1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In r e M.B. and P.B.

No. 19

- 0529 ( Jackson County 18

- JA

- 31 and 18

- JA

- 34)



### MEMORANDUM DECISION

Petitioner Father J.B.

, by counsel Ryan M. Ruth, appeals the Circuit Court of Jackson County ’s April 26, 2019, order terminating his parental rights to M.B. and P.B. 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”)

, Erica Brannon

Gunn

, filed a response on behalf of the children in su pport of the circuit court’s order

. On appeal, petitioner argues that the circuit court erred in denying his motion for a post

- adjudicatory improvement period and in 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 s ubstantial 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 March of 2018, the DHHR filed an abuse and neglect petition ag ainst the parents alleging that their substance abuse affected their ability t o parent and care for M. B . S pecifically, the DHHR alleged that the police investigated a report of an unattended toddler wading in floodwaters, and

later located the c hild’s parents asleep inside the home. According to the DHHR, the parents stated that they did not know the location of their child

, a nd the mother appeared both pregnant and under the influence of drugs or alcohol. Further, the petition alleged that the p arents had been con victed of drug offenses and were required to submit to regular drug screen ing

. The DHHR learned that petitioner tested pos itive for amphetamine in March of 2018, and the mother tested positive for methamphetamine in February of 2018.

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). 

### FILED
February 7, 2020

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

T hereafter , the circuit court held a contested preliminary hearing and found probable cause to believe that the child , M.B., was in imminent danger due to the parents’ lack of supervision and positive drug screens. Also, the circuit court learned that a s a result of the ir p ositive drug screens,

the mother was incarcerated for violating her probation and petitioner was placed on home incarceration for violating his parole

. While incarcerated, the mother gave birth to the second child,

P.B.

, who was born drug

- exposed. In April of 2018, the DHHR amended the p etition to allege that

P.B. was abused and neglected and suffered from withdrawal symptoms. The amended petition also alleged that the circuit court in petitioner’s criminal matter instructed him to find appropriate

in patient drug treatment prior to his sentencing hearing

. A subsequent preliminary hearing ratified

the removal of P.B. from the home. Later that month, petitioner participated in a psychological evaluation to determine parental fitness

, and the psychologist recommend ed , at a minimum, that petitioner attend intensive outpatient treatment. As of May of 2018, petitioner had failed to seek

in patient drug treatment as ordered by the circuit court in his criminal matter

, resulting in seven

mo nths of incarceration.

In June of 2018, the circuit court held an adjudicatory hearing . The parents did not appear

, but counsel represented them. The circuit court took judicial notice of testimony presented at the preliminary hearing and adjudicated the parents as abusing parent s based upon the lack of supervision of M.B. and the parents ’ positive drug screens . In November of 2018, the circuit court held a disposit ional hearing wherein p etitioner did no t appear, but counsel represented him. Petitioner’s disposition was continued in light of t he circuit court ’s grant of a post

- adjudicatory improvement period to the mother

.

In January of 2019, petitioner filed a moti on for a post

- adjudicatory improvement period

based upon his release from incarceration. On March 1, 2019, the DHHR filed a motion to terminate petitioner’s parental rights

, arguing that “[a]s a result of his drug use while under [c] ourt supervi sion and fa ilure to enter an [ in patient ] drug rehabilitation program [petitioner] was

reman ded to DOC custody to serve the remainder of his felony sentence. ” Further, it argued that petitioner failed to comply with drug screening after his release from custody and was given ample warnings regarding his noncompliance

.

On March 15

, 2019, t he circuit court held a final dispositional hearing

. In arguing against petitioner’s motion for an improvement period, t he DHHR presented evidence that petitioner was called to drug screen twenty

- two times from January of 2019 to March of 2019, but only appeared

to screen six times. Of the six screens, h e tested positive once for tetrahydrocannabinol (“ THC ”)

. Petitioner had three missed screens excused for his w ork, and the remai ning thirteen screens were “no show.” Ultimately, the drug

- screening center removed p etitioner as a par ticipant for his excessive noncompliance. Further, the DHHR worker testified that the multidisciplinary team recommended that petitioner attend inpatient drug treatment , but he never enrolled . The DHHR also referred petitioner to an intensive outpatient drug treatment program, but he never enrolled. Also, the DHHR worker testified that petitioner had not visited with the children since his release

from inc arceration due to his noncompliance with drug screening. In conclusion, the DHHR opposed petitioner’s motion for an improv ement period because he had done nothing throughout the case to indicate that he would successfully complete one

. T h e circuit court took petitioner’s

motion for an improvement period under advisement.3

In light of the testimony at the dispositional hearing that petitioner did not comply with the conditions of drug screening, had not attempted to enroll in drug treatment, and had not exercised

visitations with the children , the circuit court found that petitioner was not likely to participate in services to remedy the abuse and neglect in the home and denied his motion for a post

- adjudicatory improvement pe riod . Further , the circuit court found that petitioner denied having a substance abuse problem or that the children should have been removed by the DHHR, thus failing to accept
full responsibility

