In re: J.D.-1, M.F., J.N., J.D.-2, J.D.-3, and B.D. ( 2022 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2022 Term FILED
_______________
October 21, 2022
released at 3:00 p.m.
No. 21-0892 EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re: J.D.-1, M.F., J.N., J.D.-2, J.D.-3, and B.D.
________________________________________________________
Appeal from the Circuit Court of Logan County
The Honorable Joshua Butcher, Judge
Civil Action Nos. 19-JA-176 through -181
AFFIRMED
________________________________________________________
Submitted: September 7, 2022
Filed: October 21, 2022
Lauren Thompson, Esq. Patrick Morrisey, Esq.
Williamson, West Virginia Attorney General
Counsel for Petitioner Brittany Ryers-Hindbaugh, Esq.
Assistant Attorney General
J. Christopher White, Esq. Charleston, West Virginia
Wolfe, White & Associates Counsel for WVDHHR
Logan, West Virginia
Guardian ad litem for
Infant Respondents
CHIEF JUSTICE HUTCHISON delivered the Opinion of the Court.
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 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. “Once a court exercising proper jurisdiction has made a determination
upon sufficient proof that a child has been neglected and his natural parents were so derelict
in their duties as to be unfit, the welfare of the infant is the polar star by which the discretion
of the court is to be guided in making its award of legal custody.” Syl. Pt. 8, in part, In re
Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).
3. “‘Termination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [West Virginia Code §
i
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[(d)]] 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, N.R., 242 W. Va. 581,
836 S.E.2d 799 (2019).
ii
HUTCHISON, Chief Justice:
Petitioner J.D. 1 appeals a final order entered on August 30, 2021, by the
Circuit Court of Logan County, that terminated his parental rights to his six children and
denied his motion to reconsider the court’s prior order denying his motion for an
improvement period. The circuit court ultimately concluded that there was no reasonable
likelihood that the conditions of neglect – namely, the deplorable condition of the home in
which the children were found to be living – could be substantially corrected in the near
future.
Upon review of the parties’ briefs, appendix record, oral argument, and
applicable legal authority, and for the reasons stated below, we find no error and affirm the
decision of the circuit court.
I. Factual and Procedural Background
Petitioner’s present involvement with the West Virginia Department of
Health and Human Resources (“the DHHR”) marks the third time in four years that he has
been the subject of an abuse and neglect petition and his children have been removed from
the home on an emergency basis for the same or similar reasons. In May of 2016, the
In cases involving sensitive facts, we use initials to identify the parties. See W.Va.
1
R. App. Proc. 40(e); see also State v. Edward Charles L., 183 W.Va. 641, 645 n.1, 398
S.E.2d 123, 127 n.1 (1990). Additionally, because three of the children share the same
initials, we identify them as J.D.-1, J.D.-2., and J.D.-3, respectively.
1
DHHR filed the first Petition for Immediate Custody of Minor Children in Imminent
Danger (“emergency petition”) seeking custody of the minor children J.D.-1, M.F., J.N.,
J.D.-2, and J.D.-3. The petition alleged that Mother J.J., the mother of then newborn J.D.-
3, tested positive for controlled substances upon the child’s birth. As it related to the
condition of the home, the petition also alleged that the family “recently had to move out
into another family’s house due to not having electricity.” 2 Petitioner was granted a pre-
adjudicatory improvement period that required him to maintain adequate housing.
Petitioner successfully completed the improvement period and regained custody of the
children.
In November of 2017, following the birth of B.D. in August of 2017, the
DHHR filed a second emergency petition. According to the petition, Child Protective
Services (CPS) worker Rebecca Perry and case aid Stephanie Ryan visited the home where
five of the six children were living with petitioner. The petition alleged that the “children’s
hygiene was all poor and they appeared dirty and unkept looking.” One of the children,
J.N., was observed with a knot and bruise over his right eye, with petitioner and Mother
J.J. 3 giving different explanations as to how the injury occurred. Petitioner’s house was
reported to be in “very poor physical condition,” including having huge holes in the walls
2
Caseworker Jaleesa Jones testified that prior to the filing of the 2016 petition and
emergency removal of the children, the Department had received a referral regarding
unsafe living conditions in the home.
3
Mother J.J., the mother of J.D.-2, J.D.-3, and B.D., was staying at the home with
petitioner and the children at the time the 2017 petition was filed.
