1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re C.W. 

No. 19-0936 (Randolph County 18-JA-159)

MEMORANDUM DECISION

Petitioner Father J.W., by counsel J. Brent Easton, appeals the Circuit Court of Randolph 

County’s September 11, 2019, order terminating his parental rights to C.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 (“guardian”), Melissa T. 

Roman, filed a response on behalf of the child also in support of the circuit court’s order. On 

appeal, petitioner argues that the circuit court erred in terminating his parental rights without first 

granting him an improvement period.

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 a child abuse and neglect petition against the 

mother and her boyfriend, alleging that they abused drugs in the home.2 Specifically, the DHHR 

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).

2

Initially, the mother’s boyfriend was listed as the father of C.W. in the petition. 

However, subsequent to the filing of the petition, the parties admitted that petitioner was C.W.’s 

father and that he and the mother were previously in a relationship. At the time of the petition’s 

filing, the mother was in a relationship with her boyfriend, petitioner’s brother. No allegations 

 (continued . . .)

FILED

June 24, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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alleged that it received a referral wherein the reporter claimed that the mother abused drugs, 

slurred her words, stumbled, rambled, and made no sense when she spoke. A Child Protective 

Services (“CPS”) worker interviewed A.S., the step-sibling of C.W., who disclosed that the 

mother “sleeps a lot” and “take[s] pills.” A.S. also disclosed observing petitioner “hit her mom, 

yell in her face, and say bad words to her.” 

The DHHR filed an amended petition in February of 2019, adding petitioner to the 

proceedings after paternity testing revealed that he was C.W.’s father. The DHHR also alleged

that, during a forensic interview, A.S. made additional disclosures of drug abuse in the home and 

reported having observed petitioner hit her mother on one occasion. The DHHR concluded that 

petitioner exposed the children to domestic violence, failed to provide adequate supervision, and 

failed to protect his child from the abusive and neglectful circumstances that were ongoing in the 

home.

At an adjudicatory hearing held in May of 2019, petitioner stipulated to periodically 

abusing controlled substances and engaging in verbal altercations with the mother. The circuit 

court accepted petitioner’s stipulation and adjudicated him as an abusing parent. The circuit court 

ordered petitioner to submit to a drug screen, and petitioner tested positive for opiates. Petitioner 

moved the circuit court for a post-adjudicatory improvement period, but the motion was not 

ruled upon at that time. In July of 2019, the guardian filed a report indicating that petitioner 

failed to consistently submit to drug screens. The guardian opined that despite petitioner’s severe 

drug addiction, he had done nothing to address the same. The guardian recommended 

termination of petitioner’s parental rights.

In August of 2019, the circuit court held a dispositional hearing. The DHHR presented 

the testimony of a DHHR worker who testified that petitioner failed to call-in fifteen times 

during February of 2019 to ascertain whether he needed to submit to drug screening and only 

submitted to three drug screens during that month. Petitioner called in only twice during March 

of 2019 and missed six screens. Petitioner failed to call in or submit to any screens in April of 

2019. A Community Corrections worker reported that petitioner inconsistently submitted to 

screens, tested positive for opiates in May of 2019, and thereafter completely ceased submitting 

to screens. Petitioner testified that he worked at a restaurant and in construction. According to 

petitioner, he periodically took Hydrocodone to treat aches and pains associated with his physical 

labor, but claimed that he was not addicted to the substance.3 Petitioner also testified that he 

maintained housing and was in the process of acquiring a bigger residence to accommodate the 

child. Petitioner stated that he would participate in any classes or programs required by the 

DHHR if he were granted an improvement period. Despite testimony of the numerous missed 

drug screens, petitioner claimed that he fully participated in submitting to drug screens at the 

were made against petitioner in the initial petition. Additionally, the mother’s older child, A.S., is 

not petitioner’s child and is not at issue on appeal.

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Petitioner failed to provide any prescriptions for Hydrocodone or other opiates during 

the proceedings below. 
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beginning of the case. Petitioner also stated that the DHHR did not properly investigate “who 

[he] was as a person” and that he felt like he had been “railroaded.” Further, when asked what 

issues he needed to improve upon, petitioner testified, “[h]onestly, I don’t know. If you guys can 

advise me on something that would improve my parenting, please do.” 

