abuse shortly thereafter. The circuit court
concluded that, after six months of services, petitioner had not improved and terminated his
improvement period based upon his noncompliance with the same.

        In April of 2018, the circuit court held a dispositional hearing, wherein petitioner
requested a post-dispositional improvement period, which was denied. After hearing evidence,
the circuit court found that petitioner had not participated in his post-adjudicatory improvement
period, continued to abuse drugs, and failed to make any significant change since the filing of the
petition. Based on these findings, the circuit court concluded 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. It is from the April 30, 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
              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

                                                            
              2
         The mother’s parental rights were also terminated below. The children were placed in a
foster home with a permanency plan of adoption therein.
                                                               2

 
       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 terminating his parental rights
when less-restrictive alternatives were available. According to petitioner, testimony established
that he participated in a detoxification program, attempted to access services to address his drug
addiction, and expressed his willingness to seek additional treatment if he were granted a post-
dispositional improvement period. As such, petitioner argues that less-restrictive alternatives to
termination of his parental rights, such as a post-dispositional improvement period, were
available and warranted under the circumstances. We find no merit to petitioner’s argument.

        To begin, we find that the circuit court did not err in denying petitioner’s motion for a
post-dispositional improvement period. Pursuant to West Virginia Code § 49-4-610(3)(D), a
circuit court may grant a post-dispositional improvement period when

       [s]ince the initiation of the proceeding, the respondent has not previously been
       granted any improvement period or the respondent demonstrates that since the
       initial improvement period, the respondent has experienced a substantial change
       in circumstances. Further, the respondent shall demonstrate that due to that
       change in circumstances, the respondent is likely to fully participate in the
       improvement period[.]

Because petitioner was granted a post-adjudicatory improvement period during the proceedings
below, he was required to demonstrate a substantial change in circumstances in addition to his
likelihood of fully participating in an improvement period. However, in his brief on appeal,
petitioner does not reference any substantial change in his circumstances.

        Moreover, petitioner fails to demonstrate that he was likely to fully participate in an
improvement period based on his poor performance during the proceedings below. Petitioner
was granted the opportunity to participate in services designed to address the conditions of
abuse, but failed to do so. Petitioner entered a detoxification facility but subsequently returned to
abusing drugs shortly thereafter. He failed to participate in the call-in system for random drug
screens and, on at least six occasions when he did screen, tested positive for drugs. As a result,
petitioner had few supervised visits with the children and consistently denied that he had a
substance abuse problem, testifying at the final review hearing that “drugs have never really been
[his] problem.” We have previously 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.


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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’s failure to complete any aspect
of his post-dispositional improvement period, coupled with his failure to acknowledge the
conditions of abuse and neglect, rendered an improvement period futile. Therefore, we find no
error in the circuit court’s decision to deny petitioner a post-dispositional improvement period.

        We also find no error in the circuit court’s decision to terminate petitioner’s parental
rights, rather than implementing a less-restrictive alternative. 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. West Virginia Code
§ 49-4-604(c)(3) provides that 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[.]

        Here, petitioner entirely failed to comply with services aimed at reducing or preventing
the abuse and neglect. Petitioner continued to abuse drugs throughout the proceedings, tested
positive for drugs six times, and failed to fully comply with the call-in system for random drug
screens. Petitioner failed to attend his psychological evaluation, maintain a clean home,
consistently attend parenting and adult life skills classes, and consistently visit his children.
While petitioner argues that less-restrictive alternatives to termination of his parental rights were
available, we have previously held that

               “[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). Based upon a review of the
record, we find no error in the circuit court’s decision to terminate petitioner’s parental rights.
The circuit court made findings that there was no reasonable likelihood that petitioner could
correct the conditions of abuse and neglect in the near future and that termination was in the
children’s best interests.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 30, 2018, order is hereby affirmed.


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                                                                        Affirmed.

ISSUED: October 19, 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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