2
that were stuffed with a mattress, and live electrical wires hanging from exposed ceiling
rafters throughout the house and within reach of the children. The house had “minimal
heat” such that “[t]he family had the stove tops all turned on High and the oven door was
wide open, to assist in heating the family home.” Space heaters that had been placed in the
bedroom had clothing and debris piled around them. The CPS workers also observed “dirty
dishes stacked up in the sink and on the counters, that had mice running over them.” There
was no working refrigerator.
Petitioner admitted to the allegations as set forth in the 2017 petition and was
granted a post-adjudicatory improvement period. The DHHR provided petitioner with
parenting and adult life skills classes as well as a set of bunk beds, a vacuum cleaner,
microwave oven, and money to purchase lumber for home repairs. The guardian gifted
petitioner a washer and dryer. Petitioner successfully completed the improvement period
and regained custody of the children. Caseworker Jaleesa Jones testified that, at the
conclusion of the 2017 proceeding, the DHHR advised petitioner that it would oppose any
future improvement periods in the event a petition with similar allegations was
subsequently filed.
Between the time the family was reunified in late 2018 or early 2019 and the
filing of the present petition in December of 2019, the DHHR received at least five referrals
concerning unsafe living conditions in petitioner’s home. Ms. Jones testified that, with each
referral, the DHHR requested that petitioner clean up the home so as to obviate the need
for the filing of another petition. In each instance, petitioner complied with the request.
3
Ultimately, however, after receiving yet another referral on December 11, 2019, the DHHR
filed the present emergency petition. 4 Specifically, the DHHR received a referral that
children J.D.-2 and J.D.-3 “are seen daily with black on their hands and face,” “hav[e] an
odor;” and that the principal and teacher from the children’s school clean the children’s
hands and faces in the mornings because they are “filthy.” One of the children, J.D.-2,
related that he could not state the last time he bathed because multiple puppies were being
kept in the bathtub so they would not fall through the holes in the floor. J.N. told CPS
worker Regina Short that petitioner had four blankets but “last night was not his [i.e.,
J.N.’s] night to have a blanket.” Child J.N. was also found to have ringworm “from his
chin down his body.” Although petitioner told workers that J.N. contracted the ringworm
over the weekend while he was staying with his mother, according to the petition, J.N.’s
foster family subsequently took him to the emergency room for treatment and “[i]t was
stated that he has had to have [ringworm] for a period of time for [it] to be that bad.”
The petition also outlined the unsafe and unsanitary conditions existing in
the home. When CPS workers Ashley Ranson and Ms. Short, along with law enforcement,
arrived at the home, they observed the outside porch to be very cluttered, with “not much
4
The 2019 petition named as respondents petitioner as well as Mother W.F., the
biological mother of M.F., and Mother B.G., the biological mother of J.N. Mother W.F.
has retained her parental rights and has consented to a guardianship of M.F. Mother B.G.’s
parental rights have been terminated. The parental rights of these mothers are not at issue
in this appeal. Mother E.F., the biological mother of J.D.-1 is deceased. The parental rights
of Mother J.J., the biological mother of J.D.-2, J.D.-3, and B.D., were terminated in 2018.
Her rights are not presently at issue.
4
room to stand . . . without stepping on glass or trash.” There was fecal matter “all in the
yard.” The porch could not be reached without climbing a six-foot ladder. Wires from
inside the home were connected to the meter box of the house next door. Once inside the
home, the workers observed the home to be “trashy,” “food swept up into a pile on the
floor,” miscellaneous items in piles all over the various rooms, a soiled mattress in the
middle of the living room that was emitting a strong odor, and a strong odor coming from
the refrigerator when opened. According to the petition, the “[c]eilings in most of the home
appeared to be missing” and had wires hanging from them in multiple rooms, and one of
the walls had plastic tacked to it and behind it was “insulation, framework, and the outside
wall of the main side of the house.” Boards were placed across the floor in the bedroom to
cover up holes; when the boards were removed, the ground was visible. Built into a hole
torn out of the bedroom wall was a gas-powered fireplace that faced the living room; and
bags were piled within inches of the exposed flame. Two adult dogs and multiple puppies
were kept in the bathtub so that they would not fall through the holes in the floors. The
toilet flushed straight into holes dug into the ground beneath the home.
