STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In re: A.M. May 23, 2016 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS No. 16-0110 (Nicholas County 15-JA-75) OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father J.M., by counsel Gregory W. Sproles, appeals the Circuit Court of 

Nicholas County’s January 6, 2016, order terminating his parental rights to A.M. The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed 

its response in support of the circuit court’s order. The guardian ad litem, Julia R. Callaghan, 

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

petitioner alleges that the circuit court erred in finding that he had not substantially corrected the 

conditions of abuse and neglect from a prior involuntary termination of his parental rights to 

older children and 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 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 2015, the DHHR filed an abuse and neglect petition against the parents. As 

to petitioner, the DHHR alleged that he previously had his parental rights to five older children 

involuntarily terminated upon allegations of drug abuse.1 The petition further alleged that the 

mother gave birth to A.M. in August of 2015, and tested positive for multiple controlled 

substances on several occasions during the pregnancy. Additionally, the child tested positive for 

benzodiazepines upon her birth. As such, the DHHR alleged that the parents failed to correct the 

conditions of abuse and neglect present in the prior proceeding. That same month, the parents 

waived their right to a preliminary hearing. The DHHR later filed an amended petition and 

alleged that the prior involuntary termination of parental rights was also based on the conditions 

of the home. The DHHR further alleged that the inappropriate conditions in the home persisted. 

Finally, the DHHR alleged that since the initial petition’s filing, petitioner tested positive on drug 

screens, but he claimed that he had a prescription for Subutex from a clinic in Pittsburgh, 

Pennsylvania. 

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Petitioner appealed the dispositional order terminating his parental rights to these older 

children, and this Court affirmed the same. See In re: Z.M., A.M., D.R., T.M., & J.B., No. 14­

0283, 2014 WL 4799387 (W.Va. Sept. 22, 2014)(memorandum decision). 

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In September of 2015, the circuit court held an adjudicatory hearing, during which 

petitioner admitted to using opiates, including Subutex, which he paid $250 per month to obtain 

and made no efforts to wean off of the drug. Additionally, the circuit court found that petitioner 

refused inpatient substance abuse treatment as recently as August of 2015. Accordingly, the 

circuit court found that petitioner was still addicted to controlled substances. Moreover, a Child 

Protective Services (“CPS”) worker testified about poor conditions in the home, leading the 

circuit court to find that petitioner could not provide the child with a safe and suitable home. 

Ultimately, the circuit court found that the conditions of abuse and neglect that existed in the 

prior proceeding continued unabated. 

The circuit court held a dispositional hearing in December of 2015. Despite petitioner’s 

presence in the courtroom prior to the hearing, he left before the hearing began and did not 

return. He was, however, represented by counsel. After taking evidence, the circuit court found 

that petitioner failed to provide the DHHR with documentation showing the treatment he claimed 

to be receiving at a Subutex clinic and that the parents spent approximately $600 on the drug per 

month, despite a lack of income. Moreover, the circuit court found that the DHHR arranged for 

inpatient treatment, but petitioner refused to submit for such treatment. Additionally, the circuit 

court found that despite certain attempts at remediation, the home remained unsuitable due to 

mold, water, and other hazardous materials entering the living areas. As such, the circuit court 

found there was no reasonable likelihood the conditions of abuse and neglect could be 

substantially corrected and that termination of parental rights was in the child’s best interest. 

Ultimately, the circuit court terminated petitioner’s parental rights. It is from the 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). Upon our review, the Court finds 

no error in the proceedings below. We have previously held that 

[w]here there has been a prior involuntary termination of parental rights to a 

sibling, the issue of whether the parent has remedied the problems which led to 

the prior involuntary termination sufficient to parent a subsequently-born child 

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must, at minimum, be reviewed by a court, and such review should be initiated on 

a petition pursuant to the provisions governing the procedure in cases of child 

neglect or abuse set forth in West Virginia Code §§ [49-1-101 through 49-7-304]. 

