                                                                                     FILED
                                                                                  June 7, 2021
                               STATE OF WEST VIRGINIA                           EDYTHE NASH GAISER, CLERK
                             SUPREME COURT OF APPEALS                           SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




In re R.H.

No. 20-0950 (Mercer County 19-JA-81-MW)



                                MEMORANDUM DECISION


         Petitioner Father R.H. III, by counsel John G. Byrd, appeals the Circuit Court of Mercer
County’s October 26, 2020, order terminating his parental rights to R.H. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N. Felton-Ernest,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Monica
Holliday, 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
imposing a less-restrictive dispositional alternative, such as terminating his custodial rights only.

       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 July of 2019, the DHHR filed an abuse and neglect petition against petitioner and the
mother based upon petitioner’s domestic violence against the mother and her two children. 2
Specifically, the DHHR alleged that in May of 2019, petitioner struck and beat the children with
belts and with his hand resulting in busted lips, bleeding ears, and other injuries. The DHHR also
alleged that the children reported witnessing domestic violence between their mother and
petitioner. The respective Child Protective Services (“CPS”) and law enforcement agencies of
West Virginia and Virginia had collaborated since May of 2019 to protect the mother and children
from petitioner by implementing a domestic violence protective order in Virginia 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).
       2
           These children are not at issue on appeal.
                                                   1
implementing in-home safety services and a temporary protection plan in West Virginia. In July
of 2019, the mother gave birth to R.H., petitioner’s only child with the mother and the only child
at issue in this appeal. The mother then violated the domestic violence protective order and the
DHHR’s restrictions by moving back in with petitioner with newborn R.H. The mother left her
two oldest children at the maternal grandfather’s residence in Bluefield, West Virginia. The DHHR
filed a petition for abuse and neglect against petitioner and the mother in West Virginia as the
children were living in Bluefield, West Virginia. 3 After the DHHR made several offers to take the
mother and her three children to the domestic violence shelter and the mother refused, the DHHR
sought emergency ratification of the children’s removal. The mother and R.H.’s paternal
grandmother actively evaded CPS and attempted to thwart the children’s removal. The DHHR also
learned that petitioner had an extensive criminal history in West Virginia and Virginia that
included numerous convictions and pending charges of domestic assault, domestic battery,
attempted malicious wounding, and child abuse resulting in injury. Thereafter, petitioner waived
his preliminary hearing.

         The circuit court held an adjudicatory hearing in September of 2019, wherein petitioner
stipulated to abusing the mother’s two older children as evidenced by their various injuries. The
circuit court accepted the stipulation and adjudicated petitioner as an abusing parent in regard to
all three children. Thereafter, petitioner filed a motion for a post-adjudicatory improvement period,
which the circuit court granted. The case plan required petitioner to obtain and maintain
employment and housing, participate in parenting and adult life skills classes, submit to drug
screens, exercise visitations with R.H., undergo a psychological evaluation, and participate in the
Batterers Intervention and Prevention Program (“BIPP”). Most importantly, the family case plan
required that the mother and petitioner not have contact. At a review hearing held in December of
2019, the circuit court continued the mother and petitioner’s improvement periods despite the
DHHR’s proffers that the parents denied the allegations of domestic abuse. The circuit court
ordered petitioner and the mother to attend domestic violence counseling.

        At a status hearing in March of 2020, the guardian reported that the mother and petitioner
continued to have contact and were living together in direct violation of their case plans. The
guardian further expressed skepticism with petitioner and the mother’s excuses that they suffered
from scabies and pink eye, which prevented them from participating in the remaining terms of
their improvement periods, such as supervised visitations. The guardian proffered that the mother
continued to work despite the alleged contagious diagnosis and that a DHHR worker observed the
mother to be healthy with no skin rashes or bug bites. The circuit court noted that the mother and
petitioner were permitted to appear by phone for the hearing due to this alleged excuse and ordered
that they provide medical documentation of their diagnoses. The guardian also proffered that
petitioner tested positive for methamphetamine during a drug screen for a criminal proceeding a
couple of weeks prior to the hearing.

        Prior to the dispositional hearing, the guardian filed a report stating that, according to a
service provider, petitioner had been completely uncooperative with services and wished to
relinquish his parental rights but chose not to for fear of angering the paternal grandmother. The


       3
        Bluefield sits on the border between West Virginia and Virginia. Petitioner lived in
Bluefield, Virginia, while the mother stayed in Bluefield, West Virginia.
                                                 2
report further stated that the paternal grandmother disclosed that petitioner threatened to kill her
and was abusing methamphetamine. The report further stated that petitioner was inconsistent with
scheduling services and failed to provide medical documentation as previously ordered. The
guardian recommended terminating petitioner’s parental rights based upon his failure to complete
BIPP courses, seek mental health treatment, maintain consistent visitation with R.H., fully
participate in parenting and adult life skills classes, maintain negative drug screens, and overall
failure to make progress with his improvement period.