A preliminary hearing was held on January 15, 2020, 5 at which the circuit
court heard evidence largely consistent with the allegations set forth in the emergency
petition. Ms. Ranson, the CPS worker, testified that the home failed to meet the basic needs
of any person, especially children, and that it was among the most unsafe homes that she
Petitioner failed to appear at the January 15, 2020, hearing, but he was represented
5
by counsel.
5
had ever visited during the course of her employment as a CPS worker. In an order entered
on February 5, 2020, the circuit court noted that petitioner has “a long history with the
[DHHR]” and that the DHHR satisfied its burden of showing that the children were in
imminent danger of abuse and/or neglect at the time of the emergency removal and that
there were no reasonable alternatives to the removal due to the emergency circumstances.
An adjudicatory hearing was held on March 16, 2020, at which petitioner
appeared in person and was represented by counsel. Based upon petitioner’s admissions to
the unsuitable and unsafe living conditions at the time of the emergency removal, the circuit
court adjudged the children to be “neglected children” as that term is defined in Chapter
49 of the West Virginia Code. Petitioner moved for a post-adjudicatory improvement
period, advising the court that he had secured a more suitable residence that would soon be
habitable for the children. The DHHR objected to the granting of an improvement period
on the ground that
this is the at least third time that these children have been
removed from [petitioner’s] residence since 2016 for exactly
the same issue . . . . [T]here is no likelihood that [petitioner]
can complete an improvement period. Because he has
demonstrated now on three separate occasions where his
children were removed from these conditions, that he does not
have the ability to maintain housing appropriate for these
children. Just in the 2017 case lasted a little over year. Those
children were returned to [petitioner’s] residence. . . . and we
are back here about a year later with a house that’s in
completely deplorable conditions. . . . [He] has had two
previous opportunities to address the exact same issues. And to
his credit during those two cases, he did. . . . He fixed his
residence. But each time it seems that the department gets a
referral, the residence in which these children are living with
6
[petitioner] gets worse and worse. This court saw pictures and
heard testimony at the preliminary hearing about the conditions
that these children were found in less than a year after they
returned after the department assisted [petitioner] in giving this
house a makeover. . . . He fixes his house and as soon as we
turn our head, he takes it apart again, and for whatever reason
won’t put it back together until the department takes his kids
from him.
The guardian likewise objected to the granting of an improvement period,
stating that he was not previously aware that petitioner had obtained a new residence and
observing that “the situation has not remedied itself in the past cases . . . and I do have
reservations about whether anything is going to change this time either.” The guardian also
informed the circuit court that petitioner “has not been proactive in maintaining contact
with the department in attempting to exercise visitation 6 and that is gravely concerning to
me, maybe more concerning than the failure of the home would be maintained [sic].”
(Footnote added). The court permitted the guardian to visit the new residence while also
recognizing the DHHR’s position “that the condition of the home is somewhat irrelevant
to the question of whether or not [petitioner] can improve long-term.” Petitioner’s motion
for an improvement period was held in abeyance.
A hearing on petitioner’s motion was held on June 2, 2020. 7 The DHHR
renewed its objection to the granting of an improvement period. The guardian advised that
Petitioner did not make contact with the Department until July of 2020, more than
6
six months after the children were removed. See infra.
7
The hearing was originally scheduled for March 31, 2020. However, it was delayed
to June 2, 2020.
7
he visited the new home and submitted photographs to the court. In opposing an
improvement period, the guardian reported that “there’s still some serious impediments to
safely housing children in that home.” There were also questions as to the difference
between the old home (which petitioner claimed to have torn down) and the new home,
and “whether these are actually two different homes.” The guardian informed the court
that, even with the delay following the March 16th hearing on the motion for an
improvement period 8 and petitioner’s stated intention to work on and improve the home,
“more could have been done, this is basically the same condition that I saw it in when we
were last present back in March. There’s no marke[d] improvement on the home.”
By order entered on July 29, 2020, the circuit court denied petitioner’s
motion for an improvement period. The court specifically referenced the prior emergency
abuse and neglect proceedings that involved similar allegations to the instant action and
noted that petitioner has failed to take advantage of the numerous opportunities afforded to
him “to address the unsafe and unsanitary living conditions in which he repeatedly lives
with the Infants. . . . [A]lmost immediately following every reunification, the [DHHR]
receives new referrals claiming the Infants are again living in unsafe and deplorable living
conditions.” The circuit court found that
[f]or whatever reason, [petitioner] has demonstrated a
total unwillingness or a complete lack of ability to maintain a
residence suitable for any living person, let alone he and his
numerous young children. In addition to the financial
8
See n.7, supra.
