                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: J.R. and S.R.                                                                FILED
                                                                                 April 10, 2017
No. 16-1100 (Calhoun County 16-JA-10 and 16-JA-12)                               RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

                              MEMORANDUM DECISION
        Petitioner Father S.R.-1, by counsel Ryan M. Ruth, appeals the Circuit Court of Calhoun
County’s October 20, 2016, order terminating his parental rights to ten-year-old J.R. and four­
year-old S.R.-2.1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel Lee Niezgoda, filed its response in support of the circuit court’s order. The guardian ad
litem (“guardian”), Tony Morgan, 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 denying his
motion for an 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 March of 2016, the DHHR filed an abuse and neglect petition against petitioner
alleging that he used illegal drugs which affected his ability to properly care for his children and
that he left unsecured guns throughout the house in the reach of the children. Additionally,
petitioner was the subject of a prior abuse and neglect proceeding for using illegal drugs.2
Thereafter, the circuit court held a series of adjudicatory hearings during which it heard
testimony from petitioner and his Child Protective Services (“CPS”) worker. Petitioner admitted

       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). The Court notes that the proceedings below concerned an
additional child. However, petitioner raises no assignment of error in regard to this child on
appeal. Accordingly, our holding in this Memorandum Decision does not concern the circuit
court’s rulings regarding that child. Because petitioner and one child have the same initials, we
have distinguished them by using numbers 1 and 2 after their initials in this Memorandum
Decision.
       2
       Petitioner regained custody of his children after successfully completing an
improvement period in the prior proceedings.
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that he used marijuana for “medical” purposes and that he was an interested party in a prior
abuse and neglect proceeding that involved the use of illegal drugs. According to the CPS
worker, petitioner’s drug use had gotten worse since the prior proceeding and now included the
use of methamphetamine. The worker also testified that petitioner was hallucinating and accused
the West Virginia State Police of selling illegal drugs - “ice” - from their vehicles. Based upon
the testimony, the circuit court found that petitioner used illegal drugs - which caused
hallucinations - while the children were in his care. Accordingly, the circuit court adjudicated
petitioner as an abusive and neglectful parent.

        In July of 2016, the circuit court held a dispositional hearing during which it heard
testimony that, while petitioner successfully completed an improvement period in his prior abuse
and neglect proceeding, he continued to use illegal drugs, including marijuana and
methamphetamine. A CPS worker also testified that petitioner tested positive for
methamphetamine, amphetamine, and marijuana. According to the worker, petitioner also failed
to complete a psychological evaluation. Based upon these findings, the circuit court found that
there was no reasonable likelihood that the conditions of abuse or neglect could be substantially
corrected and that termination was in the children’s best interests. As such, the circuit court
terminated petitioner’s parental rights by order entered on October 20, 2016.3 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).

        Petitioner argues that the circuit court erred in denying his motion for a post-adjudicatory
improvement period. In support of his argument, petitioner asserts that he established that he was
likely to fully participate in an improvement period as evidenced by the fact that he successfully
completed an improvement period in a prior abuse and neglect proceeding. Upon our review,

       3
        The parental rights of all parents to the children were terminated below. According to
the guardian, as of the filing of his response brief, the permanency plan for the children is
adoption by their foster family.
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however, the Court finds that petitioner failed to satisfy the applicable burden to obtain an
improvement period. Regarding whether an improvement period should be granted, we have
often noted that 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, 778 S.E.2d 338 (2015) (stating that “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)
(holding that “[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 [parent] 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, it is clear from the record that petitioner failed to demonstrate his ability to fully
participate in an improvement period. Petitioner has a history of illegal drug use as evidenced by
the prior abuse and neglect proceeding, which also involved illegal drug use. The circuit court
was presented with evidence that despite successfully completing an improvement period in the
prior proceeding, petitioner continued to use marijuana. Furthermore, the CPS worker testified
that, in addition, petitioner tested positive for amphetamine and methamphetamine. Finally, the
circuit court heard testimony that petitioner failed to participate in multiple drug screens and
failed to undergo a psychological evaluation. As such, it is clear that petitioner failed to establish
that he was likely to fully participate in a post-adjudicatory improvement period and thus, we
find no error in the circuit court denial of petitioner’s motion.

       For the foregoing reasons, we hereby affirm the circuit court’s October 20, 2016, order.


                                                                                           Affirmed.

ISSUED: April 10, 2017


CONCURRED IN BY:

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




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