STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In Re: J.T. and J.T.                                                              FILED
                                                                                 June 2, 2014
No. 13-1232 (Jackson County 12-JA-52 and 12-JA-53)                           RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Father filed this appeal by his counsel, D. Shane McCullough, from an order
entered November 12, 2013, in the Circuit Court of Jackson County, which terminated his
parental rights to five-year-old J.T.-1 and four-year-old J.T.-2.1 The guardian ad litem for the
children, Laurence W. Hancock, filed a response in support of the circuit court’s order. The
Department of Health and Human Resources (“DHHR”), by its attorney, William P. Jones, also
filed a response in support of the circuit court’s order. Petitioner argues that the circuit court
erred when it failed to extend his improvement period and when it based its termination of his
parental rights on his alleged failure to obtain suitable housing and on his low intellectual
functioning.

        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 December of 2012, a Child Protective Services (“CPS”) worker visited the family’s
home after the DHHR was alerted that J.T.-1 came to school dirty and dressed in filthy clothes,
suffered from chronic diaper rashes, and was almost non-verbal. During the CPS worker’s visit
to the home, she observed unsafe and unsanitary conditions. For instance, she reported that there
was a dilapidated porch with trash and metal surrounding it; a living room heated entirely by a
wood burning stove surrounded by clothing, trash, paper, and toys; countless cockroaches
crawling on the walls and scattered across the floor; several soiled diapers on the floor where the
children walked barefoot; soiled linens on the bed that the entire family shared; dishes
overflowing the kitchen sink; a refrigerator with mildew and moldy food; and a non-working
bathtub in the filthy bathroom. When the CPS worker informed petitioner that she would need to
implement a protection plan, he threatened to kill her. The DHHR filed an abuse and neglect
petition against the children’s parents shortly thereafter. The petition alleged that, based on the
CPS worker’s observations and experience at the home, the home was unsafe and unsuitable for
the children. Both parents waived their rights to a preliminary hearing.

1
  Because the children in this case have the same initials, we have distinguished each of them
using numbers 1 and 2 after their initials in this Memorandum Decision. The circuit court case
numbers also serve to distinguish each child.

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        At the adjudicatory hearing in January of 2013, both parents stipulated to their abuse and
neglect of their children by exposing them to deplorable conditions in the home unfit for
habitation, that they did not provide the children with appropriate hygiene and grooming, and
that they lack the skills to appropriately parent the children. Petitioner also stipulated that he has
significant issues with impulse and anger control and that he lacks the tools and self-awareness
necessary to deal with these issues. The circuit court granted both parents a six-month post­
adjudicatory improvement period with directions to submit to a psychological evaluation. The
circuit court also directed petitioner to participate in services recommended to develop
appropriate parenting skills, learn the developmental needs of each child, and appropriately
modify his behaviors to address their current and future physical and emotional needs. Petitioner
was also required to learn how to appropriately establish a responsible, healthy, and appropriate
home to best meet the needs of the children.

       In September of 2013, petitioner filed a motion to extend his improvement period. In
October of 2013, the DHHR filed a motion to terminate petitioner’s improvement period and
another motion to terminate his parental rights. On October 23, 2013, the circuit court heard
testimony and arguments on these motions. After finding that the abusive and neglectful
conditions of the original petition still existed and that neither parent significantly improved
despite their efforts through services, the circuit court denied petitioner’s motion to extend his
improvement period and terminated both parents’ parental rights by order entered on November
12, 2013. Petitioner now brings this appeal.

       This Court has previously established 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).

        Petitioner raises three assignments of error. First, petitioner argues that the circuit court
erred in denying his motion for an extension of his improvement period. Petitioner asserts that he
successfully completed his improvement period. Second, petitioner argues that the circuit court
erred in terminating his parental rights based, in part, on finding that he had not obtained suitable
housing for the children. Petitioner asserts that this finding was in error because no one from the


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DHHR officially inspected the new home. Lastly, petitioner argues that the circuit court’s
termination of his parental rights was in error because it was based, in part, on his borderline low
functioning and the unlikelihood that petitioner would achieve significant capacity to properly
provide and care for his children.

        Upon our review of the record, we find no error by the circuit court in its decision to deny
petitioner’s motion for an extension of his improvement period or to terminate his parental
rights. West Virginia Code § 49-6-12(g) directs as follows:

       A court may extend [an] improvement period . . . for a period not to exceed three
       months when the court finds that the [subject parent] has substantially complied
       with the terms of the improvement period; that the continuation of the
       improvement period will not substantially impair the ability of the [DHHR] to
       permanently place the child; and that such extension is otherwise consistent with
       the best interest of the child.

At the same time, West Virginia Code § 49-6-12(f) directs:

       When any [subject parent] is granted an improvement period pursuant to the
       provisions of this article, the [DHHR] shall monitor the progress of such person in
       the improvement period. When the [subject parent] fails to participate in any
       service mandated by the improvement period, the [DHHR] shall initiate action to
       inform the court of that failure. When the [DHHR] demonstrates that the [subject
       parent] has failed to participate in any provision of the improvement period, the
       court shall forthwith terminate the improvement period.

We also bear in mind that West Virginia Code § 49-6-5(b) provides a non-exclusive list of
circumstances that shall be considered those in which there is no reasonable likelihood that the
conditions of abuse and neglect can be substantially corrected. Included are circumstances in
which the subject parent has not responded to or followed through with a reasonable family case
plan and circumstances in which the subject parent has emotional illness, mental illness, or
mental deficiency of such nature as to render the parent incapable of exercising proper parenting
skills or to adequately improve these skills.

        Our review of the record reveals that despite petitioner’s participation with services,
petitioner failed to apply any of his efforts towards properly caring for his children. The record
shows that petitioner acquired a mobile home towards the end of his improvement period, but
had not begun to live there. At the dispositional hearing, petitioner testified that he still needed to
complete some work on it, such as replace a whole section of the bathroom floor. During the
course of the proceedings, both parents lived in a motel room where visitations with the children
sometimes took place. The DHHR’s motions to terminate petitioner’s improvement period and to
terminate his parental rights assert that visitation with the children had to be suspended due to an
infestation of bed bugs in the parents’ filthy and noxious motel room. At the dispositional
hearing, the family’s caseworkers testified that despite several months of services, petitioner
failed to recognize and respond to the needs of his children during visits. For instance, petitioner
did not recognize when his children needed to have their soiled diapers changed. On another


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occasion, petitioner was observed grabbing an arm of one of the children while threatening to
whip the child with a belt; and, when asked about the state of the motel room, petitioner’s excuse
was that he did not have enough money to buy trash bags.

        This evidence supports the circuit court’s decision to deny petitioner’s motion for an
extension of his post-adjudicatory improvement period. Even though petitioner asserted that he
had another home for his family, his disorderly and unkempt motel room and his attitude toward
it did not demonstrate that he would have been able to provide a safe and suitable environment in
the new home. The evidence also supports the circuit court’s findings and conclusions that there
was no reasonable likelihood that conditions of abuse and neglect could be substantially
corrected in the near future, and that termination was necessary for the children’s welfare.
Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental
rights upon such findings.

       For the foregoing reasons, we affirm.

                                                                                       Affirmed.


ISSUED: June 2, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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Case Information

Case Name: In Re: J.T. & J.T.

Court: wva

Year: 2014-06-02

This case can be cited as precedent.