8
assistance provided by the [DHHR] . . . and the generosity of a
prior [guardian] who gifted [petitioner] new appliances,
[petitioner] receives government assistance for all of his
children. It is obvious from even a cursory review of the
pictures submitted into evidence that virtually none of that
income is being used by [petitioner] to maintain a residence
suitable for he and his children. . . . By all indications from the
evidence before the Court, [petitioner’s] residence is in even
worse condition than it was during either of the two previous
emergency filings. Therefore, there are no additional services
the [DHHR] can provide to [petitioner] which would further a
goal of reunification in this matter as every service available to
the [DHHR] has been previously explored and exhausted
during prior court actions with [petitioner]. In essence, despite
receiving services from the [DHHR] for many year[s],
[petitioner] has always reverted back to his neglectful ways.
The circuit court concluded that petitioner failed to present any evidence in support of his
motion for an improvement period and that he, thus, failed to meet his burden of
demonstrating, by clear and convincing evidence, that he is likely to participate in one.
In the meantime, on July 1, 2020, the DHHR had filed a motion to terminate
petitioner’s parental rights on the ground that, based upon petitioner’s history with the
DHHR and the circumstances from which the children were again removed, there is no
reasonable likelihood that the conditions of neglect that led to the removal can be corrected
in the near future. 9 The guardian also recommended that petitioner’s parental rights to the
children be terminated. In a March 17, 2021, report, the guardian recounted that petitioner
9
See W. Va. Code § 49-4-604(c)(6) [2020], discussed infra. For ease of reference,
we refer to the most recent version of West Virginia Code § 49-4-604, which, although
amended since the petition was filed in this case, the amendments do not affect the
outcome.
9
“had a long period of not communicating with the [DHHR] and participating in visits with
the minor children.” Indeed, it was not until after the filing of the motion to terminate on
July 1, 2020 – more than six months after the children were removed on an emergency
basis – that petitioner and his then counsel finally contacted the DHHR by visiting the
DHHR’s office in Logan, providing petitioner’s updated contact information, and
expressing a desire to have visitation with the children. The guardian acknowledged in his
report that, more recently, there has been regular visitation, but found that “the
psychological bond between the children and [petitioner] is lacking.” According to the
report, petitioner often arrives late to the weekly hour-long visits with the children and the
visits
are interrupted by grievances [toward the providers] that . . .
develop during the visit which, even if legitimate, could be
resolved after the visitations end. The minor children complain
that [petitioner] does not interact with them individually and
that the visits are superficial. Both [J.D.-1] and [M.F.] have
indicated that they would prefer not to visit with [petitioner].
The younger children typically have more behaviors relating to
acting out after a visit.
The report also noted that petitioner has moved residences multiple times
since the filing of the petition and that “[g]eneral issues with safety within the home
continue to exist and cause continued concern with [petitioner’s] judgment and ability to
parent. There is little transparency about how [petitioner] would financially meet the needs
of his children and provide suitable living conditions for himself and the children if
reunification occurred.” Finally, the report concluded that “[t]he children have made
10
improvements in the more stable, nurturing environments in which they have been placed
and it is in their best interest to continue this stability and care long-term.”
A dispositional hearing was held on March 17, 2021, at which petitioner
again moved for an improvement period. 10 Petitioner argued that the DHHR failed to link
him to affordable housing, and that his prior counsel was so ineffective that petitioner was
not made aware of what the DHHR expected of him for reunification to occur, including
communicating with the DHHR, improving his living conditions, and participating in visits
with the children. Notwithstanding the deficiencies of his counsel and the DHHR,
petitioner argued, he improved his living conditions on his own and with his own money
by obtaining and maintaining clean and appropriate housing.
Although petitioner had shown a willingness to comply with an improvement
period by making efforts to maintain a clean and appropriate home, the guardian
perceive[d] it as too little too late because of the lapse in the
beginning of the case of any attempts of compliance and
because of the – it just feels like it was too little too late and his
bond with the children was irretrievably damaged by the lack
of contact and the lack of effort. I would concede that he has
made an effort since July or at least made more of an effort.
But through the inception of the case for the first – the essential
six or seven months of the case[,] nothing happened.
10
By this time, petitioner had obtained current counsel. During the pendency of the
proceedings, the Department reportedly filed a legal ethics complaint against petitioner’s
previous counsel. No substantive information concerning the complaint was disclosed to
petitioner nor has been made a part of the appendix record.