        In September of 2020, the DHHR moved to terminate petitioner’s and the mother’s
improvement periods, citing their lack of compliance. At the dispositional hearing the same month,
the DHHR worker testified that petitioner began BIPP courses in December of 2019 but stopped
participating in all aspects of his improvement period in January of 2020. He also stated that the
mother and petitioner claimed to suffer from the same contagious infections when they were
ordered to have no contact. The worker explained that the mother dropped the domestic violence
protective order against petitioner. As further evidence that neither the mother nor petitioner took
the no-contact order of the court seriously, the worker testified that both obtained jobs at the same
Arby’s fast-food restaurant and that when petitioner was placed on home incarceration and living
at a hotel, the mother obtained a second job at the same hotel. While at the hotel, petitioner was
arrested in August of 2020 when home incarceration officers found methamphetamine in the room
among the mother’s belongings. The mother later admitted to abusing methamphetamine and being
with petitioner. Finally, the worker said that he was unaware whether petitioner was employed but
knew that petitioner lacked stable housing. Next, petitioner’s home incarceration officer testified
that petitioner pled guilty to domestic battery in January of 2020, and the circuit court sentenced
him to one year of home incarceration in June of 2020. She reported that petitioner tested positive
for alcohol and marijuana in January of 2020, methamphetamine and marijuana in February of
2020, and marijuana in June of 2020. The DHHR then called a service provider who stated that
petitioner had been noncompliant with his supervised visitations with R.H.

        Finally, petitioner testified that he was not employed and lived “here and there” in
McDowell County, West Virginia. Petitioner stated that he was unable to obtain low income
housing due to his criminal charges. He said that he did not participate in video visits with R.H.
because he saw “no reason to.” He further stated that he did not complete BIPP classes due to lack
of transportation and that he complied with his parenting and adult life skills classes. Based on the
evidence presented, the circuit court concluded that there was no reasonable likelihood that
petitioner could correct the conditions of abuse or neglect in the near future and that termination
was necessary for the child’s welfare. The circuit court terminated petitioner’s parental rights by
its order entered on October 26, 2020. Petitioner appeals the dispositional order. 4

       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


       4
         The mother’s parental rights were also terminated below. The permanency plan for the
child is adoption by a foster family.
                                                 3
       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
rather than employing a less-restrictive dispositional alternative pursuant to West Virginia Code §
49-4-604(c)(5), such as termination of petitioner’s custodial rights only. Petitioner relies on this
Court’s holding that “[a]s a general rule the least restrictive alternative regarding parental rights to
custody of a child under [W. Va. Code § 49-4-604] will be employed.” Syl Pt. 1, in part, In re R.
J. M., 164 W. Va. 496, 266 S.E.2d 114 (1980). According to petitioner, he complied with some
portions of the requirements of his improvement period, showing that he could one day get “on his
feet” and have his custodial rights restored if he had retained his parental rights. Petitioner contends
that the termination of his custodial rights only would not have seriously threatened the child’s
welfare. Finally, he argues that terminating his custodial rights only would not have required the
court to “exhaust every speculative possibility of parental improvement.” Id.

        We find that the circuit court did not err in terminating petitioner’s parental rights. West
Virginia Code § 49-4-604(c)(6) provides that a circuit court may terminate a parent’s parental
rights upon finding that “there is no reasonable likelihood that the conditions of neglect or abuse
can be substantially corrected in the near future” and that termination of parental rights is necessary
for the child’s welfare. Pursuant to West Virginia Code § 49-4-604(d)(3), a circuit court may
determine that there is no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected when

       [t]he 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 outlined above, the evidence shows that petitioner failed to follow through with a
reasonable family case plan.While it is true that petitioner complied with some aspects of his case
plan, “[i]n making the final disposition in a child abuse and neglect proceeding, the level of a
parent’s compliance with the terms and conditions of an improvement period is just one factor to
be considered. The controlling standard that governs any dispositional decision remains the best
interests of the child.” Syl. Pt. 4, In re B.H., 233 W. Va. 57, 754 S.E.2d 743 (2014). Most
importantly, petitioner failed to address the leading allegation of abuse—his perpetrating domestic
violence. Indeed, petitioner denied any issues of domestic violence to service providers, never

                                                   4
completed domestic violence counseling, and continued to have contact with the mother against
the court’s orders. We have previously held that

       [i]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
       of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator
       of said abuse and neglect, results in making the problem untreatable.

In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted). Additionally,
the record shows that petitioner never completed his BIPP course due to his reincarceration and
failure to stay in touch with the DHHR workers and providers after January of 2020. Furthermore,
petitioner tested positive for methamphetamine during the proceedings and was unemployed and
lacked stable housing by the dispositional hearing. As such, it is clear that that there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect
in the near future.

         Given that this finding was based upon substantial evidence, petitioner’s argument that the
circuit court should have terminated his custodial rights only to allow him time to demonstrate that
he could correct the conditions of abuse and neglect must fail. This is especially true in light of
R.H.’s young age. As we have previously noted,

       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.

State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 257, 470 S.E.2d 205, 211 (1996). As petitioner
cited above and in further support that young children deserve stability and certainty,

               “courts 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 retarded by numerous placements.” Syl. Pt. 1, in part, In re R.J.M.,
       164 W.Va. 496, 266 S.E.2d 114 (1980).

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4. Petitioner claims that the child’s welfare
is not seriously threatened yet admits that he did not complete the requirements of his case plan.
As the conditions of abuse and neglect still existed by disposition, the child remained in danger
and, therefore, we find no error in the circuit court’s finding that termination of petitioner’s
parental rights was necessary for the child’s welfare.

       Finally, we have held that



                                                  5
               “[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, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). As the circuit court properly
found that there was no reasonable likelihood that petitioner could correct the conditions of abuse
and neglect in the near future, petitioner was not entitled to a less-restrictive dispositional
alternative, and, we find no error in the termination of his parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 26, 2020, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: June 7, 2021


CONCURRED IN BY:

Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton




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