Although the requirement that such a petition be filed does not mandate 

termination in all circumstances, the legislature has reduced the minimum 

threshold of evidence necessary for termination where one of the factors outlined 

in West Virginia Code § [49-4-605(a)] is present. 

In re Kyiah P., 213 W.Va. 424, 427, 582 S.E.2d 871, 874 (2003) (quoting Syl. Pt. 2, In the 

Matter of George Glen B., 205 W.Va. 435, 518 S.E.2d 863 (1999)). While petitioner argues that 

he corrected the conditions of abuse and neglect present in the prior proceeding, the Court does 

not agree. Specifically, petitioner argues that his addiction to controlled substances was corrected 

by his enrollment in a Subutex clinic and further participation in Narcotics Anonymous 

meetings. However, there is no evidence in the record, beyond petitioner’s own self-serving 

testimony, that he was participating in any such program. In fact, the circuit court specifically 

found that petitioner “failed to provide documentation to the . . . DHHR showing the treatment 

[he] claimed to have been receiving at the Subutex clinic.” Moreover, the circuit court further 

found that the DHHR arranged for inpatient treatment for petitioner, but he refused to submit to 

the same. Based upon this evidence, the circuit court specifically found that petitioner was still 

habitually addicted to controlled substances to the extent that his parenting skills were seriously 

impaired, one of the same conditions of abuse and neglect that served as the basis for the prior 

involuntary termination of his parental rights to older children. 

Moreover, the circuit court also found that certain remediation efforts in the home “still 

[did] not prevent water, mold, bugs and other health hazards from entering into the living areas.” 

As such, the circuit court found that the home was not suitable for the child, another condition of 

abuse and neglect upon which petitioner’s prior involuntary termination of parental rights was 

based. While petitioner argues that one parenting provider indicated that there were no safety 

issues in the home, petitioner’s argument ignores additional evidence that mold permeated the 

home and that it lacked working lights in all but two rooms, among other unsuitable conditions. 

As such, it is clear that the circuit court had sufficient evidence upon which to find that petitioner 

failed to correct the prior conditions of abuse and neglect. We find no error in this regard. 

Finally, petitioner argues that the circuit court erred in denying his motion for a postadjudicatory improvement period. Citing In re Kyiah P., petitioner argues that he was entitled to 

an improvement period because the circuit court was required to allow for the development of 

evidence regarding his prior involuntary termination of parental rights. The Court, however, 

notes that petitioner’s reliance on this case is misplaced. The circuit court complied with our 

prior holding in that it allowed for petitioner to develop evidence regarding what steps, if any, he 

took to correct the conditions of abuse and neglect from the prior proceeding. Contrary to 

petitioner’s argument, our prior holding in In re Kyiah P., does not impose a requirement to grant 

a parent an improvement period when an abuse and neglect petition is filed upon allegations of 

prior involuntary terminations of parental rights. 

Further, petitioner additionally misstates the applicable law regarding the granting of 

improvement periods by arguing that “the [c]ircuit [c]ourt did not clearly enunciate that clear and 

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convincing proof had been presented which proved that an improvement period would be 

pointless.” The correct standard for the granting of a post-adjudicatory improvement period is 

found in West Virginia Code § 49-4-610(2)(B), which clearly states that a parent seeking such an 

improvement period must “demonstrate[], by clear and convincing evidence, that the [parent] is 

likely to fully participate in the improvement period.” In this matter, the evidence shows that 

petitioner failed to satisfy this burden. Specifically, the circuit court found that petitioner has “a 

history of participating minimally, but not fully in services.” Moreover, the circuit court 

additionally found that petitioner’s failure to appear for disposition evidenced his “willful 

fail[ure] to comply in formulating a reasonable family case plan.” As such, it is clear that the 

circuit court had sufficient evidence upon which to find that petitioner was not likely to fully 

participate in a post-adjudicatory improvement period, and we find no error in its denial of the 

same. 

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

January 6, 2016, order is hereby affirmed. 

Affirmed. 

ISSUED: May 23, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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