11
The guardian further testified that petitioner failed to demonstrate that he can
consistently maintain appropriate living conditions for the children long term: “The pattern
of the state becoming involved when things are at a point where it’s unlivable and unsafe,
then some sort of return to something that is livable and is appropriate and the state not be
involved and a quick return to it being unlivable and inappropriate, I mean it’s a pattern
and I fear that it would repeat.” In the guardian’s view, it was in the best interests of the
children to deny petitioner an improvement period.
By order entered on April 9, 2021, the circuit court denied petitioner’s
motion for a dispositional improvement period. The court concluded that, despite
petitioner’s recent efforts to improve his living situation and participate in visits with the
children, he failed to prove, by clear and convincing evidence, that he is likely to fully
participate in an improvement period. The circuit court stressed that the similar
circumstances giving rise to the prior and present emergency removals show petitioner’s
inability to maintain any lasting improvements in housing, which is detrimental to the
children:
While [petitioner’s] living situation has changed
multiple times even since the first time the matter was set for
disposition and has arguably improved, and, even though he
was permitted visitation for quite some time between then and
now, the rationale behind the Court’s ruling today and
DHHR’s position today remains the same; namely, that the
long history of issues reflected in abuse/neglect petitions
similar to this one coupled with the issues presented herein
reflect the conclusion that the best interests of the subject
children are not served by the granting of yet another
improvement period – even more so in this situation where
12
more delay has been caused. The argument that [petitioner] is
incapable of long-term resolution of the issues that bring him
here once again are not changed by his evidence of quite recent
improvements to his living situation, and, his argument that his
prior counsel failed him in so many ways, while regrettable, is
not justification for his failure to comply with the directives of
this Court or for his being back in this situation for the third
time in five years. The Court is reminded that the standard for
whether [petitioner] should receive the benefit of an
improvement period is whether he has shown by clear and
convincing evidence that he is likely to fully participate. His
past case shows that he did participate and successfully
regained custody of his children, and since he did so, this Court
finds it can fairly hold against [petitioner] that he does in fact
know what it takes to address the issues in a child abuse and
neglect case in which his children have been removed from his
care. Accordingly, his argument that he did not know what
DHHR wanted from him, or that his prior counsel wrongfully
led him astray is disingenuous, as his behavior in his prior case
demonstrated he did know what actions to take to regain
custody of his children. [Petitioner] has demonstrated an
inability to maintain a suitable living situation for any length
of time – in the prior case and the instant case.
Petitioner thereafter filed a motion for reconsideration of the denial of an
improvement period.
At a hearing held on April 12, 2021, the DHHR moved to terminate
petitioner’s parental rights. The guardian joined in the motion. After hearing evidence from
all parties, the circuit court entered an order on August 30, 2021, terminating petitioner’s
parental rights and denying his previously filed motion to reconsider the denial of an
improvement period. The court reiterated its prior findings particularly relating to the 2016
and 2017 petitions and the unsafe condition of the home and noted testimony from the
DHHR that, when the 2017 case was concluded and the children reunified with petitioner,
13
that the DHHR informed petitioner that it would not agree to an improvement period should
similar allegations regarding unsafe housing arise in the future. The circuit court further
found that petitioner had previously been provided with services as well as transportation
assistance and visitation, vouchers for bunk beds and a vacuum cleaner, money for home
repairs, and appliances from the guardian, all in an effort to address the allegations that led
to the filing of the 2017 petition. However, the court found, almost immediately upon the
conclusion of that case, the DHHR began receiving new referrals concerning the
uninhabitable condition of the home, which ultimately led to the filing of the emergency
petition in the present case:
[T]he issues affecting [petitioner’s] residence appear to
get worse over time and from case to case. What started out as
a home without electricity ended up as a home in the deplorable
conditions described above at the time of the most recent
emergency removal at issue in the current case. Further, even
though [petitioner] has previously completed two
improvement periods in two prior abuse and neglect cases, he
returns to his neglectful ways as evidenced by the continued
issues with his home as outlined by the case workers and
acknowledged by [petitioner].
The court thus concluded that there was no reasonable likelihood that the
conditions of neglect that led to the removal of the children could be corrected in the near
future, and that termination of his parental rights was appropriate. It is from this order that
petitioner now appeals.
