                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS
                                                                                FILED
                                                                           November 19, 2018
In re C.H.-1 and A.H.                                                        EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
No. 18-0573 (Braxton County 17-JA-42 and 17-JA-43)


                              MEMORANDUM DECISION
         Petitioner Father C.H.-2., by counsel Jared S. Frame, appeals the Circuit Court of
Braxton County’s May 25, 2018, order terminating his parental rights to C.H.-1 and A.H.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 and a supplemental appendix. The guardian
ad litem (“guardian”), Michael W. Asbury Jr., filed a response on behalf of the children in
support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in
finding that he failed to acknowledge the conditions of abuse and neglect, denying his motion for
a post-adjudicatory improvement period, and finding no reasonable likelihood that he could
substantially correct the conditions of abuse and neglect in the near future as a basis for the
termination of his custodial rights.

        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.

        On September 12, 2017, the DHHR filed an abuse and neglect petition alleging that
petitioner’s home was deplorable and that he and the mother used illegal substances in the home.
The DHHR alleged that “clutter and trash” covered the inside of the home. Additionally, there
was little food in the home, and what food was there was covered in mold. Further, the DHHR
alleged that the home was infested with cockroaches. According to the DHHR, the mother did
not live in the home, but she was aware of petitioner’s substance abuse and aware that other
people who abused substances came into the home when the children were present. Additionally,
petitioner was aware of the mother’s substance abuse issues and allowed the children to leave the

       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). Additionally, because one of the children and petitioner
share the same initials, they will be referred to as C.H.-1 and C.H.-2, respectively, throughout
this memorandum decision.


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home with her. The children disclosed to a DHHR worker that the older child was the younger
child’s primary caretaker. The children also disclosed that their parents fight after their mother
has been “smoking dope.” The children’s school provided the DHHR with a photograph of
cockroaches crawling out of the younger child’s backpack. The DHHR further alleged that in
2015 petitioner was placed on supervised probation by the circuit court following his conviction
on a charge of delivery of hydrocodone. In May of 2017, petitioner violated his probation by
screening positive for methamphetamine. He also violated his probation when drug paraphernalia
was found in his home. The circuit court granted petitioner phone calls with the children for ten
minutes, twice per week.

        On October 20, 2017, the circuit court held an adjudicatory hearing. The DHHR
presented the testimony of two Child Protective Services (“CPS”) workers and an employee
from the children’s school. Petitioner testified on his own behalf. The circuit court found that
petitioner failed to protect the children by allowing them to leave his home with the mother
because he knew that she was addicted to substances. Further, the circuit court found petitioner’s
home to be unsafe for the children due to the cockroach infestation, mold problem, and lumber
and debris scattered throughout the yard. Also, the home did not have adequate food for the
children. Accordingly, petitioner was adjudicated as an abusing parent. The circuit court ordered
the DHHR to assist petitioner with obtaining extermination services to address the cockroach
infestation and further ordered the DHHR to later inspect the home to determine if it was fit and
suitable for the children. The circuit court ordered that the telephone contact between petitioner
and the children continue.

        In January of 2018, the DHHR recommended the termination of petitioner’s parental
rights because he failed to participate in services. On March 2, 2018, the circuit court held a
dispositional hearing during which petitioner requested an improvement period, but the circuit
court denied that request. The DHHR presented evidence that petitioner tested positive for
amphetamines and methamphetamine on a drug screen in November of 2017, that he was on
home incarceration, and that he had pending federal drug-related charges against him. However,
subsequent to November of 2017, petitioner’s drug screens remained clean. The DHHR also
presented evidence that petitioner had been complying with services for a few weeks prior to the
dispositional hearing, but that his home remained unsuitable for the children. Following the
presentation of evidence, the circuit court found that petitioner “failed to accept responsibility for
his actions, failed to take appropriate actions to protect his children and will not correct the
conditions out of which this abuse and neglect petition has arisen.” The circuit court further
found no reasonable likelihood that petitioner could substantially correct the conditions of abuse
and neglect in the near future and that termination of his custodial rights was in the children’s
best interests. The circuit court based its decision to terminate only petitioner’s custodial rights
due to the strong bond between petitioner and the children. The circuit court ordered that if
petitioner continued to produce clean drug screens, he may have supervised visitation with the
children, at the paternal grandmother’s discretion. Ultimately, the circuit court terminated




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petitioner’s custodial rights in its May 25, 2018, dispositional order. It is from this order 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).

