Barbour
County 16-JA-32 & 16-JA-33
MEMORANDUM DECISION
Petitioner
Father C.M., by counsel Gregory Michael, appeals the Circuit
Court of Barbour County's May 25, 2017, order terminating
his parental rights to K.M.-2 and K.M-3.[1]The West Virginia
Department of Health and Human Resources ("DHHR"),
by counsel Chaelyn W. Casteel, filed a response in support of
the circuit court's order. The guardian ad litem
("guardian"), Mary S. Nelson, filed a response on
behalf of the children also in support of the circuit
court's order. On appeal, petitioner argues that the
circuit court erred in denying his motion for an improvement
period.[2]
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 June
of 2016, the DHHR filed an abuse and neglect petition against
petitioner and his wife, K.M.-3's biological mother,
alleging that the parties cared for the children, K.M.-1,
K.M.-2, and K.M.-3, while under the influence of illegal
drugs, including methamphetamine.[3] The petition also alleged
that petitioner abused substances, that the parties engaged
in domestic violence in the children's presence, and that
petitioner was the perpetrator of "extreme domestic
violence" against the mother. On June 8, 2016, the
circuit court held a preliminary hearing wherein petitioner
admitted to a history of substance abuse and domestic
violence. The circuit court ordered that petitioner submit to
random drug screening.
In
August of 2016, the circuit court held an adjudicatory
hearing wherein petitioner again stipulated to his history of
substance abuse and to an abusive relationship with the
mother. Petitioner initially denied being convicted of
domestic battery, but ultimately admitted that the mother
obtained a domestic violence protective order against him and
to a domestic violence domestic battery conviction. He also
admitted that he abused methamphetamines, but stated that he
"lied when he told the [DHHR] that he made
methamphetamines behind the house." Based on his
admission, the circuit court adjudicated petitioner as an
abusive parent. The circuit court also found that
"violence seems to be a way of life in this case . . .,
" and that petitioner "had not been forthcoming or
truthful." Petitioner filed a motion for a
post-adjudicatory improvement period on August 8, 2016, which
the circuit court took under advisement. In October of 2016,
the children were interviewed at the Child Advocacy Center
and they disclosed that domestic violence and drug abuse
frequently occurred in the home. The children's
disclosures included specific instances that petitioner and
the mother had denied, including an incident in which
petitioner punched the mother in the face.
In
January of 2017, the circuit court held a dispositional
hearing and addressed petitioner's motion for a
post-adjudicatory improvement period. On the same day,
petitioner also filed a motion for a dispositional
improvement period. At the hearing, a DHHR caseworker
testified that petitioner demonstrates explosive behavior and
intimidates people, including the caseworker. She stated that
at a multidisciplinary team ("MDT") meeting in
December of 2016, petitioner left the meeting in anger and
slammed the door on his way out. The MDT determined that it
would be best if petitioner did not return to the meeting due
to his explosive outburst. The caseworker also testified that
petitioner "[banged] on the door of the lobby of the
office . . . trying to pull the door open to return to the
meeting."
Also,
at the hearing, petitioner admitted to drug abuse and
domestic violence, but minimized the extent of domestic
violence in the home and stated that he only "hit [the
mother] once or twice." He also denied that domestic
violence occurred in front of the children, despite their
previous disclosures to the contrary. He also admitted that
he called K.M.-2 "a liar" for disclosing the
domestic violence in the home. Petitioner further admitted
that his anger was "not totally under control" and
that MDT meetings were a "waste of time."
Petitioner also stated that he missed several random drug
screens because he had problems with his cellular telephone
service and transportation. Based on the evidence presented,
the circuit court found that petitioner had not provided
truthful testimony and had blamed the children for his abuse.
The circuit court also found that petitioner's dishonesty
made it impossible for the DHHR to provide him with services.
The circuit court denied petitioner's motions for an
improvement period and found that he failed to prove by clear
and convincing evidence that he would likely fully
participate in the same. The circuit court further found that
there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in
the near future, given that he had not been "open and
honest" and was not credible. By order entered on May
25, 2017, the circuit court denied petitioner's motions
for an improvement period and terminated his parental rights
to the children.[4]
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.
On
appeal, petitioner argues that the circuit court erred in
denying his motions for an improvement period. In support of
his argument, petitioner asserts that his stipulations to
drug abuse and domestic violence "should be [a]
sufficient reason to grant [him] an improvement period."
We disagree. In order to obtain an improvement period, West
Virginia Code § 49-4-610(2)(B) requires that the parent
"demonstrates, by clear and convincing evidence, that
[the parent] is likely to fully participate in an improvement
period . . . ." Further, 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").
Here,
petitioner failed to prove by clear and convincing evidence
that he was likely to substantially comply with the terms and
conditions of an improvement period. At the dispositional
hearing, petitioner minimized the extent of domestic violence
in the home and asserted that the children lied about the
domestic violence they witnessed. Petitioner failed to
acknowledge his responsibility for the abuse for which he was
later adjudicated. "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."
W.Va. Dep't of Health and Human Res. ex rel. Wright
v. Doris S., 197 W.Va. 489, 498475 S.E.2d 865, 874
(1996). Further, the circuit court found that petitioner was
not truthful with the court and his dishonesty made it
impossible for the DHHR to provide him with services.
Accordingly, because the evidence clearly indicated that
petitioner would not be likely to comply with the terms and
conditions of an improvement period, the circuit court did
not err in denying his requests for an improvement period.
For the
foregoing reasons, we find no error in the decision of the
circuit court, and its May 25, ...