STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In Re: I.W. November 24, 2014 

RORY L. PERRY II, CLERK 

No. 14-0513 (Fayette County 13-JA-84) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father, by counsel Nancy S. Fraley, appeals the April 30, 2014, order of the 

Circuit Court of Fayette County that terminated his parental rights to twenty-month-old I.W. The 

child’s guardian ad litem, Thomas A. Rist, filed a response on behalf of the child in support of 

the circuit court’s order. The Department of Health and Human Resources (“DHHR”), by its 

counsel Katherine M. Bond, also filed a response in support of the circuit court’s order. On 

appeal, petitioner argues that the circuit court erred in (1) revoking his post-adjudicatory 

improvement period at a hearing in which it declined to transport petitioner from the Southern 

Regional Jail; (2) denying his motion for a continuance and proceeding with the dispositional 

hearing on April 14, 2014; and (3) terminating his parental rights based on findings that his 

testimony was insufficient and not credible. 

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 August of 2013, the DHHR filed an abuse and neglect petition against the child’s 

parents. The petition alleged that petitioner abused drugs and the parents engaged in domestic 

violence in front of the child. The petition alleged that the child was present when petitioner held 

the child’s mother down to the floor and kicked, choked, and punched her. The petition further 

alleged that petitioner reported that Child Protective Services (“CPS”) “could just have I.W. 

because he was tired of dealing with CPS.” Both parents waived their rights to a preliminary 

hearing. Following the hearing, petitioner tested positive for cocaine, opiates, and marijuana. 

In September of 2013, the circuit court granted both parents post-adjudicatory 

improvement periods. The circuit court ordered the parents to maintain a clean and safe home 

environment, abide by state and federal laws, participate in DHHR services such as adult life 

skills classes and marriage counseling, submit to random drug screens, maintain employment, 

and submit to psychological evaluations and follow subsequent recommendations. The circuit 

court also ordered petitioner to participate in the Batterers’ Intervention and Prevention Program. 

After the circuit court granted petitioner this improvement period, he tested positive for cocaine 

and opiates. 

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In December of 2013, the DHHR filed a motion to revoke petitioner’s improvement 

period based on his non-participation in services and his recent criminal charges of forgery, 

uttering, assault, and unlawful restraint. As a result of these charges, petitioner was in jail for the 

remainder of the abuse and neglect proceedings. In January of 2014, the circuit court revoked 

petitioner’s improvement period and scheduled the final dispositional hearing for April 14, 2014. 

At the final dispositional hearing, petitioner’s CPS worker and service provider both testified that 

petitioner failed to participate in any of his ordered services, aside from submitting to two drug 

screens that yielded positive results for drugs. Both also testified that petitioner failed to keep in 

contact with them. Petitioner testified that he attempted to maintain contact with them both and 

that there was never any domestic violence in the home. 

Following this hearing, the circuit court entered a dispositional order in which the circuit 

court found that petitioner’s testimony lacked credibility, that he was unwilling to provide 

adequately for his child’s needs, and that he blamed everybody else in the case except himself. 

The circuit court decided that, based on these findings, there was no reasonable likelihood that 

the conditions contained in the petition could be substantially corrected in the near future and 

ruled that termination was necessary for the child’s welfare and best interests. Petitioner now 

appeals to this Court. 

This 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). 

Upon our review of the record, we find no error by the circuit court in revoking 

petitioner’s post-adjudicatory improvement period, denying his attorney’s motion for a 

continuance at the dispositional hearing, and terminating his parental rights. Petitioner argues 

that the circuit court erred in revoking his improvement period because it also declined to 

transport him from the Southern Regional Jail for the hearing. West Virginia Code § 49-6-12(d) 

states, in part, that “[w]hen any improvement period is granted to a respondent [parent] pursuant 

to the provisions of this section, the respondent [parent] shall be responsible for the initiation and 

completion of all terms of the improvement period.” Further, West Virginia Code § 49-6-12(f) 

directs as follows: 

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When any respondent [parent] is granted an improvement period pursuant to the 

provisions of this article, the department shall monitor the progress of such person 

in the improvement period. When the respondent [parent] fails to participate in 

any service mandated by the improvement period, the state department shall 

initiate action to inform the court of that failure. When the department 

demonstrates that the respondent [parent] has failed to participate in any provision 

of the improvement period, the court shall forthwith terminate the improvement 

period. 

Petitioner isolates the fact that he was not transported to the hearing and unable to present 

evidence at this hearing. However, it is clear from the record that the DHHR demonstrated 

petitioner’s failure to participate in his improvement period. The record shows that petitioner 

failed to participate in any of his required services, except for two drug screens at which he 

tested positive for drugs, or keep contact with his service providers. Accordingly, we find no 

error. 

Our review of the record also shows no error by the circuit court at the dispositional 

hearing in denying petitioner’s motion for a continuance or in terminating petitioner’s parental 

rights to I.W. We have held the following: “Child abuse and neglect cases must be recognized as 

being among the highest priority for the courts’ attention. Unjustified procedural delays wreak 

havoc on a child’s development, stability and security.” Syl. Pt. 1, in part, In the Interest of 

Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991). “[I]n the context of abuse and neglect 

proceedings, the circuit court is the entity charged with weighing the credibility of witnesses and 

rendering findings of fact.” In re Emily, 208 W.Va. 325, 339, 540 S.E.2d 542, 556 (2000) (citing 

Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478, 525 S.E.2d 669 (1999)). We also bear in mind 

the following: 

“[C]ourts are not required to exhaust every speculative possibility of 

parental improvement . . . where it appears that the welfare of the child will be 

seriously threatened, and this is particularly applicable to children under the age 

of three years who are more susceptible to illness, need consistent close 

interaction with fully committed adults, and are likely to have their emotional and 

physical development retarded by numerous placements.” Syl. Pt. 1, in part, In 

Re: R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980). 

Syl. Pt. 4, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). 

Under West Virginia Code § 49-6-5(b)(3), a subject parent’s failure to follow through 

with rehabilitative efforts to reduce or prevent the abuse and neglect of the children constitutes 

circumstances in which there is no reasonable likelihood that the conditions of abuse or neglect 

can be substantially corrected. The record shows that petitioner’s counsel was given ample time 

to prepare for the dispositional hearing as notice for this hearing was provided months ahead. 

Moreover, petitioner’s failure to follow through with the terms and conditions of his 

improvement period supports the circuit court’s findings that there was no reasonable likelihood 

that the abuse and neglect conditions could be substantially corrected in the near future and that 

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termination of petitioner’s parental rights was in I.W.’s best interests. Pursuant to West Virginia 

Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon such findings. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: November 24, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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