                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS

In re J.M.
                                                                                    FILED
                                                                                January 14, 2019
No. 18-0604 (Taylor County 17-JA-79)                                            EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA 


                                                          MEMORANDUM DECISION
        Petitioner Father T.M., by counsel James E. Shay, Jr., appeals the Circuit Court of Taylor
County’s June 4, 2018, order terminating his parental rights to J.M.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”), Mary S.
Nelson, filed a response on behalf of the child also in support of the circuit court’s order and a
supplemental appendix. On appeal, petitioner argues that the circuit court erred in terminating his
parental rights without first granting him an improvement period, allowing the DHHR and the
guardian to present evidence after resting their cases, and denying him due process and equal
protection.

        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 September of 2017, the DHHR filed a child abuse and neglect petition against
petitioner and the mother. The DHHR alleged that petitioner had issues with alcohol abuse which
endangered the child. Specifically, petitioner rode his motorcycle, while intoxicated, with the
child as a passenger. Neither petitioner nor the child were wearing helmets and petitioner crashed
the motorcycle, breaking four ribs and his clavicle, along with other less-serious injuries. A
Child Protective Services (“CPS”) worker spoke with the child, who showed the worker minor
injuries sustained to his leg and knee. The child reported that petitioner was intoxicated at the
time of the wreck and was driving too fast. Petitioner refused to go to the hospital following the
wreck until the mother picked up petitioner and the child and took them. The child further
reported that petitioner drinks frequently and that petitioner and his mother engage in domestic
violence frequently. Based on these facts, the DHHR alleged that petitioner abused and/or
                                                            
              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
 
neglected his child through subjecting the child to dangerous and hazardous situations, exposing
the child to domestic violence, abusing alcohol in the child’s presence, and failing to protect the
child and ensure his safety and well-being.

        The circuit court held a preliminary hearing later in September of 2017. Petitioner waived
the hearing, although the circuit court went on to question him regarding the motorcycle incident.
Petitioner testified that he regularly consumes alcohol and consumes a “couple” of beers before
breakfast after he returns home from working a night shift. He further admitted that he consumes
between twelve and thirty beers per week. Petitioner denied having a problem with alcohol or
drinking in excess. However, petitioner conceded that both doctors and family members have
informed him that he drinks too much alcohol. Petitioner stated that he consumed alcohol prior to
the motorcycle accident and confirmed that neither he nor the child were wearing helmets. The
circuit court ordered petitioner to submit to alcohol screening and scheduled the adjudicatory
hearing.

        In November of 2017, the circuit court held an adjudicatory hearing. Petitioner and the
mother stipulated to the allegations contained in the petition. During the circuit court’s
questioning, the mother stated that she believed petitioner had an alcohol abuse problem and that
he drinks four to five beers after arriving home from work. The mother reported seeing petitioner
drink six to ten beers on his days off. Petitioner admitted that he made a mistake in drinking a
few beers prior to allowing his son to ride on a motorcycle with him, without wearing a helmet.
However, petitioner denied drinking excessively and believed the proceedings would not have
occurred had he been in a state that did not require the use of helmets while riding motorcycles.
Counsel for petitioner requested a post-adjudicatory improvement period, to which the circuit
court expressed concern due to petitioner’s reluctance to comply with services and his combative
nature. At that point, petitioner stated “the reason I am so combative is because [the CPS worker
who filed the petition] is a liar. She put information in that paper that was not stated by my son,
that is why I am so combative in your courtroom.” The circuit court warned petitioner regarding
his behavior before proceeding. Ultimately, the circuit court adjudicated petitioner as an abusing
parent, and took his motion for an improvement period under advisement.

         The circuit court held a dispositional hearing in March of 2018. A CPS worker testified
that, although petitioner had not been granted an improvement period, he was offered services
and had complied with parenting classes and visitation. However, although petitioner expressed
the desire to comply with services, he refused to wear a continuous alcohol monitoring device,
submit to drug and/or alcohol screens after November of 2017, provide medical records, attend
Alcoholics Anonymous (“AA”) meetings, or participate in a psychological evaluation. The
worker further testified that petitioner stated that he did not understand why the proceedings
were occurring and refused to cooperate with the DHHR, only attending one multidisciplinary
team (“MDT”) meeting during the proceedings. The worker testified that the mother reported
observing petitioner under the influence of alcohol twice since the adjudicatory hearing.

       A service provider testified that petitioner complied with parenting classes and visitation
and demonstrated a bond with the child. The provider conceded that petitioner had issues
cooperating with the DHHR. A DHHR worker testified about an incident in February of 2018
wherein petitioner became loud and aggressive when he was asked to show identification to enter

                                                2
 
the DHHR office building. Thereafter, the DHHR and the guardian stated that they had no
further witnesses. However, after further conversation, the DHHR called two more witnesses, the
mother and petitioner, to correct a hearsay issue.