14
II. Standard of Review
Circuit court orders in abuse and neglect proceedings are subject to 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). The deferential approach
to a circuit court’s findings in these cases is justified by “‘[t]he critical nature of
unreviewable intangibles’” and by the acknowledgment that that “‘court is the better-
equipped tribunal’ to make substantive determinations” 11 concerning whether an
11
In re Charity H., 215 W. Va. 208, 215, 599 S.E.2d 631, 638 (2004) (internal
citations omitted).
15
improvement period should be granted and parental rights terminated. 12 With these
standards in mind, we now consider the parties’ arguments.
III. Discussion
Denial of an Improvement Period
On appeal, petitioner argues that the circuit court erred in denying his motion
for an improvement period because he proved, by clear and convincing evidence, that he
is likely to fully participate in the same, as evidenced by the fact that he successfully
completed improvement periods in connection with the prior petitions that were filed
against him in 2016 and 2017. According to petitioner, the unsafe condition of his home
was directly related to his poverty and financial inability to structurally improve it to the
satisfaction of the DHHR. He contends that his “singular need, which was specifically
limited to the issue of appropriate housing” would have been “immediately and
permanently solved” if the DHHR had simply linked him with federally subsidized housing
years ago. Nonetheless, petitioner argues, despite the DHHR’s failure to provide him with
this specific service, he presented evidence that, for the five months immediately preceding
the March 17, 2021, dispositional hearing, he maintained clean and appropriate housing on
his own and with his own money and participated in weekly visitation with the children.
Finally, to the extent the circuit court denied his request for an improvement period because
he failed to contact the DHHR or participate in services – including visitation with the
See In re Rebecca K.C., 213 W. Va. 230, 233, 579 S.E.2d 718, 721 (2003) (quoting
12
In re Emily & Amos B., 208 W. Va. 325, 340, 540 S.E.2d 542, 557 (2000)).
16
children – for the first six months of this case, petitioner blames his previous counsel, who
was so ineffective that the DHHR filed a legal ethics complaint against him during the
pendency of the proceedings. Petitioner argues that he should not be held responsible for
his prior counsel’s apparent ethical misconduct.
The DHHR counters that the circuit court properly denied petitioner’s
requests for an improvement period. Although petitioner successfully completed
improvement periods in connection with the prior petitions, the conditions in which the
family were found to be living only a few short months after the 2017 case was concluded
were among the worst the caseworker had ever seen, leading the DHHR and the circuit
court to reasonably conclude that petitioner is unable or unwilling to sustain safe and
sanitary housing for the long term. The DHHR also argues that petitioner’s claim that his
prior counsel led him astray as to what was required of him in order to reunite with the
children is not credible given petitioner’s prior involvement in proceedings similar to this
one.
The guardian similarly argues that the circuit court did not err in denying
petitioner an improvement period. The guardian contends that the court correctly found
that although petitioner was given numerous opportunities to address the unsafe and
unsanitary conditions existing in the home, his efforts have failed to show a lasting effect
and, further that the DHHR can provide no additional services that would further a goal of
reunification. Finally, the guardian reports that “the children have consistently improved
17
educationally and behaviorally since their removal” and contends that the denial of an
improvement period was in their best interest.
We find no error. “[A]n improvement period in the context
of abuse and neglect proceedings is viewed as an opportunity for the miscreant parent to
modify his/her behavior so as to correct the conditions of abuse and/or neglect with which
he/she has been charged.” In re Emily & Amos B., 208 W. Va. 325, 334, 540 S.E.2d 542,
551 (2000). Circuit courts are afforded discretion in deciding whether 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). “Both statutory and case law emphasize that a parent
charged with abuse and/or neglect is not unconditionally entitled to an improvement period.
Where an improvement period would jeopardize the best interests of the child, for instance,
an improvement period will not be granted.” In re Charity H., 215 W.Va. 208, 216, 599
S.E.2d 631, 639 (2004). Indeed, the respondent parent bears the burden of showing that he
or she should be granted the opportunity to remedy the circumstances that led to
the filing of the abuse and neglect petition. More specifically, West Virginia Code § 49-4-
610(3)(B) [2015] provides that “[t]he court may grant an improvement period . . . as a
disposition . . . when . . . [t]he respondent demonstrates, by clear and convincing evidence,
that the respondent is likely to fully participate in the improvement period . . . .” See In re
M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015).
