                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                  FILED
In re: T.H.                                                                     May 23, 2016
                                                                                RORY L. PERRY II, CLERK
No. 15-0964 (Raleigh County 14-JA-45-H)                                       SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Father M.H., by counsel Adam D. Taylor, appeals the Circuit Court of Raleigh
County’s September 4, 2015, order terminating his parental rights to T.H.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed its
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Stanley I.
Selden, 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 denying his motion for a post-adjudicatory
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 2014, the DHHR filed an abuse and neglect petition against petitioner and
the child’s mother. In that petition, the DHHR alleged that petitioner had a prior involuntary
termination of his rights to two older children. The issues present in the prior abuse and neglect
proceeding were that petitioner abused heroin, crack cocaine, and prescription medication; the
children were made to sleep on the floor of the living room because the bedrooms were rented to
two adults; drug paraphernalia was visible and within reach of the children; and the home was
unclean and lacked food, notwithstanding the receipt of food stamps for the family. Petitioner

       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).
       2
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.


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was granted an improvement period in the prior abuse and neglect proceeding, which he failed to
successfully complete. At the time of the instant petition’s filing in March of 2014, petitioner
was incarcerated on burglary charges, for which he was ultimately convicted. Petitioner’s prior
criminal history (2007 and 2013) is substantial and included eleven arrests and more than twenty
criminal charges.

        In July of 2014, the circuit court held an adjudicatory hearing while petitioner remained
incarcerated. Following the presentation of the parties’ evidence, the circuit court held the matter
in abeyance in order to obtain copies of documents pertaining to petitioner’s criminal
proceedings. The circuit court stated that if it found that petitioner committed child abuse or
neglect, then a dispositional hearing would be scheduled for November of 2014. The circuit court
later ruled that petitioner had committed child abuse or neglect. It appears that petitioner filed a
motion for an improvement period in July of 2014.3

        In September of 2014, petitioner’s prison sentence for his burglary convictions was
suspended, and he was granted probation. A condition of that probation was that he seek
inpatient substance abuse treatment. It appears that he was released from prison in August or
September of 2014.

        In November of 2014, the circuit court held a dispositional hearing. However, the circuit
court continued that hearing until February of 2015. At the subsequent hearing held in February
of 2015, the circuit court heard evidence and argument on whether petitioner should receive an
improvement period. The parties also informed the circuit court that petitioner’s paternity of the
child had been called into question. To resolve the matter, the circuit court ordered a paternity
test and continued the matter pending the outcome of that testing. The circuit court also ordered
petitioner to submit to a psychological parental fitness evaluation. It was later determined that
petitioner is the child’s father.

        In May of 2015, a multi-disciplinary team developed a case plan in anticipation of
petitioner potentially being granted an improvement period. As part of that case plan, petitioner
would be required to seek inpatient substance abuse treatment. Due to this condition, petitioner
refused to sign that case plan.

        In July of 2015, the psychologist completed petitioner’s psychological evaluation report.
In that report, the psychologist indicated that petitioner showed the personality traits of an addict;
was at risk to deny his substance abuse addiction; failed to admit to prior cocaine use despite
documentary evidence of such prior use; and that his “prognosis for the reliable attainment of
minimally adequate parenting currently appears to be guarded.”

       3
         Petitioner failed to include his written motion for an improvement period in the record
on appeal. Further, the nature of that motion is not readily apparent from the circuit court’s
docketing sheet, which appears to have conflated that motion with a separate motion for
visitation filed in July of 2014. While petitioner now argues that he moved for a post­
adjudicatory improvement period below, the circuit court indicated that petitioner filed a motion
for a dispositional improvement period, which it treated as a motion for a post-adjudicatory
improvement period based on the procedural posture of the case.
                                                  2


        Days before the final hearing scheduled for late July of 2015, petitioner was involved in
a vehicular accident. According to the investigating officer’s statement, petitioner appeared to be
intoxicated when he was located shortly after the accident. Petitioner was later criminally
charged with the following three misdemeanors stemming from that incident: leaving the scene
of an accident; failure to maintain control of his vehicle; and failure to maintain proper
automobile insurance.

        The circuit court held the final hearing in this matter in July of 2015. At the conclusion of
that hearing, the circuit court found that petitioner failed to satisfy his burden to warrant a post­
adjudicatory improvement period. Therefore, the circuit court denied that motion. Further, the
circuit court found that there was no reasonable likelihood that petitioner could substantially
correct the conditions of abuse or neglect in the near future and the child’s welfare required
termination of petitioner’s parental rights. For those reasons, the circuit court entered a detailed,
twenty-one page final order on September 4, 2015, that terminated petitioner’s parental rights to
the child. This appeal followed.

       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). Further, our case law is clear that
“in the context of abuse and neglect proceedings, the circuit court is the entity charged with
weighing the credibility of witnesses and rendering findings of fact.” In re Emily, 208 W.Va.
325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478,
525 S.E.2d 669 (1999)); see also Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d
531, 538 (1997) (stating that “[a] reviewing court cannot assess witness credibility through a
record. The trier of fact is uniquely situated to make such determinations and this Court is not in
a position to, and will not, second guess such determinations.”).

       On appeal, petitioner’s sole assignment of error is that the circuit court erred in denying
his motion for a post-adjudicatory improvement period. We have previously held that “[i]t is
within the court’s discretion to grant an improvement period within the applicable statutory
requirements[.]” Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

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Pursuant to West Virginia Code § 49-4-610(2)(B), a circuit court may only grant a post­
adjudicatory improvement period when the parent “demonstrates, by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period. . . .”

        We find that the circuit court did not abuse its discretion in denying petitioner’s motion
for an improvement period. While petitioner argues that he “exhibited nearly complete
compliance” with the requests of DHHR workers (and the probation department in relation to his
recent criminal proceedings), we disagree. To the contrary, petitioner failed to seek inpatient
substance abuse treatment as required by both his criminal probation and his case plan in this
proceeding and continued to abuse alcohol, as evidenced by the investigating officer’s report
regarding the car accident in July of 2015. Moreover, petitioner failed to successfully complete
his improvement period in the prior abuse and neglect case; was incarcerated at the outset of
these proceedings, which prevented him from parenting the child at that time; and was arrested
on new charges during the pendency of the proceedings below. For those reasons, we find no
merit to petitioner’s contention that the circuit court abused its discretion in finding that he was
unlikely to comply with the terms of an improvement period.4

        For the foregoing reasons, we find no error in the circuit court’s September 4, 2015,
order, and we hereby affirm the same.


                                                                                          Affirmed.

ISSUED: May 23, 2016


CONCURRED IN BY:

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




       4
         To the extent petitioner argues that the circuit court erroneously relied upon his July
arrest, he cites no legal support for his argument. He further fails to indicate where he objected in
the record below to that evidence. Regardless, the circuit court clearly noted that its
consideration of those charges was limited to the understanding that petitioner “is presumed
innocent of the alleged acts until proven guilty[.]”
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