In re A.F.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2021 Term FILED
_______________ November 18, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 20-0997 SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA

IN RE: A.F.

____________________________________________________________

Appeal from the Circuit Court of Nicholas County
The Honorable Stephen O. Callaghan, Judge
Civil Action No. 20-JA-46

AFFIRMED

____________________________________________________________

Submitted: October 5, 2021
Filed: November 18, 2021

M. Tyler Mason, Esq. Patrick Morrisey, Esq.
Leslie Legal, PLLC Attorney General
Dellslow, West Virginia Brittany N. Ryers-Hindbaugh, Esq.
Counsel for Petitioner Assistant Attorney General
Brandolyn N. Felton-Ernest, Esq.
Denise N. Pettijohn, Esq. Assistant Attorney General
The Pettijohn Law Group, L.C. Charleston, West Virginia
Lewisburg, West Virginia Counsel for Respondent
Guardian ad Litem for the Department of Health
Infant child, A.F. and Human Resources

JUSTICE ARMSTEAD delivered the Opinion of the Court.

JUSTICE WOOTON concurs in part and dissents in part and reserves the right to file a
separate Opinion.
 SYLLABUS BY THE COURT

1. “‘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 the 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).

2. “Termination . . . may be employed without the use of intervening less

restrictive alternatives when it is found that there is no reasonable likelihood . . . that

conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 7, in part, In re Katie

S., 198 W. Va. 79, 479 S.E.2d 589 (1996).

3. “Although 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. 3, In re Katie S., 198 W. Va. 79, 479 S.E.2d

589 (1996).

4. “When no factors and circumstances other than incarceration are

raised at a disposition hearing in a child abuse and neglect proceeding with regard to a

parent’s ability to remedy the condition of abuse and neglect in the near future, the circuit

court shall evaluate whether the best interests of a child are served by terminating the rights

of the biological parent in light of the evidence before it. This would necessarily include

but not be limited to consideration of the nature of the offense for which the parent is

incarcerated, the terms of the confinement, and the length of the incarceration in light of

the abused or neglected child’s best interests and paramount need for permanency, security,

stability and continuity.” Syl. Pt. 3, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).

5. “This Court may, on appeal, affirm the judgment of the lower court

when it appears that such judgment is correct on any legal ground disclosed by the record,

regardless of the ground, reason or theory assigned by the lower court as the basis for its

judgment.” Syl. Pt. 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965).

6. “[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 [delayed] by

numerous placements.” Syl. Pt. 1, in part, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114

(1980).
ARMSTEAD, Justice:

Petitioner Father, J.F. (“Petitioner”), appeals the circuit court’s November

20, 2020, disposition order terminating his parental rights to the infant child, A.F.1

Petitioner was incarcerated and awaiting trial on two felonies and numerous other charges

when the abuse and neglect petition was filed. The circuit court adjudicated Petitioner of

being abusive and neglectful because his incarceration rendered him unable to care for the

child and unable to protect the child from the substance of abuse of the child’s mother,

M.M. The main factor cited by the circuit court in its disposition order terminating

Petitioner’s parental rights was his incarceration. On appeal, Petitioner contends that the

circuit court erred in terminating his parental rights in lieu of granting him an improvement

period.

In In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011), this Court addressed

the factors that must be considered when incarceration is the basis for termination of

parental rights. While we find that the circuit court failed to conduct an appropriate Cecil

T. analysis, the appendix record is sufficient for this Court to conduct our own Cecil T.

review. Upon our review, we conclude that Petitioner’s parental rights should be

terminated. Therefore, we affirm the circuit court’s disposition order.

1
Consistent with our long-standing practice in cases with sensitive facts, we use
initials to identify the parties. See, e.g., State v. Edward Charles L., 183 W. Va. 641, 645
n.1, 398 S.E.2d 123, 127 n.1 (1990).

1
 I. FACTUAL AND PROCEDURAL BACKGROUND

The Department of Health and Human Resources (“DHHR”) filed an abuse

and neglect petition against Petitioner and M.M. in June of 2020. The DHHR alleged that

M.M. had overdosed while the child was in her care, and that she had tested positive for

methamphetamine, amphetamine, and fentanyl. The DHHR alleged that Petitioner Father

was unable to protect the child from M.M.’s drug use because he had been incarcerated

since November of 2019 and was awaiting trial on multiple charges. Petitioner’s charges

included two felonies: 1) felon in possession of a firearm; and 2) “escape or attempt to

escape from custody” which involved him allegedly tampering with his home confinement

bracelet. 2 Petitioner was unable to post bail and remained incarcerated throughout the

proceedings. He appeared at the circuit court hearings by video or teleconferencing.

