                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

In re: D.B., S.B., D.G. & W.G.                                                              FILED
                                                                                       November 23, 2015
No. 15-0207 (Morgan County 14-JA-33, 14-JA-34, 12-JA-20, & 12-JA-21)                   RORY L. PERRY II, CLERK
                                                                                     SUPREME COURT OF APPEALS
                                                                                         OF WEST VIRGINIA


                              MEMORANDUM DECISION


        Petitioner Father J.W., by counsel Michael Donadieu, appeals the Circuit Court of
Morgan County’s January 29, 2015, order terminating his parental rights to D.G. and W.G. The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Angela
Walters, filed its response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Nicholas Forrest Colvin, filed a response on behalf of the children supporting the
circuit court’s order. On appeal, petitioner alleges that the circuit court erred in determining that
the DHHR was not obligated to make reasonable efforts to achieve permanency, in denying
petitioner’s motion for an improvement period, in denying post-termination visitation, and in
terminating his parental rights.1

        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.

        Petitioner has two adopted children, D.G. and W.G. In November of 2013, petitioner
began a relationship with H.W. and the two were married on January 6, 2014. After their
marriage, petitioner resided with H.W. and his two children, D.G. and W.G. H.W. also had two
children, D.B. and S.B.2, who did not reside in the home. In May of 2014, petitioner and H.W.
got into an argument over her abuse of Klonopin and her attempt to overdose on Klonopin after a
disagreement she had with her ex-husband. Petitioner and H.W. continued to argue until the
disagreement escalated to domestic violence, and H.W. punched and scratched petitioner and cut
him with a knife. D.G. and W.G. were witnesses to the domestic violence incident. After being

       1
         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.
       2
         Although they were included in the petition below, petitioner makes no assignment of
error regarding D.B. or S.B. on appeal. As such, those children are not the subject of this appeal.
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cut, petitioner left his home ran to the local fire station for help, while H.W. continued to behave
in an erratic manner in front of her step-children. Both petitioner and H.W. were arrested. H.W.
became combative with the police officers arresting her. She was tased after throwing herself on
the floor and kicking at the officers. The DHHR took emergency custody of D.G. and W.G. and
filed an abuse and neglect petition alleging that the children were abused and neglected by their
exposure to domestic violence. The petition contained additional allegations concerning H.W.’s
arrest, her instability, and her threats of suicide by overdose.3 In May of 2014, the circuit court
held a preliminary hearing. The circuit court adopted an emergency protective order previously
issued by the Morgan County Magistrate Court in place to protect D.G. and W.G. from H.W. 4

        In November of 2014, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the allegations of abuse and neglect and admitted that he failed to appreciate the
danger that H.W.’s unstable mental health history and substance addiction presented to his
children’s safety and that he had exposed them to risks of emotional and physical injury by
allowing contact between them and H.W. Petitioner and H.W. were adjudicated as abusive
parents. Petitioner filed a motion for a post-adjudicatory improvement period. The circuit court
denied petitioner’s motion and found that petitioner would not separate himself from H.W. or
adhere to court orders. The circuit court explained that petitioner immediately violated its no-
contact order and that he asserted ignorance as to the extent of the order. Petitioner was notified
again by the circuit court of the no-contact provision. The circuit court found that petitioner
violated the same by permitting contact between the children and H.W. while she was
incarcerated.

         In January of 2015, the circuit court held a dispositional hearing and, after reviewing the
evidence, terminated petitioner’s parental rights to D.G. and W.G. The circuit court denied
petitioner’s request for a dispositional improvement period and denied any post-termination
visitation. Petitioner appeals from the dispositional order.

       The Court has previously established the following standard of review:



       3
         H.W. was the subject of two previous abuse and neglect petitions. She began abusing
drugs in 2005, which perpetuated the first petition’s filing. She went to a drug rehabilitation
program in 2005. H.W. relapsed and began abusing alcohol and drugs again in 2007 and relapsed
several times between 2005 and 2010. She was involved in an abusive relationship in 2008 and
exposed her biological children to domestic violence. H.W. physically abused one of her
biological children in 2012, leading to the filing of the second petition. While that case was
ongoing, H.W. continued to abuse substances, failed to manage her mental illness, and engaged
in domestic violence with petitioner which led to a third.
       4
         Thereafter, the petition was amended to include allegations against petitioner for
dismissing the protective order against H.W. after its adoption by the circuit court, and for
allowing H.W. to have contact with D.G. and W.G. despite the circuit court’s adoption of the no-
contact order. The petition was amended a second time to include additional allegations that
petitioner and H.W. disregarded the circuit court’s no-contact order again and jointly planned,
held, and attended a birthday party for D.G. and W.G.
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               “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 DHHR pursued only one course of action and that was to break up his family. We disagree.
Upon our review, we find that the circuit court correctly found that the DHHR was not obligated
to make reasonable efforts to achieve permanency.

