In re C.G.-1

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

FILED
In re C.G.-1
September 13, 2019
EDYTHE NASH GAISER, CLERK
No. 19-0180 (Logan County 18-JA-11-B) SUPREME COURT OF APPEALS
OF WEST VIRGINIA

MEMORANDUM DECISION

Petitioner Father C.G.-2, by counsel Mark Hobbs, appeals the Circuit Court of Logan
County’s January 15, 2019, order terminating his parental rights to C.G.-2.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a response
in support of the circuit court’s order. The guardian ad litem (“guardian”), Rebecca E. Mick,
filed a response on behalf of the child also in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in terminating his parental rights without first
employing less-restrictive alternatives and when the DHHR failed to make reasonable efforts to
preserve the family.

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 February of 2018, the DHHR filed a child abuse and neglect petition against petitioner
and the mother. According to the petition, the mother tested positive for drugs throughout her
pregnancy and, upon giving birth to the child, tested positive for Neurontin. The child was
reported to be experiencing withdrawal symptoms. The DHHR alleged that petitioner knew of
the mother’s substance abuse during the pregnancy and engaged in substance abuse with her.
Family of the parents indicated that petitioner had a substantial substance abuse problem and

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). Additionally, because the child and petitioner share
the same initials, we will refer to them as C.G.-1 and C.G.-2, respectively, throughout this
memorandum decision.

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“will do any type of drugs that [he] can get [his] hands on and also use[s] needles.” Petitioner
waived his preliminary hearing.

Petitioner stipulated to having a substance abuse addiction that impaired his ability to
properly parent the child and requested a post-adjudicatory improvement period in April of 2018.
The circuit court accepted petitioner’s stipulation, adjudicated him as an abusing parent, and
granted his request for a post-adjudicatory improvement period. As part of the terms and
conditions of his improvement period, petitioner was ordered to (1) comply with the terms of his
medically assisted treatment program, (2) submit to drug screens and pill/strip counts, (3)
participate in in-home services such as parenting and adult life skills classes, (4) maintain contact
with his counsel and the DHHR on a weekly basis, and (5) submit to a psychological evaluation
and comply with the recommendations of the report.

Petitioner submitted to a psychological evaluation and the report was distributed in June
of 2018. The evaluating psychologist opined that petitioner failed to acknowledge responsibility
for the conditions of abuse that led to the filing of the petition and gave a pattern of responses to
the assessments that suggested that he believed himself to be “exceptionally free of common
short comings to which most individuals will admit.” The psychologist concluded that
petitioner’s likelihood of attaining minimally adequate parenting was poor given his “history of
drug use, his lack of acknowledgement of responsibility in the referral incidents, his apparent
lack of veracity concerning recent drug use, his unstable employment history, and his
defensiveness during the evaluation.” Over the course of the next few months, the circuit court
held several review hearings regarding petitioner’s post-adjudicatory improvement period. The
DHHR advised that petitioner was not successfully complying with the terms and conditions of
his improvement period and, due to his noncompliance, had not consistently visited with the
child. Eventually, the circuit court terminated petitioner’s post-adjudicatory improvement period.

The final dispositional hearing was held in January of 2019. Petitioner failed to attend but
was represented by counsel. Petitioner’s counsel requested a continuance, which the circuit court
denied. The DHHR presented the testimony of a Child Protective Services (“CPS”) worker who
reported that petitioner had not complied with his post-adjudicatory improvement period.
Specifically, the worker testified that, although petitioner initially participated in treatment
through a Suboxone clinic, he ceased attending the treatment program. Petitioner failed to
present a valid prescription for Suboxone for several months and had never submitted to a strip
count of his Suboxone. Further, petitioner failed to consistently submit to drug screens, which
meant that his supervised visits with the child were terminated. Petitioner tested positive for
drugs on the few occasions that he did submit to screens and failed to complete his parenting and
adult life skills classes, maintain suitable housing, and gain employment.

After hearing evidence, the circuit court found that, despite the DHHR having made
reasonable efforts to reunify the family, petitioner failed to take advantage of the services
provided. Based upon petitioner’s noncompliance throughout the entirety of the proceedings, the
circuit court found that there was no reasonable likelihood that petitioner could correct the
conditions of neglect in the near future and that termination of his parental rights was in the

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child’s best interest. It is from the January 15, 2019, dispositional order terminating his parental
rights that petitioner appeals.2

The Court has previously established the following standard of review in cases such as
this:

“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).

