### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

In re D.B.-1, S.B., and O.B. 

### FILED May 14, 2018
No.) 18-0053 (Kanawha County 17-JA-359, 360, and 361) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Father D.B.-2, by counsel Adam Campbell, appeals the Circuit Court of Kanawha County’s December 27, 2017, order termina ting his parental rights to D.B.-1, S.B., and
O.B. 1 The West Virginia Department of Hea lth and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a response in support of th e circuit court’s order. The guardian ad litem (“guardian”), Elizabeth Kavitz, fi led a response on behalf of the ch ildren in support of the circuit court’s order. On appeal, petiti oner argues that the circuit cour t erred in denying his motion for 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 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.

In August of 2017, the DHHR filed a petition alleging that petitioner and the mother abused controlled substances, physically abused the children, and psychologically abused the children. Specifically, S.B. reporte d to the DHHR that her father recently choked her and O.B. had to physically intervene to protect her. S.B. reported that her parents had crushed and snorted pills in front of her and that she found what she believed to be a package of methamphetamine in her mother’s coat. Further, S.B. reported that her parents constantly tell he r that she is hated and that they wished she was in foster care. O.B. corroborated S.B.’s report s. Both girls indicated that they were afraid of their parents. Reporte dly, D.B.-1 no longer lived with her parents. She

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). Additionally, b ecause petitioner and one of the children share the same initials, we refer to petitioner as D.B.-2 and the child as D.B.-1 throughout this
memorandum decision.

1made an earlier referral to the DHHR and then moved to Mingo County to live with a friend. 2 Petitioner waived his preliminary hearing in September of 2017.

The circuit court held an adjudicatory hearing in October of 2017, during which petitioner stipulated to the allegations in the pe tition and admitted that his drug use impaired his ability to parent the children. Petitioner moved for a post-adjudicatory improvement period and
the circuit court denied his motion. The circ uit court ordered that the DHHR provide reunification services to petitioner and require d the following: random drug screens, visitation pending clear drug screens, paren ting education, adult lif e skills education, domestic violence counseling, a psychological evaluation, and a bus pa ss. Additionally, the circ uit court ordered the DHHR to assist in finding an inpatient drug rehabilitation service for petitioner.

In December of 2017, the circuit court held a dispositional hear ing. The circuit court took judicial notice of a drug screen that petitioner provided at an earlier hearing, which was positive for amphetamine and methamphetamine. The DHH R presented evidence that petitioner was provided with adult life skills education, parentin g classes, and drug screens. However, petitioner only sporadically participated in those services . A DHHR worker testified that petitioner had tested positive on random drugs screens and faile d to call in for random drug screens on multiple occasions. Additionally, the worker testified that petitioner attended some classes, but showed no signs of improvement. The worker also noted th at because petitioner was not participating in random drug screening he had not visited with the children since their removal. Further, the worker testified that none of the children expressed an interest in being returned to their parents’ custody. Petitioner admitted that he continued to te st positive for drugs, failed to fully participate in drug screening, and failed to be admitted to an inpatient drug rehabilitation service. Petitioner stated that he no longer associated with his wife and asserted that she clouded his judgment while they were together.

Ultimately, the circuit court found the following: petitioner’s substance abuse and domestic violence prevented him being an appropriate parent; petitioner had not been compliant with all services; petitioner continued to test positive for drugs and failed to call in for drug screens; petitioner had not visited with the ch ildren during the pendency of the case; and the DHHR could not provide any furthe r services to remedy the conditi ons of abuse and neglect in the foreseeable future. Based on these findings, the circuit court concluded that there was no
reasonable likelihood that the condi tions of abuse and neglect coul d be corrected in the near
future and that termination was in the best in terest of the children. The circuit court then terminated petitioner’s pare ntal rights to the children in its December 27, 2017, order. 3 Petitioner

2 The petition does not mention th e content of D.B.-1’s referral, but does mention that no
action had been taken on it.

3 The mother’s parental rights were also terminat ed in that order. According to the parties, the children are placed together in a foster home and their permanency plan is adoption in that
home.

2now appeals that order arguing only that the circuit court should have granted his motion for an improvement period. 4

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 proceedings below.

Petitioner’s only assignment of error is that the circuit cour t erred in not granting him an improvement period. Petitioner asse rts that the circuit court’s decision denied him an opportunity to improve his parenting defi ciencies by denying his motions for post-adjudicatory and postdispositional improvement periods. 5 Further, petitioner argues that testimony at the hearings in this matter suggested he took some steps to remedy the conditions of abuse and neglect, such as participation in some drug screens and classes, and disassociation from his wife. Therefore, petitioner argues that th e circuit court’s decision is contra ry to the evidence presented. 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 deci ding 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 an d convincing evidence, that the [parent] is likely

4 On appeal, petitioner does not raise an assign ment of error regardi ng the circuit court’s termination of his parental rights.

5 Although petitioner asserts on appeal that he moved for a post-dispositional improvement period, the record does not include th at motion and he does not cite to any such
motion in the record.

3to fully participate in the improvement period . . . .’” In re Charity H. , 215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004).

The circuit court did not err in denying peti tioner’s motion for an improvement period because he did not present clear an d convincing evidence that he was likely to “fully participate” in an improvement period. The record is clear that petitioner was provided multiple services from October of 2017 through December of 2017, in cluding supervised visitation with the children if petitioner coul d provide negative drug screens. De spite knowing that he could not use drugs and also visit with his children, petitioner continued to test positive for dr ugs and failed to call in for screens so consistently that he wa s never allowed visitation with them. “We have previously pointed out that the level of interest demonstrated by a parent in visiting his or her children while they are out of the parent’s cu stody is a significant factor in determining the parent’s potential to improve sufficiently and ach ieve minimum standards to parent the child.” In
re Katie S. , 198 W.Va. 79, 90, n.14, 479 S.E.2d 589, 600, n.14 (1996)(citing Tiffany Marie S.

, 196 W.Va. at 228 and 237, 470 S.E.2d at 182 and 191; State ex rel. Amy M. v. Kaufman , 196 W.Va. 251, 259, 470 S.E.2d 205, 213 (1996)). Further, petitioner’s participation in classes was sporadic and, according to th e DHHR, he made no improvement in his parenting. Although petitioner asserts that th e evidence below suggested he could remedy his issues, the record shows petitioner alone asserted that opinion. No other witnesses suppor ted the position that he could improve. Finally, petitioner argues that he disasso ciated from his wife and believes that was a positive step. However, petitioner could not descri be any way that his wife actually hindered his progress in services, and the DHHR did not see an issue in the parents remaining together.
Petitioner needed to address his drug use and presented no evidence that he could do so. Accordingly, we find that the circuit court di d not err in denying petitioner’s motion for an improvement period.

For the foregoing reasons, we find no error in the decision of the circuit court, and its December 27, 2017, order is hereby affirmed.

Affirmed.

ISSUED : May 14, 2018

CONCURRED IN BY :

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

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