        To begin, West Virginia Code § 49-6-1(c) requires that “[a]t the time of the institution of
any proceeding under this article, the department shall provide supportive services in an effort to
remedy circumstances detrimental to a child.” Following the children’s removal from petitioner’s
home, they were returned to him with the condition that he prevent any contact between the
children and H.W. However, petitioner repeatedly exposed his children to H.W. in violation of
the circuit court’s protective order. Further, petitioner refused to participate in any DHHR
service plans that involved himself and the children without H.W. Ultimately, the circuit court
considered the nine years of services offered to H.W.5 and petitioner’s refusal to adhere to the
circuit court’s order to protect the children from H.W. when finding that the DHHR made
reasonable efforts to achieve permanency and in determining that reunification with petitioner
was not appropriate for permanency. Therefore, we find that the circuit court did not err in its
reasonable efforts finding.

        Next, the Court finds no error in the circuit court’s denial of petitioner’s motions for both
post-adjudicatory and dispositional improvement periods. West Virginia Code § 49-6-12 permits
the circuit court to grant improvement periods when the parent has demonstrated by “clear and
convincing” evidence that he is likely to fully participate in the improvement period. Petitioner
argues that the circuit court erred when it denied his requests for improvement periods because
he demonstrated that he would diligently participate in any services that would reunite H.W. with
his family. Petitioner’s argument on this issue minimizes his continued violations of the circuit
court’s protective order and his facilitation of contact between the children and H.W. As the
circuit court noted, petitioner would have been a candidate for an improvement period but for his
ongoing relationship with H.W., and his flagrant and his continued violations of previous orders

       5
        At the institution of this proceeding, H.W. was already on an improvement period in
another abuse and neglect case and had been receiving services through the DHHR for the
proceeding nine years.
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in place to protect his children. Petitioner demonstrated that he was unwilling to put his
children’s interests over his desire to maintain a relationship with H.W. Consequently, we find
that the evidence appropriately supported the circuit court’s denial of petitioner’s requests for
both post-adjudicatory and dispositional improvement periods.

        Next, the Court finds no error in the circuit court’s termination of petitioner’s parental
rights to D.W. and W.G. While petitioner argues that he did not meet any of the circumstances
for termination, we find that the circuit court properly terminated petitioner’s parental rights in
finding that petitioner could not substantially correct the conditions of abuse and neglect.
Pursuant to West Virginia Code § 49-6-5(b)(3), a situation in which there is no reasonable
likelihood that the conditions of abuse or neglect can be substantially corrected includes one in
which

       [t]he abusing parent . . . [has] 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, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child.

The circuit court specifically made this finding in regard to petitioner, based upon the evidence
above related to his non-compliance with the circuit court’s orders and his failure to correct the
conditions of abuse and neglect created by his children’s contact with H.W.

        Pursuant to West Virginia Code § 49-6-5(a)(6), for a circuit court to terminate parental
rights there must be a finding that there is no reasonable likelihood that the conditions of abuse
and neglect can be substantially corrected in the near future and that termination is necessary for
the welfare of the children. Further, we have held that “[c]ourts are not required to exhaust every
speculative possibility of improvement before terminating parental rights.” In re Katie S., 198
W.Va. 79, 479, S.E.2d 589 (1996). The circuit court made this finding specifically based on
petitioner’s refusal to abide by the circuit court’s orders put in place to protect the children from
H.W., his refusal to participate in any DHHR service plans, and the circuit court’s belief that
petitioner would not abide by its future orders to protect the children from H.W. Contrary to
petitioner’s argument that he could not fail to respond to a reasonable family/rehabilitative case
plan because no plan was ever in place, the circuit court found that petitioner refused to
participate in any service plans that did not include H.W. and her reunification with the family.
Therefore, petitioner made it impossible for the DHHR to offer him services in an attempt to
remedy the conditions of abuse and neglect.

        As noted above, the circuit court specifically found there was no reasonable likelihood
that petitioner could substantially correct the conditions of abuse and neglect and that
termination was necessary. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are
directed to terminate parental rights upon these findings. We have also held as follows:

               “Termination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49–6–5 . . . may be employed without the use of intervening less restrictive

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       alternatives when it is found that there is no reasonable likelihood under W.
       Va.Code [§] 49–6–5(b) . . . 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). Because the circuit court
properly found that there was no reasonable likelihood that petitioner could substantially correct
the conditions of abuse and neglect, termination of his parental rights to both children was not
made in error.

         Finally, we find no error in the circuit court’s denial of post-termination visitation
between petitioner and the children. While petitioner contends that he was a critical support for
the children and that there was a need for an ongoing relationship, we disagree. Post-termination
visitation is a discretionary action and not compulsory upon the circuit court. We have
previously held that a circuit court must consider three factors when ordering post-termination
visitation: whether there is a close emotional bond between parent and child; the child’s wishes;
and whether the visitation would be detrimental to the child’s best interests. In re Alyssa W., 217
W.Va. 707, 619 S.E.2d 220 (2005). Here, according to the guardian, neither child desired to see
petitioner. Further, the guardian noted that D.G. has been in and out of treatment facilities to help
his behavioral issues, and W.G. is currently placed in a pre-adoptive home and only mentions
petitioner when prompted to do so. The circuit court correctly found that this evidence, coupled
with petitioner’s unwillingness to protect his children from H.W., rendered post-termination
visitation detrimental to the children and not in their best interests. Therefore, we find no error in
the circuit court’s denial of post-termination visitation between petitioner and the children.

       For the foregoing reasons, the circuit court’s January 29, 2015, termination order is
hereby affirmed.
                                                                                   Affirmed.

ISSUED: November 23, 2015

CONCURRED IN BY:

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




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