In re N.Z., 21-0012

Background

In Oct. 2019 DHHR filed an abuse-and-neglect petition after petitioner (father A.Z.) crashed a vehicle with his child N.Z. inside; the child was hospitalized. DHHR alleged petitioner fell asleep driving due to untreated narcolepsy and tested positive for THC and methamphetamine.
Petitioner admitted daily methamphetamine use at the hospital and said he stopped narcolepsy medication years earlier; DHHR investigation disclosed allegations of domestic violence and ongoing drug use in the home.
Petitioner stipulated at adjudication that his substance abuse and untreated narcolepsy affected his parenting; the court ordered services including parenting, substance-abuse treatment, domestic-violence counseling, random drug screens, and a parental fitness evaluation.
The parental fitness evaluator found petitioner denied abusive conduct and minimized the child’s endangerment, concluded his prognosis for improved parenting was “very poor,” and recommended domestic-violence treatment.
Petitioner largely failed to participate in substance-abuse treatment and domestic-violence counseling during the case (beginning treatment only about a week before disposition); the court denied post-adjudicatory and post‑dispositional improvement periods and terminated petitioner’s parental rights on Oct. 1, 2020. N.Z.’s permanency plan is adoption by maternal grandparents.
Petitioner appealed only the denial of an improvement period and the sufficiency of findings that there was no reasonable likelihood of correction; the West Virginia Supreme Court of Appeals affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether petitioner was entitled to an improvement period	Petitioner: he complied with services and had negative drug screens, so he was entitled to an improvement period	DHHR/Circuit Ct.: petitioner failed to participate in critical services (substance‑abuse treatment and DV counseling) and had a poor prognosis and denial of responsibility	Court: Denied—petitioner failed to prove by clear and convincing evidence he would fully participate; no abuse of discretion in denying improvement periods
Whether circuit court erred in finding no reasonable likelihood of correction in near future	Petitioner: he corrected conditions (negative screens, some participation)	DHHR/Circuit Ct.: petitioner only began treatment a week before disposition, denied abuse, and evaluator found prognosis very poor	Court: Affirmed—substantial evidence supported finding of no reasonable likelihood and need for termination for child’s welfare
Whether petitioner could challenge requirement to attend domestic-violence counseling	Petitioner: he was not adjudicated for domestic violence and thus should not be required to attend DV counseling	DHHR/Circuit Ct.: petitioner never objected to the requirement in the record and failed to preserve the issue; evaluator recommended DV services	Court: Waived—failure to object below forfeits challenge on appeal; requirement was consistent with evaluator’s recommendations
Whether court improperly relied on psychological evaluator without ensuring recommended services	Petitioner: court placed undue weight on evaluator’s prognosis and required services without providing them	DHHR/Circuit Ct.: evaluator’s findings were part of the record and supporting evidence; court has discretion to weigh evidence	Court: No error—appellate court will not reweigh evidence; evaluator’s opinions supported the court’s findings and termination decision

Key Cases Cited

In Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996) (standard of review for factual findings in nonjury cases)
In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (reiterating appellate review standard applied in abuse-and-neglect cases)
In re Charity H., 215 W. Va. 208, 599 S.E.2d 631 (2004) (parent must prove by clear and convincing evidence likelihood of full participation to obtain improvement period)
In re Timber M., 231 W. Va. 44, 743 S.E.2d 352 (2013) (parent’s acknowledgement of the problem is prerequisite to a meaningful improvement period)
In re M.M., 236 W. Va. 108, 778 S.E.2d 338 (2015) (circuit court has discretion to grant or deny improvement periods)
In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (discussing court discretion in improvement-period determinations)
In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980) (termination may be used without less restrictive alternatives when no reasonable likelihood conditions can be corrected)
In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (statutory bases for termination under West Virginia Code § 49-4-604)