. Based upon these findings, the circuit court concluded that it was in the best

interest s of the children to terminat e petitioner’s parental rights. The circuit court entered an order reflecting its decision on April 26, 2019. Petitioner now appeals from this order

. 2

The Court has previou sly 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 mak e 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 erro neous 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 his motion for a post

adjudic atory improvement period when the evidence below demonstrated that he would have fully complied and participated in an improvement period. In support, petitioner argues that his employment made it difficult to regularly drug screen

, as he often worked far from the drug

screening center, which scheduled screenings during his work h ours

. Further, petitioner argues

that he needed employment to provide for his family, but the circuit court punished him for working. Lastly , petitioner acknowledges that it i s his responsibility to complete the terms and

conditio ns of an improvement perio d, but argues that he would have fully participated had the DHHR, the guardian, and the circui t court been willing to accommodate him regarding his employment. Upon review, we find that petitioner is entitled to no relief.

West Virginia Code § 49

- 4

- 610(2)(B) provides that the circuit court may grant a parent a

post

- adjudica tory improvement when the parent “ demonstrates, by clear and convincing evidence,

that the [parent] is likely to fully partic ipate in the improvement period.” “This Court has explained

that ‘ an improvement period in the context of abuse and neglect proceedings is viewed as an opportunity for the miscreant parent to modify his/her behavior so as to correct the conditions of

2 The parental rights of both parents were terminated during the proceedings below. According to the parties, the permanency plan for the children is adoption in their current foster placement.4

abuse and/or neglect with which he/she has been charged .’” In re Kaitlyn P. , 225 W. Va. 123, 126, 690 S.E.2d 131, 134 (2010) ( citation omitted). However,

[i]n order to remedy the abuse and/or neglect problem, the problem must first be acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator of said abuse and neglect, results in making the problem untreatable and in making an improvement period an exercise in futility at the child’s expense.

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

. Finally, “ the

circuit court has the 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).

While petitioner acknowledges his failure to comply with drug screens, he fails to address the circuit court’s finding that he did not accept responsibility for the children’s removal fr om his

home due to his substance abuse

. I n order to remedy the issues of abuse a nd/or neglect, petitioner

must acknowledge that his conduct constituted abuse and/or neglect

. Here, petitioner denied having a substance abuse problem at the final dispositional hearing despite his positive drug

screens
, drug

- related criminal conviction, and psychological evaluation findings to the contrary. Without an acknowledgme nt of his abuse and/or neglect, petitioner was not entitled to an improvement period

. See Kaitlyn P.

, 225 W. Va. at 127, 690 S.E.2d at 135 ( holding that “[a]bsent the parents’ acknowledgment of the abuse, the requirement for granting a post

- adjudicatory improvement period . . . was not satisfied ”).

Additionally , petitioner’s continuous une xcused missed screens meant he could not

exercise vi sitation. “We have previously pointed out that the level of interest demonstrated by a parent in visiting his or her children w hile they are out of the parent’ s custody is a significant f actor in determining the parent’ s potential to improve sufficiently and achieve 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) (citation omitted) ; State ex rel. Amy M. v. Kaufman , 196 W. Va. 251, 259, 470 S.E.2d 205, 213 (1996))

. Here, petitioner did not regu larly screen, and did not otherwise a ttempt to contact the DHHR regarding his work schedule . As a result of his noncompliance with drug screening, petitioner

could not exercise visitation with the children. In light of the findings above , the circuit court reasonably found that petitioner was unlikely to fully participate in an improvement period and we

find no error in the circuit court’s denial of his motion.

Further, we find no error in the circuit court’s termination of petitioner’s parental rights.

Pe titioner reiterates his argument that the circuit court erred in not allowing him an opportunity to remediate the issues that led to the removal of his children through a post

- adjudicatory improvement period. We disagree. West Virginia Code § 49

- 4

- 604 (b)(6) provides that circuit courts are to terminate parental rights upon findings that there is “no reasonable likelihood that the

condi tions of neglect or abuse can be substantially corrected in the near future” and that

termination is nec essary for the children’s welfare. Further, 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 when5

[t]he abusing parent . . . [ has] not responded to or followed through with a reasonable family case plan or other rehabilitative efforts of social, medical, mental health, or other rehabilitative agencies designed to reduce or prevent the abuse or neglect of the child, as evidenced by the continuation or insubstantial diminution

of conditions which threatened the healt h, welfare, or life of the child [.]

Th e evidence discussed above supports the termination of petitione r’s parental rights

, as he failed to seek drug treatment, accept responsibility for his substance abuse issues, or comply with drug screening s and supervised visitations . Based on this evidence, there was no reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near future. Additionally, due to petitioner’s lack of participation with supervised visitation with the children, it is clear that the termination of his parental rights was in the children’s best interest. Further,

termination of hi s parental rights was nece ssary to establish permanency for the children. Therefore, the circuit court did not err in terminating petitioner’s parental rights.

For the foregoing reasons, we find no error in the decision of the circuit court, and its April 26, 2019 , order is hereby affirmed.

Affirmed.

ISSUED : February 7, 2020

CONCURRED IN BY :

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

DISQUALIFIED:

Justice John A. Hutchison