### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

FILED

In re A.C. and L.C. 

### October 12, 2018

EDYTHE NASH GAISER, CLERK No. 18-0241 (Roane County 17-JA-28 and 17-JA-29) SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Father W.C., by counsel Andrew Vodden, appeals the Circuit Court of Roane County’s February 13, 2018, orde r terminating his parental rights to A.C. and L.C. 1 The West Virginia Department of Health and Huma n Resources (“DHHR”), by counsel Lee Niezgoda, filed a response in sup port of the circuit court’s order. The guardian ad li tem (“guardian”), Michael W. Asbury Jr., filed a response on behalf of the children in support of the circuit court’s order. On appeal, petitioner argue s that the circuit court erred in finding that he did not substantially comply with his pos t-adjudicatory improvement period, denying his motion for an extension of his post-adjudicatory 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21
of the Rules of A ppellate Procedure.

On April 28, 2017, the DHHR filed an abus e and neglect petition alleging that petitioner’s substance abuse caused him to abus e and neglect the children. Petitioner waived his preliminary hearing. On June 19, 2017, the circuit court held an adjudicatory hearing at which petitioner stipulated to the allegations of abuse and negl ect and he was granted a post

adjudicatory improvement period. Pursuant to his case plan, petitioner agreed to complete inpatient substance abuse treatment, attend ad diction support meetings, comply with random drug screens, complete parenting and adult li fe skills training, participate in therapy, and maintain employment and stable, appropriate housing.

In January of 2018, the DHHR and the guardian filed a joint motion to terminate petitioner’s parental rights due to his non-co mpliance with his post-adjudicatory improvement period and case plan. On January 11, 2018, the circ uit court held a review hearing at which 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).

1DHHR presented evidence that petitioner refused to drug screen at th e day report center.
Evidence was admitted to show th at petitioner completed an inpatient substance abuse treatment program. However, petitioner admitted that he had not participated in parenting services, addiction support services, or th erapy, and he was unable to secure stable and appropriate housing, as required by the case plan. Additiona lly, he explained that he had not seen his children since August of 2017. Accord ing to petitioner, he was informed that the DHHR was not receiving his drug screen results from the Me dExpress where he was sc reening. Consequently, visitation with the children was suspended. Howe ver, petitioner did not contact the caseworker or take any steps to resolve this problem. Du e to his noncompliance with his post-adjudicatory improvement period, the circuit court denied petitioner’s motion for an extension.

On February 8, 2018, the circuit court held a final dispositional hearing to address the DHHR and the guardian’s joint motion to terminate petitioner’s parental rights. The circuit court took judicial notice of evidence from prior hearings and found no re asonable likelihood that petitioner could substantia lly correct the conditions of abuse and neglect in the near future and that termination of his parental rights was in th e children’s best interests. Ultimately, petitioner’s parental rights were terminated in the circuit court’s February 13, 2018, order. 2 It is from this order that petit ioner appeals.

The Court has previously establishe d 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 sh all 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. Th ese findings shall not be set aside by a reviewing court unless cl early erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the revi ewing 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 diffe rently, 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). Upon our review, this Court finds no error in the pr oceedings below.

First, petitioner argues that the circuit court erred in finding that he did not substantially comply with his post-adjudicatory improvement pe riod. In support, he argues that he completed the “most important part of the improvement pl an,” the completion of an inpatient substance abuse treatment program. However, we do not find this argument persuasive. While it is

2 The mother’s parental rights were also term inated below. According to respondents, the children are placed together in a foster home and the permanency plan is to find a suitable adoptive home.

2uncontested that petitioner completed inpatient substance abuse treatment, he failed to complete nearly every other term of his improvement pe riod. Petitioner fails to acknowledge that he did not participate in post-tr eatment addiction support services, th erapy, or parenting and adult life skills training. Additionally, b ecause the DHHR was not receivi ng his drug screen results, visitation with the children was suspended. West Virginia Code § 49-4-610(4) provides that the parent “shall be responsible fo r the initiation and completion of all terms of the improvement period.” Petitioner failed to inquire as to why the DHHR was not receiv ing the drug screen results, or how to resolve the problem. Lastly, pe titioner failed to secure appropriate and stable housing during the proceedings. Based on this eviden ce, petitioner failed to substantially comply with the terms and conditions of his post-adjudi catory improvement period and is entitled to no relief in this regard.