        First, petitioner argues that the circuit court erred in finding that he failed to acknowledge
the conditions of abuse and neglect and denying his motion for a post-adjudicatory improvement
period. In support, petitioner asserts that he accepted responsibility for his actions, that he has a
strong bond with his children, and that he complied with services during the proceedings. We do
not find these arguments persuasive.

        Pursuant to West Virginia Code § 49-4-610(2), the circuit court may grant a parent a
post-adjudicatory improvement period if the parent “moves in writing for the improvement
period” and “demonstrates, by clear and convincing evidence, that the [the parent] is likely to
fully participate in the improvement period[.]” Additionally, we have stated that “West Virginia
law allows the circuit court discretion in deciding whether to grant a parent an improvement
period.” In re M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015). We have also 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.



        2
        The children’s mother’s parental and custodial rights were terminated below. According
to respondents, the permanency plan for the children is legal guardianship with the paternal
grandmother.
                                                  3
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)).

        Although petitioner asserts that he accepted responsibility for the conditions of abuse and
neglect, he points to no evidence in the record to support his assertion. While petitioner does not
deny that he tested positive for substances in November of 2017, he attempts to minimize his
violation of the circuit court’s orders to remain free from substances. Petitioner also fails to
acknowledge numerous other conditions of abuse and neglect including the fact that his home
was unsuitable for the children; that he let the children leave with their mother, despite his
knowledge of her substance abuse issues; and that his home had little food and was infested with
cockroaches. While petitioner also argues that he complied with services, he fails to
acknowledge that he did not begin complying with services until just prior to the dispositional
hearing. Further, petitioner argues that he had a strong emotional bond with the children.
However, a strong emotional bond is not a consideration when determining whether to grant an
improvement period. Moreover, the circuit court did, in fact, consider petitioner’s strong bond
with the children at disposition and ultimately terminated only his custodial rights. Because
petitioner failed to meet the burden to receive an improvement period, and the same would have
been futile, we find no error in the circuit court’s decision to deny petitioner a post-adjudicatory
improvement period.

        Further, we find no error in the circuit court’s termination of petitioner’s custodial rights. 
Petitioner alleges that the circuit court based its decision to terminate his custodial rights on its
finding that he failed to acknowledge the conditions of abuse and neglect.  He further argues that
the circuit court erroneously found no reasonable likelihood that he could substantially correct
the conditions of neglect in the near future. In support, petitioner reiterates his argument that he
complied with services and also argues that he made some improvements to his home. We do not
find this argument persuasive.

        Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate
custodial rights upon finding that there is no reasonable likelihood the conditions of neglect can
be substantially corrected in the near future and when 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 the abusing parent “ha[s] 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[.]” Here, petitioner
admittedly tested positive for illegal substances during the proceedings in November of 2017. As
discussed above, he failed to acknowledge numerous conditions of abuse and neglect and did not
begin participating in services until just prior to the dispositional hearing. Because petitioner
refused to acknowledge issues of neglect in the instant proceedings, it is clear that there was no
reasonable likelihood that he could correct those issues. Further, because the record shows that at
the time of the dispositional hearing petitioner’s home was still not in a fit and suitable condition
for the children, the termination of petitioner’s custodial rights was in the children’s best
interests. The circuit court did consider petitioner’s bond with his children. However, the
termination of petitioner’s custodial rights was necessary for the children’s welfare in order to



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achieve permanency. Therefore, we find no error in the circuit court’s termination of petitioner’s
custodial rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 25, 2018, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: November 19, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment

 




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