During the adjudicatory hearing, M.M. stipulated that her substance abuse

negatively affected her ability to parent the child. She was adjudicated as an abusing parent

and was granted an improvement period. The circuit court found that Petitioner: 1) “was

incarcerated at the time of [the] filing of this petition and was unable to care for the child;”

2
According to the DHHR, Petitioner’s pending charges were: 1) escape or attempt
to escape from custody, a felony; 2) prohibited person in possession of a firearm, a felony;
3) unauthorized acts with regard to wildlife without license or permit; 4) spotlighting; 5)
hunting wildlife from a motorized vehicle; 6) hunting without written permission; 7) loaded
rifle in motor vehicle; 8) “hunt closed season;” 9) “uncased firearm thirty minutes after
sunset;” 10) shooting or discharging a firearm within five hundred feet of a dwelling; 11)
“conspiracy to violate West Virginia Code Chapter 20, withholding information,
obstructing officers;” and 12) waste of game animals.

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2) “is incarcerated; therefore, he does not have a safe and suitable home;” and 3) “is

incarcerated and is unable to protect the child from [M.M.’s] drug use.” Based on these

findings, the circuit court adjudicated Petitioner as an abusive and neglectful parent and

issued a no contact order between Petitioner and M.M.

Prior to the final disposition hearing, the child was in a severe car wreck and

had to be hospitalized. Upon learning about the car accident, Petitioner called M.M. and

asked about the child’s condition.

Petitioner’s disposition hearing occurred on November 13, 2020. 3 Petitioner

and a DHHR employee testified at this hearing. Petitioner pled the Fifth Amendment in

response to questions about the criminal charges he was facing. The State responded that

“the Court can make a negative inference from your failure to answer these questions[.]”

Further, Petitioner testified that prior to his current incarceration, he was unaware that M.

M. had any substance abuse problems and stated that, to his knowledge, her drug abuse

started after he was incarcerated. When asked if he would be capable of participating in

an improvement period by telephone, including parenting classes and visitation with the

child, Petitioner stated, “I’m sure I could arrange that.”

3
At that time, Petitioner had been moved to the Carter County Detention Center in
Kentucky. Petitioner’s brief to this Court notes that he had been moved to this facility by
“the Federal Authorities after he was indicted on Federal charges for prohibited person in
possession of a firearm and ammunition.”

3
 The State asked Petitioner about his prior criminal convictions. Petitioner

testified that he had prior convictions for manslaughter and arson, had been incarcerated

for those convictions, and was released in 2016. Regarding the phone call to M.M. after

the car accident, Petitioner stated that he learned that his child was involved in a car

accident but was unable to obtain the details from his friends and family. Therefore, he

called M.M. even though he knew that it was in violation of the circuit court’s no contact

order. 4

DHHR employee Rodney Blankenship testified that the DHHR was

recommending that the circuit court terminate Petitioner’s parental rights. He testified that

the DHHR was against granting Petitioner an improvement period due to Petitioner’s

incarceration and the uncertainty surrounding the duration of his incarceration. On cross-

examination, Mr. Blankenship testified that he did not know if parenting classes could be

provided over the phone or by video conference. He stated, “I don’t know what Carter

County, Kentucky [Detention Center] does.”

Following this testimony, counsel for each of the parties addressed the court.

Petitioner’s counsel noted that Petitioner was adjudicated on his failure to protect the child

from M.M.’s substance abuse. At the time this disposition hearing was held, M.M. was

Petitioner was also asked about the status of his rights to his other children. He
4

testified that he has a 16-year-old daughter with S.D., with whom he shares joint custody.
He stated that he had an additional child with A.J., and that this child had been adopted by
A.J.’s brother after Petitioner was incarcerated on the prior charges.

4
complying with the terms of her improvement period. Petitioner’s counsel asserted that if

M.M. continued to successfully address her substance abuse issues, the basis for

Petitioner’s adjudication—failure to protect the child from M.M.’s substance abuse—

would cease to exist. However, Petitioner’s counsel conceded that if M.M. “failed to

comply with her improvement period, if her rights were terminated, then frankly

[Petitioner’s] rights could be terminated right along with it.” Finally, Petitioner’s counsel

argued that incarceration alone, particularly pre-trial incarceration, was an insufficient

basis upon which to terminate Petitioner’s parental rights.

