                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                        FILED
In re A.W. and M.W.                                                                  June 25, 2020
                                                                                    EDYTHE NASH GAISER, CLERK
                                                                                    SUPREME COURT OF APPEALS
No. 19-1128 (Kanawha County 18-JA-739 and 18-JA-740)                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION


        Petitioner Father T.W., by counsel Edward L. Bullman, appeals the Circuit Court of
Kanawha County’s November 4, 2019, order terminating his parental rights to A.W. and M.W. 1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M.
Parsley, filed a response in support of the circuit court’s order. The guardian ad litem, Christopher
C. McClung, 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 denying his request for a post-dispositional
improvement period and terminating his parental 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.

        In December of 2018, the DHHR filed an abuse and neglect petition alleging that petitioner
was arrested for domestic battery against the mother. The petition further contained allegations of
inappropriate housing, as petitioner and the mother lived in a detached garage next door to the
children’s grandparents’ residence. The petition alleged that petitioner and the mother used the
grandparents’ home as a mailing address and that they primarily resided in the garage apartment
or a nearby condemned home, leaving the children with the grandparents much of the time. The
petition further alleged that petitioner abused methamphetamine and failed to provide the children

       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).

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with clothing, food, housing, and supervision. Petitioner waived his preliminary hearing and was
granted a preadjudicatory improvement period.

        In May of 2019, the circuit court held a review hearing on petitioner’s improvement period,
found that he was failing to cooperate with drug screening, and ordered that he cooperate with a
new drug screen provider. In July of 2019, the circuit court held another review hearing wherein
the DHHR reported that petitioner was noncompliant and had failed to comply with services.
Petitioner had only participated in two drug screens, which were positive for amphetamine,
methamphetamine, and marijuana. As such, the DHHR moved for his improvement period to be
terminated. The circuit court granted the DHHR’s motion and suspended petitioner’s services.

         In September of 2019, the circuit court held an adjudicatory hearing wherein petitioner
testified that he could not care for the children, was unemployed, and admitted to using
methamphetamine and marijuana. The circuit court adjudicated him as an abusing and neglecting
parent and denied his motion for a post-adjudicatory improvement period.

         In November of 2019, the circuit court held a dispositional hearing. Petitioner moved for a
post-dispositional improvement period, while the DHHR moved for termination of his parental
rights. At the hearing, petitioner testified that he had been recently employed, but was still unable
to provide the children with appropriate housing and he admitted to having a substance abuse
problem. Petitioner also admitted that he failed to enroll in a substance abuse treatment program.
A DHHR caseworker testified that petitioner failed to participate in a drug screen at his last two
multidisciplinary team meetings and that the DHHR was moving for termination because of his
refusal to comply with services. In light of the evidence at the dispositional hearing, the circuit
court found that petitioner had “active substance abuse issues that prevent[] him from parenting.”
Further, the circuit court found that petitioner “was awarded an improvement period and failed to
comply,” “missed visitations causing emotional harm to the children,” and “even passed out at
visitation.” Finally, the circuit court found that petitioner was “emotionally unstable,” could not
provide the children with adequate housing, and had been “unemployed for the majority of the
case and depend[ed] on others to support him.” Based upon these findings, the circuit court found
there was no reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected in the near future, and that it was in the best interests of the children to terminate
petitioner’s parental rights. 2 The circuit court entered an order reflecting its decision on November
4, 2019. Petitioner appeals from this order.

       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

       The mother’s parental rights were also terminated during the proceedings below.
       2

According to the parties, the permanency plan for the children is adoption in their current foster
placement.

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       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 circuit court erred in denying him a post-dispositional
improvement period because he had previously demonstrated by clear and convincing evidence
that he would comply with the terms and conditions of an improvement period. Petitioner argues
that several personal hardships, including the death of his grandfather and difficulty in obtaining
housing, resulted in his inability to fully comply with services. We find petitioner’s argument
unavailing.

        Although there were points in time where petitioner complied with services generally, he
ignores the fact that he did not complete many of the terms required by his family case plan. Most
importantly, petitioner’s argument on appeal entirely fails to address his ongoing substance abuse
issues and his failure to take any steps to remedy these issues. Petitioner does not dispute that he
failed to participate in multiple required drug screens. Further, petitioner admitted at the
dispositional hearing that he had a substance abuse problem but failed to enroll in a treatment
program. However, instead of addressing any of these deficiencies, petitioner’s argument in
support of this assignment of error focuses entirely on the issue of his lack of appropriate housing
and certain factors that he believes precluded his ability to remedy this issue. Without addressing
the specific difficulties that petitioner believes resulted in his continued inability to provide the
children with appropriate housing, we note that petitioner bore the responsibility of completing the
goals of his family case plan, and the record shows that he took almost no steps to achieve these
goals.

         Despite the overwhelming evidence of petitioner’s noncompliance, he nonetheless argues
that he would have fully participated in a post-dispositional improvement period. West Virginia
Code § 49-4-610(3)(D) provides that in order to obtain a post-dispositional improvement period
after the granting of a previous improvement period, a parent must “demonstrate[] that since the
initial improvement period, the [parent] has experienced a substantial change in circumstances”
and that “due to that change in circumstances, the [parent] is likely to fully participate in the
improvement period.” Further, the circuit court has discretion to deny an improvement period
when no improvement is likely. In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002).
Here, the record is clear that petitioner failed to fully comply with the terms and conditions of his
prior preadjudicatory improvement period. The evidence establishes that he failed to participate in
drug screens, maintain employment, attend visitations, or secure stable housing throughout his

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improvement period. The circuit court considered this evidence when it terminated his
preadjudicatory improvement period and when it denied his motion for a post-dispositional
improvement period. Even more importantly, petitioner fails to cite to any evidence in the record
that shows that he underwent a substantial change in circumstances subsequent to his
preadjudicatory improvement period. Therefore, we find that the circuit court did not err in denying
petitioner’s motion for a post-dispositional improvement period.

        Finally, based on the evidence of petitioner’s sporadic compliance and his failure to secure
stable housing, remain drug free, attend visitations, and maintain employment, the circuit court
found that petitioner failed to follow through with the DHHR’s rehabilitative services. Importantly,
this constitutes a situation in which there is no reasonable likelihood that the conditions of abuse
and neglect can be substantially corrected in the near future under West Virginia Code § 49-4-
604(c)(3) (2019). 3 On appeal, petitioner asserts that the circuit court’s decision to terminate was
improper when he was making substantial progress toward reunification. We disagree and find
that the circuit court’s order is specific and enumerates several areas where petitioner failed to
make progress as the basis for the termination of his parental rights. The circuit court’s findings
are based on substantial evidence that petitioner was never fully compliant in his improvement
period and that he failed to avail himself of many of the services offered. Moreover, the circuit
court found that termination of petitioner’s parental rights was in the children’s best interests.
According to West Virginia Code § 49-4-604(b)(6) (2019), circuit courts may terminate parental
rights upon these findings. Further, we have long held that

                “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [West Virginia
       Code § 49-4-604 (2019)] . . . may be employed without the use of intervening less
       restrictive alternatives when it is found that there is no reasonable likelihood under
       [West Virginia Code § 49-4-604(c) (2019)] . . . 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). The record shows that the circuit
court had ample evidence upon which to base these findings, and we decline to disturb them on
appeal. As such, termination of petitioner’s parental rights was appropriate.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 4, 2019, order is hereby affirmed.

                                                                                          Affirmed.




       3
        Although the Legislature amended West Virginia Code § 49-4-604 effective June 5, 2020,
including renumbering the provisions, the amendments do not impact this case.
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ISSUED: June 25, 2020

CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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