On appeal, petitioner argues that the circuit court erred in terminating his parental rights.
According to petitioner, he was “the victim of rash judgment,” and the circuit court “simply
proceeded to terminate [his] parental rights . . . too quickly.” Petitioner avers that he initially
complied with the terms and conditions of his improvement period and that the circuit court
should have considered a less-restrictive alternative to termination of his parental rights, such as
a post-dispositional improvement period. Petitioner also argues that the circuit court erred in
finding that the DHHR made reasonable efforts to preserve the family, and contends that the
DHHR should have provided him more assistance with housing, poverty, and addiction issues.3
We disagree.
2
The mother’s parental rights were also terminated below. The child was placed in a
foster home with a permanency plan of adoption therein.
3
As part of his argument, petitioner contends that the current time frames for
improvement periods make it impossible for drug-addicted parents to achieve sobriety and regain
custody of their children. He avers that this Court should carefully consider “reshaping the
current practice to address the issue of parental drug use.”

Regarding improvement periods, this Court has noted that “[i]mprovement periods are . .
. regulated, both in their allowance and in their duration, by the West Virginia Legislature, which
has assumed the responsibility of implementing guidelines for child abuse and neglect
proceedings generally.” In re Emily, 208 W. Va. 325, 334, 540 S.E.2d 542, 551 (2000). We have
noted that the requirements set forth in West Virginia Code § 49-4-610

(continued . . .)
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 Contrary to petitioner’s argument, the record establishes that the DHHR did, in fact,
make reasonable efforts. The DHHR provided petitioner with several services throughout his
post-adjudicatory improvement period including random drug screens, assistance with drug
treatment programs, parenting and adult life skills classes, assistance with transportation, a
psychological evaluation, and supervised visitation. While petitioner alleges that the DHHR
failed to adequately assist him with housing and substance abuse issues, we note that West
Virginia Code § 49-4-610(4)(A) explicitly provides that “the [parent] shall be responsible for the
initiation and completion of all terms of the improvement period.” It is clear that the DHHR
offered its assistance in helping petitioner achieve these goals, but he failed to maintain contact
with the DHHR or request additional assistance. In fact, as of the dispositional hearing, the CPS
caseworker testified that she had not heard from petitioner since before August of 2018.
Accordingly, we find no merit in petitioner’s argument that the DHHR did not make reasonable
efforts to preserve the family.

are not mere guidelines. . . . The time limitations and standards contained therein
are mandatory and may not be casually disregarded or enlarged without detailed
findings demonstrating exercise of clear-cut statutory authority. Discretion
granted to the circuit court within this framework is intended to allow the court to
fashion appropriate measures and remedies to highly complex familial and inter-
personal issues—it does not serve as a blanket of immunity for the circuit court to
manage abuse and neglect cases as its whim, personal desire, or docket may
fancy.

J.G., 240 W. Va. at 204, 809 S.E.2d at 463. Further, we have previously held that “[a]lthough
parents have substantial rights that must be protected, the primary goal in cases involving abuse
and neglect, as in all family law matters, must be the health and welfare of the children.” Syl. Pt.
6, In re J.G., 240 W. Va. 194, 809 S.E.2d 543 (2018) (quoting syl. pt. 3, In re Katie S., 198 W.
Va. 79, 479 S.E.2d 589 (1996)). “Critically, ‘[a] parent’s rights are necessarily limited . . . [as to
improvement periods] because the pre-eminent concern in abuse and neglect proceedings is the
best interest of the child subject thereto.’” Id. (quoting Emily, 208 W. Va. at 336, 540 S.E.2d at
553). Finally,

the statutory limits on improvement periods (as well as our case law limiting the
right to improvement periods) dictate that there comes a time for decision,
because a child deserves resolution and permanency in his or her life, and because
part of that permanency must include at minimum a right to rely on his or her
caretakers to be there to provide the basic nurturance of life.