The circuit court terminated Petitioner Father’s parental rights and denied

Petitioner’s request for a post-adjudication improvement period based mainly on

Petitioner’s incarceration. The circuit court found: 1) Petitioner was unable to participate

in an improvement period due to his incarceration; 2) Petitioner had not seen the child since

he was incarcerated in 2019; 3) it would not be in the child’s best interest to delay

permanency by awaiting the uncertain results of Petitioner’s pending charges; 4) Petitioner

failed to protect the child from M.M.’s drug use; 5) Petitioner had not yet been tried, and

it was unknown if a trial date had been set; and 6) given the speculative nature of

Petitioner’s trial date and the duration of his incarceration, it was unlikely that he could

correct the conditions of abuse and neglect in the near future. 5 The circuit court also found

5
Additional factors cited by the circuit court include the following: the court drew
a negative inference from Petitioner’s refusal to answer several questions about his
(continued . . .)

5
that Petitioner had been incarcerated for much of the child’s life and “the child needs

continuity of care and caretakers, and a significant amount of time is required to be

integrated into a stable and permanent home environment.”

Based on the foregoing, the circuit court concluded that there was no

reasonable likelihood that Petitioner could correct the conditions of abuse and neglect and

that termination of Petitioner’s parental rights was necessary for the child’s welfare.

Following entry of the disposition order terminating his parental rights, Petitioner filed the

instant appeal.

II. STANDARD OF REVIEW

We apply 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 the

criminal charges; Petitioner was previously convicted of voluntary manslaughter, served
prison time, and was released in 2016; Petitioner has other children that he does not have
custody of; Petitioner assisted M.M. in violating the terms of her improvement period (the
no contact order); and Petitioner violated the no contact order by calling M.M.

6
 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. With this standard in mind, we

consider the parties’ arguments.

III. ANALYSIS

Petitioner argues that the circuit court committed “plain error when it failed

to grant [his] motion for a post-adjudicatory improvement period and terminated his

parental rights. . . . In practice, the success of his improvement period would inherently be

tethered to the success of [M.M.’s] improvement period.” In his brief to this Court,

Petitioner argued that as long as M.M. was successfully completing her improvement

period in an effort to have her parental rights restored, the child’s permanency would not

be delayed by keeping Petitioner’s parental rights intact. Further, Petitioner asserted that

the circuit court’s Cecil T. analysis was erroneous because it failed to give substantial

weight “to the fact that Petitioner has not yet been convicted of anything.”

The factual circumstances have significantly changed since the circuit court

entered its disposition order and since the parties filed their briefs. When the disposition

order was entered and when the parties filed their briefs, 1) Petitioner had not been

convicted of any of his current charges, 2) his incarceration term was uncertain, and 3)

M.M. was successfully participating in her improvement period and hoped to be reunified

7
with the child. In the parties’ Rule 11(j) 6 updates to this Court, it was revealed that 1)

Petitioner pled guilty to the federal felony charge of “felon in possession of firearm” and

that he was sentenced to an incarceration term of 78 months; 2) Petitioner was re-indicted

on the felony escape charge involving tampering with his home confinement bracelet; 7 and

3) M.M.’s parental rights were involuntarily terminated by the circuit court on September

16, 2021. 8 With this background in mind, we proceed to examine our law regarding the

impact of incarceration when considering whether to terminate a person’s parental rights,

the circuit court’s Cecil T. analysis, and our analysis in light of the new factual

developments that have occurred.

Pursuant to West Virginia Code § 49-4-604(c)(6) (2020), a circuit court is

directed to terminate parental rights upon a finding that there is no reasonable likelihood

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

and when necessary for the child’s welfare. “No reasonable likelihood that conditions of

neglect or abuse can be substantially corrected” is statutorily defined as “based upon the

6
Pursuant to Rule 11(j) of the West Virginia Rules of Appellate Procedure, “[t]he
parties shall provide a written statement of any change in the circumstances that were set
forth in the briefs within one week of any oral argument scheduled by the Court or within
such other time as may be specified by order.”
7
The escape charge had been dismissed without prejudice in February of 2021 by
an order “Granting State’s Motion to Nolle Prosequi.”

The child has been placed with her grandparents since the inception of this matter.
8

The permanency plan is adoption by the grandparents.

8
evidence before the court, the abusing adult or adults have demonstrated an inadequate

capacity to solve the problems of abuse or neglect on their own or with help.” W. Va. Code

§ 49-4-604(d). We have held that “[t]ermination . . . may be employed without the use of

intervening less restrictive alternatives when it is found that there is no reasonable

likelihood . . . that conditions of neglect or abuse can be substantially corrected.” Syl. Pt.

7, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996). We have also 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. 3, In re Katie S.

This Court has explained that termination of parental rights may be based on

incarceration after a court considers a number of factors. In Cecil T., the Court held:

When no factors and circumstances other than
incarceration are raised at a disposition hearing in a child abuse
and neglect proceeding with regard to a parent’s ability to
remedy the condition of abuse and neglect in the near future,
the circuit court shall evaluate whether the best interests of a
child are served by terminating the rights of the biological
parent in light of the evidence before it. This would necessarily
include but not be limited to consideration of the nature of the
offense for which the parent is incarcerated, the terms of the
confinement, and the length of the incarceration in light of the
abused or neglected child’s best interests and paramount need
for permanency, security, stability and continuity.

Syl. Pt. 3, 228 W. Va. 89, 717 S.E.2d 873.

Justice Workman addressed the Court’s holding in Cecil T. in a recent case

and emphasized that the nature of the offense is an important factor that a court must

consider when conducting a Cecil T. analysis:

9
 Unquestionably, a parent whose term of incarceration is
so lengthy that his children will be almost grown before the
father is released from prison is a critical consideration under
the statutory definition of neglect and is a permissible
consideration under In re Cecil T. Another consideration under
In re Cecil T. is the nature of the offense. Here the petitioner
committed murder, not a garden-variety, nonviolent crime,
obviously without considering the impact of his criminal
conduct on his children. His actions alone resulted in his
lengthy term of incarceration, which will preclude him from
meeting even his minimal parenting responsibilities.

In short, the Cecil T. factors, along with the statutory
definitions for “abandonment” and “neglect” in West Virginia
Code § 49-1-201, are all unquestioningly relevant to
determining whether the Department has established that the
parent is abusing or neglecting[.]

In Re A.P.-1, 241 W. Va. 688, 697, 827 S.E.2d 830, 839 (2019) (Workman, J., concurring,

in part, and dissenting, in part).

In the instant case, the circuit court was in an unusual procedural position

when it entered its disposition order—evaluating the Cecil T. factors based on Petitioner’s

pre-trial incarceration. With this unusual procedural position in mind, we note that the

circuit court’s Cecil T. analysis did not include any discussion of the potential length of

incarceration Petitioner was facing. Further, there was no discussion of the substance of

the underlying criminal charges Petitioner faced. Instead, the circuit court’s order focused

largely on the uncertain duration of Petitioner’s incarceration.

Additionally, the circuit court’s order does not include any substantive

discussion of the nature, length, and terms of Petitioner’s incarceration “in light of the

abused or neglected child’s best interests and paramount need for permanency, security,

10
stability and continuity.” Syl. Pt. 3, Id. When the circuit court entered its disposition order,

Petitioner had not been convicted or sentenced, and M.M. was successfully complying with

the terms of her improvement period. Therefore, the circuit court should have addressed

how terminating Petitioner’s parental rights in November of 2020 served the child’s need

for permanency, security, stability, and continuity.

Based on the foregoing, we find that the circuit court’s Cecil T. analysis was

erroneous. However, that is not the end of our inquiry. “This Court may, on appeal, affirm

the judgment of the lower court when it appears that such judgment is correct on any legal

ground disclosed by the record, regardless of the ground, reason or theory assigned by the

lower court as the basis for its judgment.” Syl. Pt. 3, Barnett v. Wolfolk, 149 W. Va. 246,

140 S.E.2d 466 (1965). As discussed below, the parties’ Rule 11(j) updates provide this

Court with a sufficient basis to conduct our own Cecil T. review. Upon such review, we

conclude that Petitioner’s parental rights should be terminated.

Petitioner has now been sentenced to an incarceration term of 78 months

based on his guilty plea to the “felon in possession of firearm” charge. Pursuant to Cecil

T., we must consider the nature of this offense and the length of incarceration. Because

Petitioner has now been convicted of being a “felon” in possession of a firearm, we find

that the underlying felonies are relevant to our consideration of the nature of his current

offense. During the disposition hearing, Petitioner testified that his underlying felonies

were for “arson and a manslaughter.” The manslaughter charge that Petitioner pled guilty

to is a crime that involved an act of violence. After serving his sentence for these crimes,

11
Petitioner, as a convicted felon, was not permitted to possess a firearm. Despite this

prohibition, Petitioner shot a deer with a firearm, was subsequently charged, and has now

pled guilty to the federal offense of “felon in possession of a firearm.” The length of

Petitioner’s confinement is 78 months.