        The mother testified that she observed petitioner to be under the influence on two
occasions during the course of the proceedings. Finally, petitioner testified that the allegations of
alcohol abuse were unfounded. When the DHHR informed petitioner that the circuit court made
prior findings regarding his alcohol abuse at the adjudicatory hearing, he responded “[s]o it’s
allegation [sic] that was turned into fact overnight, magically. If that’s how you want to say that
then okay.” Petitioner stated that he would comply with any terms and conditions of an
improvement period “[a]s long as the specifics are laid out to me” but denied having an alcohol
abuse problem. After hearing evidence, the circuit court found that there was no reasonable
likelihood that petitioner could correct the conditions of abuse in the near future due to his
inadequate capacity to address the conditions of abuse and neglect on his own or with help. The
court further found that termination of petitioner’s parental rights was necessary for the child’s
welfare. It is from the June 4, 2018, dispositional order terminating his parental rights that
petitioner appeals.2

              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).

        On appeal, petitioner argues that the circuit court “erred at disposition by improperly
allowing the [DHHR] and guardian ad litem to present more evidence after they had voluntarily
rested their cases. . . .” However, petitioner fails to cite to any authority demonstrating that the
DHHR is prohibited from presenting additional evidence after it has voluntarily rested its case.
Here, after presenting the testimony of several witnesses, the DHHR and guardian advised the
circuit court that they had no more witnesses. Following a brief discussion regarding hearsay, the

                                                            
              2
       The mother successfully completed her improvement period and the petition against her
was dismissed. The permanency plan for the child is to remain in her care.
                                                               3
 
circuit court permitted the DHHR to call more witnesses. Ultimately, the DHHR called the
mother and petitioner to testify, without objection. Contrary to petitioner’s assertions, the circuit
court did not shift the burden to petitioner.3 Rather, the circuit court merely allowed the DHHR
to present additional evidence to correct a hearsay issue. We have previously held that

                        “[t]he West Virginia Rules of Evidence and the West Virginia Rules of
              Civil Procedure allocate significant discretion to the trial court in making
              evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence
              . . . are committed to the discretion of the trial court. Absent a few exceptions, this
              Court will review evidentiary and procedural rulings of the circuit court under an
              abuse of discretion standard.” Syl. Pt. 1, in part, McDougal v. McCammon, 193
              W.Va. 229, 455 S.E.2d 788 (1995).

Syl. Pt. 3, In re J.S., 233 W.Va. 394, 758 S.E.2d 747 (2014). Accordingly, we find that the
circuit court did not abuse its discretion and its actions were not prejudicial to petitioner as it
required the DHHR to meet its burden with regard to that specific testimony, which it did by
calling the mother to testify.

        To the extent that petitioner argues that, absent the additional testimony, the DHHR
failed to meet its burden of proving that there was no reasonable likelihood that he could correct
the conditions of abuse in the near future, we note that the evidence presented prior to the
DHHR’s decision to rest its case established that petitioner continued to deny having an alcohol
abuse problem, failed to participate in several services aimed at treating the same, refused to
provide medical documentation, mischaracterized the situation, and minimized his behavior. As
such, we find no merit to petitioner’s argument in this regard and more fully discuss the
termination of his parental rights below. We likewise find no merit in petitioner’s argument that
the circuit court demonstrated bias towards him in making findings that he was combative and
tried to control the proceedings by wearing his military uniform. Petitioner admitted to having a
combative attitude at the adjudicatory hearing and the CPS worker testified that petitioner placed
conditions on his compliance with services, demonstrating that he was attempting to control the
proceedings.

        In sum, we find that the circuit court did not abuse its discretion in allowing the DHHR
and the guardian to provide additional testimony in order to correct the hearsay issue and further
find that the additional testimony was not prejudicial to petitioner’s case. Accordingly, we find
that petitioner is entitled to no relief in this regard.

         Petitioner next argues that the circuit court erred in terminating his parental rights without
first granting him an improvement period because it denied him any meaningful opportunity to
establish that he had the ability to correct the conditions of abuse and neglect. According to
petitioner, he stipulated to the conditions of abuse and testimony at the dispositional hearing
established that he complied with some services. As such, petitioner avers that the circuit court

                                                            
              3
        See Syl. Pt. 2, in part, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981) (“the
burden of proof in a child neglect or abuse case does not shift from the [DHHR] to the parent,
guardian, or custodian of the child. It remains upon the [DHHR] throughout the proceedings.”).
                                                               4
 
should have granted him an improvement period so that he could demonstrate that he could
correct the conditions of abuse and that termination of his parental rights was not necessary.
Petitioner further argues that the circuit court erred in failing to employ a less-restrictive
alternative to termination of his parental rights. We disagree.