The record clearly supports the circuit court’s decision to deny petitioner an
improvement period in this case. The issue here is not, per se, whether petitioner would
18
participate in an improvement period. Indeed, we acknowledge that, in the 2016 and 2017
proceedings, petitioner successfully completed improvement periods, demonstrating that
that he was capable of providing a home for his children that is safe, clean, and habitable,
but only on a short-term basis. It became abundantly clear that, once the watchful eye of
the DHHR was no longer upon petitioner, the conditions of the home soon became more
unsafe, more unsanitary, and uninhabitable for any child. The undisputed evidence shows
that within a few short months of regaining custody of the children in the 2017 case, the
DHHR began receiving referrals concerning the unsafe condition of the home. The
DHHR’s Ms. Jones testified that the DHHR worked with petitioner by affording him at
least five opportunities to remedy the unlivable conditions. Ultimately, the conditions were
found to be so dire that the DHHR had no choice but to file the petition in this case and
once again remove the children on an emergency basis. The home was found to have holes
in the floors; exposed wiring in multiple rooms; rooms cluttered with trash, clothes, and
other items; animals living in the bathtub; the presence of feces in the home and in the yard;
a lack of working plumbing and electricity; and a porch that was strewn with broken glass
and trash and that could only be reached by a six-foot ladder. Upon viewing photographs
of the home that were taken at the time of the emergency removal, the circuit court
observed it to be in even worse condition than it was during the previous emergency filings.
Petitioner’s testimony that he recently expended effort and his own money
to move to a house that would be safe and appropriate for the children, thereby
demonstrating that he is likely to participate in an improvement period in this case, is of no
19
moment. As we have previously noted, it is possible for a person to be in “compliance with
specific aspects of the case plan” while failing “to improve . . . [the] overall attitude and
approach to parenting.” West Va. Dept. of Human Serv. v. Peggy F., 184 W.Va. 60, 64, 399
S.E.2d 460, 464 (1990). The circuit court concluded that petitioner had unequivocally
shown that he is either unable or unwilling to sustain a habitable home without the DHHR’s
intervention, and we agree. Petitioner posits that the root of his housing problems is
singularly attributable to the DHHR’s failure to link him with federally subsidized housing
early on, and that assistance in this regard during the course of the proceedings would have
immediately and permanently resolved the issues in this case. Even a cursory review of the
petition and evidence belies this argument. As we have previously described the condition
of both the home and children at the time of the emergency removal, the DHHR’s
complaints go well beyond the structural issues with the home.
Moreover, any claim that petitioner was unaware that he was expected to
contact the DHHR or undertake efforts to improve the deplorable living conditions from
which the children were removed because prior counsel was ineffective is simply not
credible. Petitioner was previously named as a respondent in two similar petitions in which
he successfully completed improvement periods that resulted in reunification with the
children. It is thus beyond cavil that petitioner knew what was required of him for
reunification to occur in this case.
Finally, the evidence showed that denying petitioner an improvement period
is in the best interests of the children. By failing to communicate with the DHHR or begin
20
searching for appropriate housing for more than six months after the children were removed
on an emergency basis, petitioner, in the opinion of the guardian, irretrievably damaged his
bond with the children. It was further reported that petitioner’s weekly visits with the
children were clouded by petitioner’s persistent grievances to the providers, which he
insisted on airing during the brief time he was allotted to spend with the children, all to the
children’s detriment. Without question, “the pre-eminent concern in abuse
and neglect proceedings is the best interest of the child subject thereto.” In re Emily &
Amos B., 208 W. Va. at 326, 540 S.E.2d at 553. We have held that
[o]nce a court exercising proper jurisdiction has made a
determination upon sufficient proof that a child has been
neglected and his natural parents were so derelict in their duties
as to be unfit, the welfare of the infant is the polar star by which
the discretion of the court is to be guided in making its award
of legal custody.
Syl. Pt. 8, in part, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973). For all of these
reasons, we conclude that the circuit court did not abuse its discretion in denying
petitioner’s motion for an improvement period.