It is clear that Petitioner knew he was not permitted to possess a firearm and

that he nevertheless engaged in conduct that resulted in his current conviction. This

conviction demonstrates that Petitioner failed to consider the impact his criminal conduct

would have on his ability to act as a responsible parent for his child. His actions resulted

in a lengthy term of incarceration, which will preclude him from fulfilling his parenting

responsibilities for the next 78 months. 9

9
Additionally, Petitioner has been re-indicted on the felony escape charge involving
tampering with his home confinement bracelet. If convicted, Petitioner faces a five-year
incarceration term. West Virginia Code § 61-5-10 (2000), provides, in relevant part:

Whoever escapes or attempts to escape by any means from the
custody of a county sheriff, the director of the regional jail authority, an
authorized representative of said persons, a law-enforcement officer,
probation officer, employee of the division of corrections, court bailiff, or
from any institution, facility, or any alternative sentence confinement, by
which he or she is lawfully confined, if the custody or confinement is by
virtue of a charge or conviction for a felony, is guilty of a felony and, upon
conviction thereof, shall be confined in a correctional facility for not more
than five years[.]

If found guilty of this charge, this is another instance of Petitioner’s failure
to consider the impact his criminal activity would have on his ability to parent his child.

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 Next, we find that terminating Petitioner’s parental rights based on his

current incarceration is in the child’s best interest and is necessary for the child to achieve

permanency, security, stability, and continuity. As set forth in the Rule 11(j) updates,

M.M.’s parental rights have now been terminated. During the disposition hearing,

Petitioner’s counsel conceded that if M.M. “failed to comply with her improvement period,

if her rights were terminated, then frankly [Petitioner’s] rights could be terminated right

along with it.” Because M.M.’s parental rights have now been terminated, the plan for

permanency is adoption by the child’s grandparents. It is clear that the paramount need for

the child to achieve permanency will be accomplished by terminating Petitioner’s parental

rights. The child is two years old. This Court has recognized that achieving permanency

is especially important for young children, such as the child at issue herein:

[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 [delayed] by
numerous placements.

Syl. Pt. 1, in part, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980) (emphasis added).

Similarly, this Court has observed that

the early, most formative years of a child’s life are crucial to
his or her development. There would be no adequate remedy at
law for these children were they permitted to continue in this
abyss of uncertainty. We have repeatedly emphasized that
children have a right to resolution of their life situations, to a
basic level of nurturance, protection, and security, and to a
permanent placement.

13
State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 257, 470 S.E.2d 205, 211 (1996).

In sum, our Cecil T. analysis reveals that the termination of Petitioner’s

parental rights is in the best interest of the child and will allow this child the opportunity to

achieve permanency through the planned adoption by her grandparents.

Finally, in light of our Cecil T. analysis, we find no support for Petitioner’s

argument that the circuit court erred by failing to grant him an improvement period. This

Court has held that “a parent charged with abuse and/or neglect is not unconditionally

entitled to an improvement period.” In re Emily, 208 W. Va. 325, 336, 540 S.E.2d 542, 553

(2000). West Virginia Code § 49-4-610(3)(B) provides that the circuit court may grant a

parent an improvement period when the parent “demonstrates, by clear and convincing

evidence, that the [parent] is likely to fully participate in the improvement period.” Further,

we have stated that a circuit court has discretion to deny an improvement period when no

improvement is likely. See In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359

(2002). We have also discussed the ability of incarcerated parents to correct the conditions

of abuse and neglect:

In some cases, a parent who is incarcerated may under the
circumstances still be able to correct conditions of abuse and
neglect “in the near future” through participation in an
improvement period or otherwise. In other cases, incarceration
may unreasonably delay the permanent placement of the child
deemed abused or neglected, and the best interests of the child
would be served by terminating the incarcerated person’s
parental rights.

Cecil T., 228 W. Va. at 97, 717 S.E.2d at 881.

14
 Because Petitioner’s incarceration term will last for at least 78 months, it is

clear that granting him an improvement period would be a futile act. Petitioner will not be

able to correct the conditions of abuse and neglect in the near future through participation

in an improvement period. Further, granting an improvement period would delay

permanency for the child and would clearly not be in the child’s best interest.

IV. CONCLUSION

We affirm the circuit court’s November 20, 2020, order.

Affirmed.

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