### STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

FILED In re E.S., W.S.-1, A.S.-1, A.S.-2, and A.S.-3 

### May 14, 2018

EDYTHE NASH GAISER, CLERK No. 17-1130 (Wood County 16-JA-199, 200, 201, 202, and 203) SUPREME COURT OF APPEALS OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Father W.S.-2, by counsel Jeffrey O. Dye, II, appeals the Circuit Court of Wood County’s November 21, 2017, order terminating his parental rights to E.S., W.S.-1, A.S.

- 1, A.S.-2, and A.S.-3. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed a response in support of th e circuit court’s order. The guardian ad litem (“guardian”), Ernest M. Dougla ss, filed a response on behalf of the children in support of the circuit court’s or der and a supplemental appendi x. On appeal, petitioner argues that the circuit court erred in (1) terminating his parental rights to all of the children, (2) finding that there was no reasonable likelihood that he c ould substantially correct the conditions of abuse and neglect in the near future, (3) denying him a less-restrictive dispositional alternative to termination of his pare ntal rights, and (4) failing to consider the oldest child’s wishes in regard to termination of his parental rights.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21 of the Rules of A ppellate Procedure.

On December 2, 2016, the DHHR filed a petition alleging that petitioner abused and neglected his five children. The petition specifically alleged th at petitioner allowed J.S., the mother of E.S. and W.S.-1, to live with him and the children, despite termination of her parental rights to them based upon aba ndonment, emotional and psychol ogical abuse, and domestic violence. Additionally, the petition alleged a recent domestic violence incident between petitioner and J.S. in the presence of their chil dren. At the time the petition was filed, E.S. 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). Additionally, because one of the children and petitioner have the same initials, they will be referred to as W.S.-1 and W.S.-2, respect ively, and because three of the children have the same initials, they will be referred to as A.S.-1, A.S.-2, and A.S.-3, respectively, throughout this memorandum decision.

1W.S.-1 lived with petitioner and his three olde st children, A.S.-1, A.S.-2, and A.S.-3, were primarily in the care of their mother, but had regular visitation with petitioner in his home.

On December 12, 2016, the circuit court held a pr eliminary hearing wherein J.S. testified that petitioner allowed her regular unsupervised c ontact with all five of his children after her parental rights were terminated. She testified that A.S.-1, A.S.-2, and A.S.-3 lived in petitioner’s home every Thursday through Sunday. She furthe r admitted that A.S.-2 was present during an incident of domestic violen ce between her and petitioner.

On February 3, 2017, the circuit court held an adjudicatory heari ng at which it took judicial notice of the testimony pr esented at the preliminary heari ng. At the hearing’s close, the circuit court found clear and convi ncing evidence that petitioner a llowed the mother of E.S. and W.S.-1 to live in his home with him and the child ren for the past two to three years, despite her prior termination of parental rights. The circui t court further found that there were credibility issues regarding petitione r due to his admission on the stand that he lied to a Child Protective Services worker regardi ng how often J.S. was staying with hi m. The circuit court found clear and convincing evidence that the children were abused and neglected and adjudicated petitioner as an abusing parent.

On March 17, 2017, the circuit court granted petitioner’s motion for a post-adjudicatory improvement period and a case plan was develope d. The circuit court held review hearings on May 17, 2017, and July 17, 2017, a nd it was reported that petiti oner was compliant with the terms and conditions of his improvement peri od. However, on July 24, 2017, petitioner was charged criminally in relation to the death of his girlfriend’s infant child. Petitioner remained incarcerated during the remainder of the pr oceedings. On September 15, 2017, the DHHR moved the circuit court to terminate petitioner’s post -adjudicatory improvement period and schedule the case for a dispositional hearing. The circuit co urt granted the DHHR’s motion without making specific findings as to termination of petiti oner’s improvement period, although the improvement period naturally expired on September 17, 2017.

On October 30, 2017, the circuit court held a dispositional hearing at which the DHHR and the guardian recommended that petitioner’s parental rights be terminated based upon his failure to successfully complete the terms of hi s improvement period, his incarceration related to the death of an infant in hi s care, and his lack of honesty during his improvement period. According to the guardian, petitioner informed th e DHHR that he had a ne w girlfriend, but failed to indicate that she and her infant child were living with him four to five nights a week. The circuit court found that petitione r’s deception regarding his new girl friend was similar to that of not informing the DHHR that J.S. was living with him and having unsupervis ed access to all of the children. According to the DHHR, petitioner fa iled to successfully complete his improvement period and the circuit court specif ically found that petitioner failed to complete services and had no suitable home in which the children could live or visit due to damage caused by pigeons, rats, and mice. The circuit court found no reasonable lik elihood that petitione r could substantially correct the conditions of abuse and neglect in the n ear future and that termination of his parental rights was in the children’s best interests. Th e circuit court ultimately terminated petitioner’s

2parental rights in its November 21, 2017, order. 2 It is from the dispositional order that petitioner appeals.

The Court has previously establishe d 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 sh all 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. Th ese findings shall not be set aside by a reviewing court unless cl early erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the revi ewing 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 diffe rently, 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). Upon our review, the Court finds no error in the proceedings below.

First, petitioner argues that the circuit cour t erred in terminating his parental rights to A.S.-1, A.S.-2, and A.S.-3 when the circuit cour t only adjudicated E.S. and W.S.-1 as abused children. Petitioner also ar gues that the petition failed to suffici ently allege the abuse of A.S.-1, A.S.-2, and A.S.-3. We find no merit to these arguments. We have held that

[West Virginia Code § 49-4-601(i)] re quires the [DHHR], in a child abuse or neglect case, to prove “conditions exis ting at the time of the filing of the petition . . . by clear and convincing pr oof.” The statute, however, does not specify any particular manner or mode of testimony or evidence by which the [DHHR] is obligated to meet this burden.