Termination of Parental Rights
Petitioner argues that the circuit court also erred in terminating his parental
rights. He contends that the court, without specifically referencing West Virginia Code §
21
49-4-604(c)(7)(A), 13 treated the circumstances giving rise to the prior petitions as
“aggravated circumstances” that, unjustifiably, relieved the DHHR of its obligation to
make reasonable efforts to preserve the family. He argues that this “case simply does not
present a long history of issues and sufficient severity to treat [petitioner’s] case as one of
aggravated circumstances.” Likewise, petitioner argues, the facts of this case do not satisfy
any of the provisions of West Virginia Code § 49-4-604(c)(7)(B), (C) or (D), 14 which very
13
West Virginia Code § 49-4-604(c)(7)(A) provides as follows:
For purposes of the court’s consideration of the
disposition custody of a child pursuant to this subsection, the
department is not required to make reasonable efforts to
preserve the family if the court determines:
(A) The parent has subjected the child, another child of the
parent or any other child residing in the same household or
under the temporary or permanent custody of the parent to
aggravated circumstances which include, but are not
limited to, abandonment, torture, chronic abuse, and
sexual abuse[.]
14
West Virginia Code § 49-4-604(c)(7)(B), (C), and (D) provides as follows:
For purposes of the court’s consideration of the
disposition custody of a child pursuant to this subsection, the
department is not required to make reasonable efforts to
preserve the family if the court determines:
(B) The parent has:
(i) Committed murder of the child’s other parent,
guardian or custodian, another child of the
parent, or any other child residing in the same
Continued . . .
22
household or under the temporary or permanent
custody of the parent;
(ii) Committed voluntary manslaughter of the child's
other parent, guardian, or custodian, another
child of the parent, or any other child residing in
the same household or under the temporary or
permanent custody of the parent;
(iii) Attempted or conspired to commit murder or
voluntary manslaughter, or been an accessory
before or after the fact to either crime;
(iv) Committed a malicious assault that results in
serious bodily injury to the child, the child's other
parent, guardian, or custodian, to another child of
the parent, or any other child residing in the same
household or under the temporary or permanent
custody of the parent;
(v) Attempted or conspired to commit malicious
assault, as outlined in subparagraph (iv), or been
an accessory before or after the fact to the same;
(vi) Committed sexual assault or sexual abuse of the
child, the child's other parent, guardian, or
custodian, another child of the parent, or any
other child residing in the same household or
under the temporary or permanent custody of the
parent; or
(vii) Attempted or conspired to commit sexual assault
or sexual abuse, as outlined in subparagraph (vi),
or been an accessory before or after the fact to
the same.
(C) The parental rights of the parent to another child have
been terminated involuntarily;
(D) A parent has been required by state or federal law to
register with a sex offender registry, and the court has
Continued . . .
23
clearly provide what circumstances must exist for the DHHR to refuse to make reasonable
efforts to preserve the family. According to petitioner, such reasonable efforts should have
consisted of the DHHR linking him to federally subsidized housing, which would have
immediately and permanently remedied all of the issues in this case.
We find petitioner’s argument to be wholly without merit. To be sure, the
facts and circumstances of petitioner’s case do not come within the ambit of West Virginia
Code § 49-4-604(c)(7). Indeed, the DHHR never argued, nor did the circuit court suggest,
that the provisions of the statute applied to justify the termination of petitioner’s parental
rights. Rather, the circuit court observed 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[(d)]] 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, N.R., 242 W. Va. 581, 836 S.E.2d 799 (2019).
determined in consideration of the nature and
circumstances surrounding the prior charges against that
parent, that the child’s interests would not be promoted by
a preservation of the family.
24
West Virginia Code § 49-4-604(c)(6) authorizes circuit courts to terminate
parental rights “[u]pon a finding that there is no reasonable likelihood that the conditions
of neglect or abuse can be substantially corrected in the near future and[] when necessary
for the welfare of the child[.]” Pursuant to West Virginia Code § 49-4-604(d)(3), “[n]o
reasonable likelihood that conditions of neglect or abuse can be substantially corrected”
means, in relevant part, that,
based upon the 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. Those
conditions exist in the following circumstances, which are not
exclusive:
....
The abusing parent or parents have 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 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[.]
As the evidence previously outlined in detail above shows, and which need
not be repeated here, petitioner has demonstrated, over the course of two previous abuse
and neglect proceedings and multiple referrals since then, that he is incapable of
maintaining appropriate living conditions for the children for the long term and in their
best interests. Thus, we conclude that the circuit court did not err in concluding that there
was no reasonable likelihood that the conditions of neglect could be substantially corrected
25
in the near future, and that termination of petitioner’s parental rights was necessary for the
welfare of the children.
IV. Conclusion
Based upon all of the foregoing, the circuit court’s order is hereby affirmed.
Affirmed.
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