STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED In re: J.G.-1, J.G.-2, and K.G. 

November 22, 2017 

No. 17-0608 (Taylor County 16-JA-66, 16-JA-67, & 16-JA-68) EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father J.G.-3, by counsel Gregory Michael, appeals the Circuit Court of Taylor 

County’s June 7, 2017, order terminating his parental rights to J.G.-1, J.G.-2, and K.G.1 The 

West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee 

Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem 

(“guardian”), Allison C. Iapalucci, 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 

motion for a post-dispositional improvement period without making a finding on the record as to 

his anticipated release from prison or his post-release plans for employment. 

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 September of 2016, the DHHR filed an abuse and neglect petition against petitioner 

and the mother. According to the petition, the DHHR received a referral that the mother 

knowingly allowed her boyfriend to physically and emotionally abuse J.G.-1. The petition 

alleged that petitioner abused and neglected the children by lack of contact, support, supervision, 

and protection. The petition further alleged that petitioner had no relationship with the children, 

having been incarcerated. 

In November of 2016, the circuit court held an adjudicatory hearing, for which petitioner 

was transported from his place of incarceration. The circuit court heard the mother’s testimony, 

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, because two of the children and petitioner 

share the same initials, we will refer to them as J.G.-1, J.G.-2, and J.G.-3 throughout this 

memorandum decision. 

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who reported that she and petitioner were in a relationship for thirteen years, during which he 

was an extremely violent person. The last incident of domestic violence occurred in 2013, when 

petitioner threw the mother through a wall. The mother nearly died from the incident. Further, 

the mother stated that the children were present for the abuse and that, at times, the violence was 

directed at them. Subsequent to the latest incident, petitioner was charged for his third offense of 

domestic violence and was ultimately incarcerated. The mother received custody of the children 

with petitioner receiving limited visitation. Petitioner disagreed with parts of the mother’s 

testimony, but admitted that he had been convicted of domestic violence offenses three times. 

Petitioner also admitted that the children were present for some incidents of violence and that he 

was still dealing with some domestic violence issues while incarcerated. Ultimately, petitioner 

stipulated to the conditions of abuse alleged in the petition and the circuit court adjudicated him 

as an abusing parent. Further, the circuit court denied petitioner’s motion for an improvement 

period and set the dispositional hearing. 

In February of 2017, the circuit court held a dispositional hearing. Petitioner was not 

present but was represented by counsel. The circuit court found that petitioner remained 

incarcerated and that “continuation in the home of [petitioner] . . . [was] contrary to the welfare 

and the best interests of the [children]” due to findings of abuse and/or neglect, petitioner’s 

current incarceration, and his domestic violence behavior. The circuit court further found that 

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

neglect and that termination was necessary for the children’s welfare. Petitioner requested a postdispositional improvement period to begin upon his release from jail. Ultimately, the circuit 

court denied petitioner’s motion for a post-dispositional improvement period and terminated his 

parental rights to the children.2 It is from the June 7, 2017, dispositional order that petitioner 

appeals. 

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 

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). 

2

According to the DHHR, custody of the children was returned to their mother after her 

successful completion of an improvement period and dismissal of the petition against her. 

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Petitioner argues on appeal that the circuit court erred in denying his motion for a postdispositional improvement period without making a finding regarding his scheduled release date 

from prison. We disagree. We have often noted that 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) (holding that “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) (holding that “[i]t 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 [parent] 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). Further, we have held that “the commencement of a dispositional improvement 

period in abuse and neglect cases must begin no later than the date of the dispositional hearing 

granting such improvement period.” In re Emily, 208 W.Va. 325, 338, 540 S.E.2d 542, 555, 

(2000). 

The record is clear that petitioner failed to demonstrate that he was likely to fully 

participate in an improvement period in the instant proceedings. While the circuit court did not 

make specific findings regarding petitioner’s scheduled release from prison and anticipated postrelease employment, it did make findings that petitioner remained incarcerated, and thus was 

unable to participate in an improvement period. Petitioner does not dispute that he could not have 

started participating in his improvement period on the date of the dispositional hearing. The 

circuit court also found that there was no reasonable likelihood that the conditions of abuse and 

neglect could be corrected. West Virginia Code § 49-4-604(6) provides that circuit courts are 

directed to terminate parental rights upon finding 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. We have also held that “[t]ermination . . . may 

be employed without the use of intervening less[-]restrictive alternatives when it is found that 

there is no reasonable likelihood . . . that conditions of neglect or abuse can be substantially 

corrected.” Katie S., 198 W.Va. at 81, 479 S.E.2d at 591, Syl. Pt. 7, in part. 

In this case, the record is clear that there was no reasonable likelihood that petitioner 

could correct the conditions of abuse. Petitioner had been arrested three times due to instances of 

domestic violence. Petitioner admitted that he committed acts of domestic violence in front of 

the children. Further, this Court has taken judicial notice of the fact that subsequent to his release 

from prison and the filing of this appeal, petitioner was once again arrested in July of 2017 due 

to violent behavior. Accordingly, the circuit court did not err in denying petitioner an 

improvement period and terminating his parental rights. 

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

June 7, 2017, order is hereby affirmed. 

Affirmed. 

ISSUED: November 22, 2017 

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CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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