State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 260, 470 S.E.2d 205, 214 (1996). While
petitioner argues that parents addicted to drugs need more time than the length of time prescribed
by statute, our case law makes it abundantly clear that a parent’s opportunity to continue to
participate in an improvement period is not upheld to the detriment of the children. Accordingly,
we find no error in this regard.

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 We further find no merit in petitioner’s argument that the circuit court should have
granted him a less-restrictive disposition such as a post-dispositional improvement period.
Pursuant to West Virginia Code § 49-4-610(3)(D), a circuit court may grant a post-dispositional
improvement period when,

[s]ince the initiation of the proceeding, the [parent] has not previously been
granted any improvement period or the [parent] demonstrates that since the initial
improvement period, the [parent] has experienced a substantial change in
circumstances. Further, the [parent] shall demonstrate that due to that change in
circumstances, the [parent] is likely to fully participate in the improvement
period.

Here, petitioner was granted a six-month post-adjudicatory improvement period. As such,
in order to be granted a post-dispositional improvement period, he was required to demonstrate a
substantial change in circumstances in addition to his likelihood of fully participating in an
improvement period. However, in his brief on appeal, petitioner does not indicate where in the
record he established any substantial change in his circumstances. Moreover, he fails to
demonstrate that he was likely to fully participate in an improvement period. As noted above, the
DHHR provided petitioner with numerous services including parenting and adult life skills
classes, assistance with drug treatment programs, supervised visitation, drug screens, and a
psychological evaluation. While petitioner submitted to the psychological evaluation, he did not
comply with any of the resulting recommendations. Petitioner failed to attend his parenting and
adult life skills classes, and left his Suboxone clinic and did not pursue any alternative treatment
programs. He also tested positive for controlled substances on multiple occasions and, thus, was
prohibited from visiting with his child. “We have previously pointed out that the level of interest
demonstrated by a parent in visiting his or her children while they are out of the parent’s custody
is a significant factor 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) (citing Tiffany Marie S., 196 W. Va. at 228 and 237, 470 S.E.2d at 182 and 191;
State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 259, 470 S.E.2d 205, 213 (1996)). Based upon
petitioner’s complete lack of compliance with the terms of his post-adjudicatory improvement
period, we find no error in the circuit court’s denial of petitioner’s request for a post-
dispositional improvement period.

Lastly, we find no error in the circuit court’s decision to terminate petitioner’s parental
rights. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate
parental rights upon findings that there is “no reasonable likelihood that the conditions of neglect
or abuse can be substantially corrected in the near future” and that termination is necessary for
the child’s welfare. West Virginia Code § 49-4-604(c)(3) sets forth a situation in which “[n]o
reasonable likelihood that [the] conditions of neglect or abuse can be substantially corrected,”
including when

[t]he abusing parent . . . ha[s] 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

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 abuse or neglect of the child, as evidenced by the continuation or insubstantial
diminution of conditions which threatened the health, welfare, or life of the child.

The evidence set forth above also supports the circuit court’s finding that there was no
reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near
future. Petitioner failed to respond to or follow through with any rehabilitative efforts offered
during the proceedings below. He failed to participate in parenting and adult life skills classes,
failed to consistently submit to drug screens, tested positive for substances when he did submit to
screens, failed to comply with any form of drug treatment, and failed to visit the child.

While petitioner argues that termination of his parental rights was not in the child’s best
interests, the guardian states that petitioner has no bond with his child. Indeed, petitioner’s
failure to comply with the terms of his improvement period prohibited him from visiting the
child, resulting in the child’s complete lack of bond with petitioner. The child has a strong bond
with her foster parents and is in need of permanency and stability. We have previously held that

“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [West Virginia
Code § 49-4-604] may be employed without the use of intervening less restrictive
alternatives when it is found that there is no reasonable likelihood under [West
Virginia Code § 49-4-604(c)] that conditions of neglect or abuse can be
substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266
S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Given petitioner’s failure to
address the conditions of abuse and neglect, we find no error in the circuit court’s finding that
there was no reasonable likelihood that the conditions of abuse and/or neglect could be
substantially corrected in the near future and that termination was necessary for the child’s
welfare. Therefore, we find no error in the termination of petitioner’s parental rights.

For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 15, 2019, order is hereby affirmed.

Affirmed.

ISSUED: September 13, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison

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