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In re C.W.

Supreme Court of West Virginia

December 1, 2017

In re: C.W., R.W., N.W., and H.W.

         Randolph County 2016-JA-076, 2016-JA-077, 2016-JA-078, & 2016-JA-081

          MEMORANDUM DECISION

         Petitioner Father R.W., by counsel Melissa T. Roman, appeals the Circuit Court of Randolph County's July 18, 2017, order terminating his parental rights to C.W., R.W., N.W., and H.W.[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"), G. Phillip Davis, 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-adjudicatory improvement period and denying him post-termination visitation with the children.[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 August of 2016, the DHHR filed an abuse and neglect petition against the parents that alleged they were homeless after losing their rented residence due to failure to pay rent and damage to the home. According to the petition, due to the parents' homelessness, they sometimes left the children with unsafe individuals they barely knew. The petition also alleged that the parents' drug abuse affected their ability to provide the children with a stable home, food, clothing, and other necessities.

         In November of 2016, the circuit court held an adjudicatory hearing during which it found that the DHHR failed to meet its burden in establishing the parents' abuse by way of substance abuse. However, the circuit court found sufficient evidence upon which to adjudicate the parents for failing to provide the children with appropriate shelter, food, and clothing.

         In February of 2017, the DHHR filed an amended petition following one child's disclosure that she witnessed the parents abuse drugs, including smoking marijuana and snorting pills. The amended petition also included an allegation that the parents evaded court-ordered drug screens. In April of 2017, the circuit court held an adjudicatory hearing on the amended petition and found that the evidence established that the parents' substance abuse impaired their parenting abilities. Thereafter, the parents moved for post-adjudicatory improvement periods.

         In June of 2017, the circuit court held a dispositional hearing, during which it heard evidence that petitioner evaded drug screens, tested positive for methamphetamine and marijuana when he did screen, and was dishonest with service providers. Additionally, two service providers testified that neither parent admitted to any parenting deficiencies or substance abuse issues. Moreover, a Child Protective Services ("CPS") worker testified to the parents' involvement in a 2009 abuse and neglect proceeding and services rendered over several years during CPS intervention subsequent to multiple investigations. According to this worker, the parents were adjudicated upon issues of substance abuse in the 2009 proceedings, which included their inability to properly provide suitable housing for the children. Finally, a service provider and foster parents testified to the children's concerning behaviors following visits with the parents. Ultimately, the circuit court found that the parents' failure to acknowledge the conditions of abuse and neglect and their inability to correct them, despite years of services, established that they were not entitled to improvement periods. The circuit court also found that there was no reasonable likelihood the parents could substantially correct the conditions of abuse and neglect and that termination of their parental rights was in the children's best interest. Accordingly, the circuit court terminated petitioner's parental rights to the children and denied him post-termination visitation.[3] 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.

         According to petitioner, the circuit court erred in denying his request for a post-adjudicatory improvement period because the testimony established he would successfully complete the same. Specifically, petitioner cites to testimony from multiple witnesses that showed he had a strong bond with the children and that he could correct the conditions of abuse and neglect in the home. Further, petitioner testified that, at the time of the dispositional hearing, he was employed, took steps to apply for housing assistance, and took responsibility for his substance abuse and parenting deficiencies. The Court, however, does not find these arguments persuasive.

          Contrary to petitioner's assertions, the circuit court specifically found that "[t]he testimony provided is that the parents have been, at best, inconsistent in visitation." This included a lack of visitation from August of 2016 until December of 2016, at which point continued problems arose when visitation did occur, including issues with the parents' inability to follow the rules set for visits. Moreover, the circuit court specifically found that "[t]here has been no acknowledgement of any problem by the [parents] in this case." While the circuit court did note that petitioner, "for the first time, . . . testified today that he has a substance abuse problem, " it went on to find that petitioner had not "made any efforts to seek out substance abuse treatment during the pendency of this action." Further, the circuit court found that petitioner failed to acknowledge his substance abuse issues even as he repeatedly tested positive for drugs.

         In order to obtain a post-adjudicatory improvement period, West Virginia Code § 49-4-610(2)(B) requires the parent to "demonstrate[], by clear and convincing evidence, that the [parent] is likely to fully participate in the improvement period[.]" While it is true that petitioner testified to his willingness to participate in the terms and conditions of a post-adjudicatory improvement period, the overwhelming evidence supported the circuit court's finding that petitioner failed to satisfy the necessary burden. This is especially true in light of petitioner's failure to fully acknowledge the conditions of abuse and neglect in the home. We have held that

[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 ...

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