        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) (“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) (“[i]t is within
the court’s discretion to grant an improvement period within the applicable statutory
requirements.”). We have also held that a parent’s “entitlement to an improvement period is
conditioned upon the ability of the respondent to demonstrate ‘by clear and convincing evidence,
that the respondent is likely to fully participate in the improvement period. . . .’” In re Charity
H., 215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004).

        Here, petitioner failed to demonstrate that he was likely to fully participate in an
improvement period. While petitioner was not granted an improvement period during the
proceedings below, he was provided with several services such as alcohol screens, use of a
continuous alcohol monitoring device, parenting classes, AA meetings, supervised visitation, and
a psychological evaluation. However, petitioner stopped submitting to alcohol screens after four
positive screens, refused to attend AA meetings, and failed to comply with a psychological
evaluation. Moreover, the evidence established that petitioner failed to acknowledge the
conditions of abuse and neglect, and demonstrated no insight to how his child was affected by
his actions. Despite stipulating to the allegations contained in the petition, petitioner testified at
the adjudicatory hearing and the dispositional hearing that he did not have an alcohol abuse
problem. Rather, petitioner minimized his actions, accused the DHHR worker who filed the
petition of lying, and stated that the proceedings would not be occurring had the motorcycle
accident occurred in a state that did not require the use of helmets.

       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.

In re Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting Charity H., 215 W.Va.
at 217, 599 S.E.2d at 640). The record demonstrates that petitioner failed to acknowledge the
conditions of abuse and/or neglect and failed to comply with the many services he was offered.
Accordingly, we find no error in the circuit court’s decision to deny petitioner an improvement
period because he failed to demonstrate that he would likely comply with the same.

        We also find no error in the circuit court’s decision to terminate petitioner’s parental
rights. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental

                                                  5
 
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. According to West Virginia Code § 49-4-604(c)(1), 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 habitually abused or are addicted to alcohol .
              . . to the extent that proper parenting skills have been seriously impaired and the
              person or persons have not responded to or followed through the recommended
              and appropriate treatment which could have improved the capacity for adequate
              parental functioning[.]

Here, the evidence overwhelmingly demonstrates that there was no reasonable likelihood
petitioner could correct the conditions of abuse and neglect in the near future. Petitioner
continually denied having an alcohol abuse problem. When reminded that the circuit court had
made a finding of fact with regard to his alcohol abuse problem, petitioner minimized the
severity of the problem and stated “it’s allegation [sic] that was turned into fact overnight,
magically.” Petitioner refused to submit to drug screens, attend AA meetings, and submit to a
psychological evaluation. Further, petitioner accused the CPS worker of lying and repeatedly
mischaracterized the issue as dealing with the law regarding helmet usage, claiming that the
proceedings would not have happened in another state. As such, petitioner failed to respond to or
follow through with any services or treatment. While petitioner argues that he should have first
been granted an improvement period, 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 on the foregoing, we
find that the circuit court did not err in terminating petitioner’s parental rights.

        Lastly, petitioner argues that the circuit court denied him due process and equal
protection by giving disparate treatment to him and the mother. Specifically, petitioner argues
that he and the mother stipulated to the conditions of abuse, but that following their adjudication
the proceedings centered on petitioner and no evidence was presented that the mother corrected
the conditions of abuse to which she stipulated. As such, petitioner avers that that the circuit
court erred in dismissing the petition against the mother while terminating his parental rights.4
We find no error.

                                                            
              4
          As part of his argument, petitioner asserts that the circuit court’s failure to employ a less-
restrictive alternative than termination of his parental rights demonstrates that his due process
and equal protection rights were violated. However, as discussed above, we find no error in the
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              We have previously noted that

              simply because one parent has been found to be a fit and proper caretaker for
              his/her 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.

In re Emily, 208 W.Va. 325, 344, 540 S.E.2d 542, 561 (2000). Here, evidence was presented that
the mother corrected the conditions of abuse and/or neglect. The CPS worker testified that the
mother fully complied with all services and documentation from a service provider established
the same. In contrast, petitioner placed conditions on his compliance with some services, refused
to comply with many services, was argumentative with the DHHR, and denied the allegations of
abuse and/or neglect. As such, petitioner was unable to correct the conditions of abuse and
neglect, warranting a different disposition than the mother. Accordingly, we find that petitioner
is entitled to no relief in this regard.

       For these reasons, we find no error in the decision of the circuit court, and its June 4,
2018, order is hereby affirmed.


                                                                                                                                                                           Affirmed.

ISSUED: January 14, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
 




                                                                                                                                                                                                
circuit court’s termination of petitioner’s parental rights as the record demonstrates that there
was no reasonable likelihood that petitioner could correct the conditions of abuse and/or neglect
in the near future.
                                                                                              7
 