Ultimately, the circuit court denied petitioner’s motion for a post-adjudicatory 

improvement period. The circuit court found that petitioner “had nine months to demonstrate that 

[he] will participate in an improvement period and [he] can’t even comply with [the] court’s 

order to walk across the street after hearings and screen.” The circuit court also found that the 

DHHR provided petitioner with several opportunities, but he rejected those opportunities and 

blamed the DHHR for his failures. The circuit court found that petitioner was presently unwilling 

or unable to adequately provide for the child’s needs. Further, the circuit court determined that 

there was no reasonable likelihood that petitioner could correct the conditions of abuse and 

neglect in the near future and that termination of his parental rights was necessary for the child’s 

welfare. Petitioner appeals the circuit court’s September 11, 2019, dispositional order

terminating his parental rights.

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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). 

Petitioner argues that the circuit court erred in terminating his parental rights without first 

granting him a post-adjudicatory improvement period. Petitioner contends that his testimony 

indicated that he was likely to fully participate in an improvement period because he 

demonstrated that he maintained housing and employment and confirmed that he would

participate in any services offered. Petitioner further contends that he submitted seventeen 

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The mother’s parental rights were also terminated below. The permanency plan for the 

child is adoption by A.S.’s relative.
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negative drug screens throughout the proceedings. According to petitioner, the circuit court 

abused its discretion in denying petitioner’s motion for an improvement period and in 

terminating his parental rights. We disagree.

The decision to grant or deny an improvement period rests in the sound discretion of the 

circuit court. See In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia 

law allows the circuit court discretion in deciding whether to grant a parent an improvement 

period.”); Syl. Pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“It is within 

the court’s discretion to grant an improvement period within the applicable statutory 

requirements[.]”). We have also held that a parent’s “entitlement to an improvement period is 

conditioned upon the ability of the [parent] to demonstrate ‘by clear and convincing evidence 

that the respondent is likely to fully participate in the improvement period.’” In re Charity H., 

215 W. Va. 208, 215, 599 S.E.2d 631, 638 (2004).

Having reviewed the record, we find that the circuit court did not err in denying 

petitioner’s request for an improvement period. The overwhelming evidence set forth below 

demonstrates that petitioner failed to consistently submit to drug screens. While petitioner claims 

he produced seventeen negative screens, testimony at the dispositional hearing indicated that he 

missed numerous screens. In fact, petitioner missed three screens in February of 2019, six 

screens in March of 2019, eight screens in April of 2019, seven screens in May of 2019, six 

screens in June of 2019, and seven screens in July of 2019. Petitioner did not attempt to call in to 

ascertain whether he needed to submit to a drug screen after May of 2019. Petitioner also tested 

positive for opiates in May of 2019 and at the dispositional hearing. Moreover, petitioner blamed 

the DHHR for his lack of participation, claimed they “railroaded” him, and opined that he did not 

know what he needed to improve upon as a parent. We have previously held that failure to 

acknowledge the issues of abuse and neglect render an improvement period an “exercise in 

futility.” In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted).

Based on petitioner’s failure to comply with drug screens and accept responsibility for his 

actions, we find no error in the circuit court’s denial of his motion for an improvement period.

The evidence as set forth above also demonstrates that the circuit court did not err in 

terminating petitioner’s parental rights. West Virginia Code § 49-4-604(b)(6) (2019)5 provides 

that circuit courts are to terminate parental rights upon findings that there is “no reasonable 

likelihood that the conditions of neglect or abuse can be substantially corrected in the near 

future” and that termination is necessary for the child’s welfare. West Virginia Code § 49-4-

604(c) (2019) provides that a situation in which there is “[n]o reasonable likelihood that [the] 

conditions of neglect or abuse can be substantially corrected” includes when the abusing parent 

has “demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own 

or with help.”

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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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Here, the evidence demonstrates that there was no reasonable likelihood that petitioner 

could correct the conditions of neglect in the near future. As shown above, petitioner failed to 

participate in court-ordered drug screens, tested positive for opiates during the proceedings, and

blamed the DHHR for his failure to participate. Petitioner could not articulate what issues he 

needed to address to improve his parenting. Based on the foregoing, it is clear that there was no 

reasonable likelihood that petitioner could correct the conditions of abuse and/or neglect and that 

termination was necessary for the child’s welfare. While petitioner claims he should have been 

granted an improvement period prior to the termination of his parental rights, we have previously 

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). Petitioner failed to comply 

with the circuit court’s orders below and failed to acknowledge the extent of his actions as of the 

dispositional hearing. Accordingly, the circuit court’s findings are fully supported by the record 

below, and we find no error in the termination of petitioner’s parental rights.

For the foregoing reasons, we find no error in the decision of the circuit court, and its 

September 11, 2019, order is hereby affirmed.

Affirmed.

ISSUED: June 24, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead 

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison