                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                    FILED
In Re: T.H., A.H., and J.H.                                                       February 18, 2014
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
No. 13-0951 (Raleigh County 11-JA-138 through 11-JA-140)                         OF WEST VIRGINIA




                               MEMORANDUM DECISION
        Petitioner Father filed this appeal by his counsel, Timothy P. Lupardus. His appeal arises
from the Circuit Court of Raleigh County, which terminated his parental rights to his children by
order entered on August 15, 2013. The guardian ad litem for the children, Neil V. Boden, filed a
response in support of the circuit court’s order. The Department of Health and Human Resources
(“DHHR”), by its attorney Angela Alexander Walters, also filed a response in support of the
circuit court’s order. Petitioner argues that the circuit court erred by admitting drug screen results
into evidence; proceeding to termination when petitioner’s improvement period had been
extended; terminating his parental rights when he is not a physical or emotional threat to the
children, can obtain employment, obtain a suitable residence, and refrain from drug use around
the children; and terminating his parental rights where a reasonable, less drastic alternative was
available for the children’s placement.

        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 June of 2011, the DHHR filed a petition initiating the instant case. The petition alleged
that the youngest child, T.H., tested positive for cocaine at birth and that petitioner disclosed to
Child Protective Services (“CPS”) that he used marijuana about three weeks earlier. At the
adjudicatory hearing in September of 2011, petitioner stipulated to neglecting his children due to
illegal drug use. The circuit court adjudicated the children as abused and neglected. The DHHR
granted petitioner’s motion for an improvement period and granted the DHHR’s motion for
petitioner to undergo frequent and random drug screens.

        As the case proceeded, a review hearing in December of 2011 revealed that neither parent
had been participating in their drug screens or going to outpatient drug treatment. The circuit
court ordered the DHHR to schedule inpatient drug treatment for both parents.1 The circuit court
extended petitioner’s improvement period in the summer of 2012 and again in December of
2012, which pushed its expiration to March of 2013. In the spring of 2013, the DHHR filed a

1
  During the course of the proceedings below, the children’s mother voluntarily relinquished her
parental rights.

                                                  1
motion to terminate petitioner’s parental rights, asserting that petitioner tested positive for drugs
in March, refused services, and failed to make improvements.

        In August of 2013 at a dispositional hearing, evidence presented demonstrated that
petitioner last participated in services in April and had not had a negative drug screen since
February, which was also when he had his most recent visit with his children. A worker from the
Day Report Center also testified that petitioner missed over forty drug screens. In its
dispositional order, the circuit court found that petitioner failed to complete the terms of his
improvement period and show that he would be able to complete rehabilitation within a
reasonable time. Accordingly, the circuit court denied petitioner’s motion for a dispositional
improvement period and terminated his parental rights. From this order, petitioner now appeals.

       This 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).

        In his first assignment of error, petitioner argues that the circuit court erred by admitting
drug screen results into evidence over his objection concerning their authenticity and foundation.
Our review of the record indicates no error by the circuit court in admitting this evidence. Rule
803(6) of the West Virginia Rules of Evidence provides an exception to hearsay for those
documents that are records of regularly conducted business activity, which include memoranda,
reports, or data compilations. The dispositional hearing transcript provides that the evidence
petitioner contests was part of the DHHR’s July of 2013 court summary, which was signed and
dated by the assigned DHHR worker. In light of these circumstances, the DHHR court summary
satisfies Rule 803(6) of the West Virginia Rules of Evidence and was not improperly admitted.

        Second, petitioner argues that the circuit court erred by proceeding to terminate his
parental rights when his improvement period had been extended and no motion to terminate his
improvement period had been filed. Our review of the record indicates no error by the circuit
court in this regard. The record provides that on March 1, 2013, the circuit court held a review
hearing on petitioner’s improvement period, during which the circuit court was advised that
petitioner’s improvement period was scheduled to expire the next day, March 2. The circuit court


                                                 2
was also advised that although petitioner completed inpatient drug rehabilitation, he was having
problems with the DHHR. The record reveals that such issues included petitioner’s lack of
contact with his CPS worker and his continuous use of drugs despite completing inpatient drug
treatment. At the March 1, 2013, hearing, the DHHR moved to “continue on status quo,” which
the circuit court granted. The next hearing was scheduled for May 31. At no time did the circuit
court further extend petitioner’s improvement period beyond March 2. Accordingly, we find no
error with the circuit court’s procession to hearing evidence and arguments with regard to
termination after finding that petitioner’s improvement period had expired.

         Third, petitioner argues that the circuit court erred by terminating his parental rights
because he is not a physical or emotional threat to his children. Petitioner further asserts that he
testified that he could obtain employment and suitable housing, and could refrain from drug use
around the children. We find no error by the circuit court in this regard. Under West Virginia
Code § 49-6-5(b)(3), circumstances that warrant finding no reasonable likelihood that conditions
of abuse or neglect can be substantially corrected include circumstances in which the subject
parent has not responded to, or followed through with, rehabilitative efforts designed to reduce or
prevent abuse and neglect. Such circumstances warrant terminating parental rights under West
Virginia Code § 49-6-5(a)(6). The record reflects that petitioner failed to participate in over forty
required drug screens, failed to engage in services for several months before the dispositional
hearing, and had not visited with his children for several months before the dispositional hearing.
Moreover, the record reflects that, despite participating in inpatient rehabilitation, petitioner
tested positive for THC, cocaine, and oxycodone just days after his improvement period expired.

        Lastly, petitioner argues that the circuit court erred by terminating his parental rights
where a reasonable, less drastic alternative was available for placement. Petitioner asserts that his
grandmother passed a home study and was available for the children’s placement through a
guardianship. We find no error in the circuit court’s decision to terminate petitioner’s parental
rights. “‘Although parents have substantial rights that must be protected, the primary goal in
cases involving abuse and neglect, as in all family law matters, must be the health and welfare of
the children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 2, In re
Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013). We also bear in mind the following:

               Termination of parental rights, the most drastic remedy under the statutory
       provision covering the disposition of neglected children, W.Va.Code, 49-6-5
       (1977) 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) (1977) that conditions of neglect or abuse can be
       substantially corrected.

Syl. Pt. 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980). From our review of the record, it
is clear that the evidence was sufficient to support the circuit court’s findings and conclusions
that there was no reasonable likelihood to believe that conditions of abuse and neglect could be
substantially corrected in the near future, and that termination was necessary for the children’s
welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate
parental rights upon such findings.



                                                 3
       For the foregoing reasons, we affirm.

                                                   Affirmed.

ISSUED: February 18, 2014

CONCURRED IN BY:

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




                                               4
