In re L.S.

FILED
May 16, 2023
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re L.S.
No. 22-739 (Randolph County 22-JA-01)
MEMORANDUM DECISION
Petitioner Father D.H.1 appeals the Circuit Court of Randolph County’s August 26, 2022,
order terminating his parental rights to L.S.2 Upon our review, we determine that oral argument is
unnecessary and that a memorandum decision affirming the circuit court’s order is appropriate.
See W. Va. R. App. P. 21.
In January of 2022, the DHHR filed a petition alleging that the mother abused
methamphetamine while pregnant with L.S. and attended only two prenatal doctor visits prior to
his birth in early January of 2022. The DHHR noted the circumstances surrounding the prior
involuntary termination of the mother’s parental rights in 2020 to another child, in part, due to her
substance abuse. The petition further alleged that the father of L.S. was unknown but that the
mother named petitioner as L.S.’s father. The DHHR alleged that when the worker interviewed
petitioner, he admitted struggling with a methamphetamine addiction but denied currently using
drugs. At the time of the filing of the petition, petitioner was incarcerated for a drug possession
charge and had two pending criminal charges for possession of a controlled substance from
November and December of 2021. A June 2022 petition alleged that petitioner was the biological
father of L.S., he produced three positive drug screens for methamphetamine while serving
probation, and that petitioner and the mother abused substances together while she was pregnant
with L.S. and continued to abuse substances after L.S.’s removal.
In June of 2022, petitioner filed a motion for a post-adjudicatory improvement period. That
same month, petitioner stipulated to the allegations contained in the petitions, and the court
adjudicated him as an “abusing and neglecting parent.” Following the adjudicatory hearing, the
DHHR filed a motion to terminate petitioner’s parental rights to L.S.
1
Petitioner appears by counsel G. Phillip Davis. The West Virginia Department of Health
and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey and
Assistant Attorney General Katica Ribel. Melissa T. Roman appears as the child’s guardian ad
litem.
2
We use initials where necessary to protect the identities of those involved in this case. See
W. Va. R. App. P. 40(e).
1
The circuit court held a dispositional hearing in July of 2022, at which time it addressed
the DHHR’s prior motion to terminate petitioner’s parental rights. Petitioner testified that he and
the mother remained in a relationship despite being advised by the multidisciplinary team
(“MDT”) that L.S. could not be returned to a home where the mother resided given that her parental
rights to L.S. were terminated in June of 2022. Although petitioner stated that he was willing to
abide by the terms of an improvement period, the court found that petitioner failed to participate
in the two previously scheduled MDT meetings and tested positive for illicit substances during the
proceedings. The court further found that petitioner chose to remain in a relationship with the
mother despite the termination of her parental rights and the resultant inability to reunify the
family. As such, the court denied petitioner’s motion for an improvement period, concluding that
there was no reasonable likelihood that petitioner could correct the conditions of abuse and neglect
in the near future and that termination was necessary for the child’s best interests. Accordingly,
the circuit court terminated petitioner’s parental rights to L.S.3 It is from the dispositional order
that petitioner appeals.
On appeal from a final order in an abuse and neglect proceeding, this Court reviews the
circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re
Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Petitioner argues that the circuit court erred in
terminating his parental rights rather than implementing a less restrictive dispositional alternative
such as an improvement period.
To obtain an improvement period under West Virginia Code § 49-4-610, the parent must
first demonstrate that they are likely to fully participate in the terms of an improvement period.
Here, the record shows that petitioner refused to leave the relationship with the mother even though
he understood the consequences of that decision, i.e., that he could not be reunified with L.S.
Petitioner also failed to address his substance abuse. A circuit court has the discretion to deny a
motion for an improvement period when no improvement is likely. In re Tonjia M., 212 W. Va.
443, 448, 573 S.E.2d 354, 359 (2002). Here, based on petitioner’s choice to remain with the mother
rather than focus on reunifying with the child and address his substance addiction, we find that the
circuit court did not err in denying petitioner’s motion for an improvement period.
For the same reasons, we find no error in the circuit court’s termination of petitioner’s
parental rights. West Virginia Code § 49-4-604(d)(1) defines “no reasonable likelihood that the
conditions of abuse and neglect can be substantially corrected” to exist when “the abusing parent
. . . ha[s] . . . habitually abused or [is] addicted to . . . controlled substances or drugs, to the extent
that proper parenting skills have been seriously impaired and the [parent]. . . ha[s] not responded
to or followed through with recommended and appropriate treatment[.]” The record shows that
petitioner exercised poor judgment regarding his continued relationship with the mother and failed
to address his drug addiction, which overwhelmingly supported the circuit court’s findings
regarding termination. See W. Va. Code § 49-4-604(c)(6) (permitting a circuit court to terminate
parental rights upon 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
3
The mother’s parental rights were terminated below. The permanency plan for L.S. is
adoption by his foster family.
2
welfare); see also Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (permitting
termination of parental rights “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” (citation omitted)).
For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 26, 2022, order is hereby affirmed.
Affirmed.
ISSUED: May 16, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
3