Next, petitioner argues that th e circuit court erred in denyin g his motion for an extension of his post-adjudicatory improvement period. In support, pe titioner reiterates th at he substantially complied with the terms and conditions of hi s post-adjudicatory improvement period and “meaningfully participated in the services offe red by the [DHHR].” We disagree. Pursuant to West Virginia Code § 49-4-610(6),

[a] court may extend any improvement pe riod granted pursuant to subdivision (2) or (3) of this section for a period not to exceed three months when the court finds that the [parent] has substantially complied with the terms of the improvement period; that the continuation of the im provement period will not substantially impair the ability of the department to permanently place the child[ren]; and that
the extension is otherwise consistent with the best interest of the child[ren].

As discussed above, despite the fact that he completed inpati ent substance abuse treatment, petitioner did not substantially comply with the majority of the terms and conditions of his post-adjudicatory improveme nt period. Petitioner did not par ticipate in therapy, parenting services, or secure stable and appropriate hous ing, among other things pr eviously discussed. Moreover, due to his failure to substantially comply with the terms and conditions of his post

adjudicatory improvement period, granting petitione r an extension of the same would only delay establishing permanency for the children. Based on this evidence, petitioner did not meet the requisite burden to receiv e an extension of his post-adjudica tory improvement period. Therefore,
we find no error in the circuit c ourt’s denial of petitioner’s moti on for an extension of his post

adjudicatory improvement period.

Further, we find no error in the circuit court’ s termination of petiti oner’s parental rights. Petitioner argues that termination of his parental rights was not in the children’s best interests. We disagree. West Virginia Code § 49-4-604(b)(6) provides that ci rcuit courts are to terminate parental rights upon findings that there is “no reasona ble likelihood that the conditions of neglect or abuse can be substantially corrected in the near future” and that termination is necessary for
the children’s welfare. West Virginia Code § 49-4-604(c)(3 ) provides that no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected exists when “[t]he abusing parent . . . ha[s ] not responded to or followed through with a reasonable family case plan or other reha bilitative efforts[.]”

3The evidence previously discussed also suppor ts the termination of petitioner’s parental rights. Petitioner failed to comply with the ma jority of the terms and conditions of his post

adjudicatory improvement period. Based on this evidence, there was no reasonable likelihood that petitioner could substantially correct the cond itions of abuse and neglect in the near future. Because petitioner failed to correct the conditions of abuse and neglect, it is clear that the termination of petitioner’s parental rights was in th e children’s best interest in order to establish permanency. Therefore, the circui t court did not err in terminati ng petitioner’s pare ntal rights.

Lastly, due to the fact that the DHHR is con tinuing to work to secure a suitable adoptive home for the children, this Court reminds the circui t court of its duty to establish permanency for the children. Rule 39(b) of the Rules of Proc edure for Child Abuse and Neglect Proceedings requires:

At least once every three months until permanent placement is achieved as defined in Rule 6, the court shall conduct a permanent placement review conference, requiring the multidisciplinary treatment team to attend and report as to progress and development in the case, for the purpose of reviewing the progress in the permanent pla cement of the child.

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of Procedure for Child Abuse and Neglect Proceed ings to find permanent placement for the
children within twelve months of the date of the dispositional orde r. As this Court has stated,

[t]he [twelve]-month period provided in Rule 43 of the West Virginia
Rules of Procedures for Child Abuse and Neglect Proceedi ngs for permanent placement of an abused and neglected child following the final dispositional order must be strictly followed except in th e most extraordinary circumstances which are fully substantiated in the record.

Cecil T. , 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that

[i]n determining the appropriate permanent out-of-home placement of a child under W.Va. Code § 49-6-5(a)(6) [ 1996] [now West Virg inia Code § 49-4

- 604(b)(6)], the circuit court shall give priority to s ecuring a suitable adoptive
home for the child and shall consider other placement alternatives, including permanent foster care, only where the c ourt finds that adoption would not provide custody, care, commitment, nurturing and di scipline consistent with the child’s best interests or where a suitable adoptive home can not be found.

Syl. Pt. 3, State v. Michael M. , 202 W.Va. 350, 504 S.E.2d 177 (1998) . Finally, “[t]he guardian
ad litem’s role in abuse and ne glect proceedings does not actual ly cease until such time as the child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard , 185 W.Va. 648, 408 S.E.2d 400 (1991).

For the foregoing reasons, we find no error in the decision of the circuit court, and its February 13, 2018, dispositional order is hereby affirmed.

4Affirmed.

ISSUED : October 12, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Paul T. Farrell sit ting by temporary assignment

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Allen H. Loughry II, suspende d and therefore not participating

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