Syl. Pt. 1, In Interest of S.C. , 168 W.Va. 366, 284 S.E.2d 867 (1981).

While petitioner argues that A.S.-1, A.S.- 2, and A.S.-3 lived with their non-abusing mother at the time the petition was filed, evidence was presented that he shared custody of the three children with their mother and that the children resided with hi m weekly from Thursday through Sunday. Further, the record indicates that petit ioner allowed J.S., w hose parental rights had been previously terminated, to be unsupervised with all five of the children on a regular basis for two to three years. Additionally, A.S.-2 witnessed an incident of domestic violence between petitioner and J.S. West Virginia Code § 49-1-201 provides that an abused child is “[a]

2 The mother of A.S.-1, A.S.-2, and A.S.-3 is a non-abusing parent and has full custody of her three children. The parental ri ghts of J.S., the mother of E.S. and W.S.-1, were terminated in 2012 and, according to the DHHR and the guardian, E.S. and W.S.-1 are in a foster home and the permanency plan is adoption therein.

3child whose health or welfare is being harmed or threatened by: (A) [a] pare nt, guardian or custodian who knowingly or intentionally inflic ts, attempts to inflic t or knowingly allows another person to inflict, physical injury or mental or emotional injury, upon the child or another child in the home [.]” (emphasis added). The circuit court found that the allegations of the abuse to all five children as set forth in the petition were proven by clear and convincing evidence and we agree. Based on this evidence, we find that th e petition sufficiently alleged that A.S.-1, A.S.

- 2, and A.S.-3 were abused children and that th e adjudication as to those same children was
proper.
Next, petitioner argues that the circuit court erred in finding that th ere was no reasonable likelihood that he could substantially correct th e conditions of abuse and neglect in the near future. We disagree. West Virg inia Code § 49-4-604(c)(3) provide s that there is no reasonable likelihood that the conditions of abuse or neglect can be substa ntially corrected when “[t]he abusing parent . . . ha[s] not res ponded to or followed through w ith a reasonable family case plan or other rehabilitative efforts[.]”

Here, the record shows that petitioner failed to comply with the te rms and conditions of his improvement period because he failed to comp ly with services, could not provide a suitable home for the children, and was incarcerated. Fu rther, evidence was presented to show that petitioner was dishonest with the DHHR regarding E.S. and W.S.-1’s mother living with him and the children. He was also dishonest about his new girlfriend and her infant child living with him during the instant proceedings. Petitioner’s incarcer ation for that infant’s death further prohibited him from complying with the terms and conditi ons of his improvement period. Based on this evidence, the circuit court did not err in finding th at there was no reasonable likelihood that petitioner could substantially co rrect the conditions of abuse and neglect in the near future.

Next, petitioner argues that the circuit court erred in te rminating his parental rights instead of employing a less-restrictive disposi tion. We disagree and have held that

“[t]ermination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, W. Va.Code [§] 49-6-5 [now West Virginia Code § 49-4- 604] . . . may be employed without the use of intervening less rest rictive alternatives when it is found that there is no reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code § 49-4-604(c)] . . . that conditions of ne glect 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 discussed above, the circuit court found no reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near future. The circuit court also found that term ination of petitioner’s parental rights was in the children’s best inte rests. Pursuant to West Virginia Code § 49-4

- 604(b)(6), circuit c ourts are to terminate pa rental rights upon these fi ndings. Accordingly, we find no error in the circuit court’s termin ation of petitioner’s parental rights.

Lastly, petitioner argues that th e circuit court erred in terminating his parental rights to his oldest child because the child was fourte en years old and West Virginia Code § 49-4

- 604(b)(6)(C) requires circui t courts to “give consid eration to the wishes of a child fourteen years

4of age or older or otherwise of an age of discretion as determ ined by the court regarding the permanent termination of parental rights.” While petitioner is correct that this statute required consideration of the wishes of th e oldest child herein, we do not agree that the failure to consider the same constitutes reversible error under the limited circumstances of this case.
We have previously held that
“[w]here it appears from the record that the process established by the Rules of Procedure for Child Abuse and Ne glect Proceedings and related statutes for the disposition of cases involving children [alleged] to be abused or neglected has been substantially disregarded or frustrated, the resulting order . . . will be vacated and the case remanded for complian ce with that process and entry of an appropriate . . . order.” Syllabus point 5, in part, In re Edward B. , 210 W.Va. 621, 558 S.E.2d 620 (2001).

Syl. Pt. 3, In re Emily G. , 224 W.Va. 390, 686 S.E.2d 41 (2009). Alt hough it is apparent from the record that the circuit court ne glected to consider A.S.-1’s wishes, ample evidence was provided to support the circuit court’s finding that termin ation of petitioner’s pare ntal rights was in the best interests of all of the children, including A.S.-1. Petitioner was incarcerated following charges related to the death of an infant, failed to complete th e terms and conditions of his improvement period, and was unable to provide a suitable home fo r the children. We have often held that “‘[i]n a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided.’ Syl. Pt. 2, State ex rel. Lipscomb v. Joplin , 131 W.Va. 302, 47 S.E.2d 2 21 (1948).” Syl. Pt. 3, In re S.W. , 233 W.Va. 91, 755 S.E.2d 8 (2014). Because termination was in A.S.-1’s best interests, we find no error in the termination of petitioner’s parental rights to this child.

For the foregoing reasons, we find no error in the decision of the circuit court, and its November 21, 2017, order is hereby affirmed.

Affirmed.

ISSUED : May 14, 2018

CONCURRED IN BY :

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

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