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 the circuit court’s order. The 

guardian ad litem (“guardian”), Ernest M. Douglass, filed a response on behalf of the children in 

support of the circuit court’s order and a supplemental appendix. 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 could substantially correct the conditions of abuse 

and neglect in the near future, (3) denying him a less-restrictive dispositional alternative to 

termination of his parental 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 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. 

On December 2, 2016, the DHHR filed a petition alleging that petitioner abused and 

neglected his five children. The petition specifically alleged that 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 abandonment, emotional and psychological abuse, and domestic 

violence. Additionally, the petition alleged a recent domestic violence incident between 

petitioner and J.S. in the presence of their children. 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, respectively, 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. 

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W.S.-1 lived with petitioner and his three oldest 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 preliminary hearing wherein J.S. testified 

that petitioner allowed her regular unsupervised contact 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 further admitted that A.S.-2 was present during an 

incident of domestic violence between her and petitioner. 

On February 3, 2017, the circuit court held an adjudicatory hearing at which it took 

judicial notice of the testimony presented at the preliminary hearing. At the hearing’s close, the 

circuit court found clear and convincing evidence that petitioner allowed the mother of E.S. and 

W.S.-1 to live in his home with him and the children for the past two to three years, despite her 

prior termination of parental rights. The circuit court further found that there were credibility 

issues regarding petitioner due to his admission on the stand that he lied to a Child Protective 

Services worker regarding how often J.S. was staying with him. 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 developed. The circuit court held review hearings on 

May 17, 2017, and July 17, 2017, and it was reported that petitioner was compliant with the 

terms and conditions of his improvement period. 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 proceedings. 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 court granted the DHHR’s motion without making 

specific findings as to termination of petitioner’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 his improvement period, his incarceration related to 

the death of an infant in his care, and his lack of honesty during his improvement period. 

According to the guardian, petitioner informed the DHHR that he had a new 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 petitioner’s deception regarding his new girlfriend was similar to that of 

not informing the DHHR that J.S. was living with him and having unsupervised access to all of 

the children. According to the DHHR, petitioner failed to successfully complete his improvement 

period and the circuit court specifically 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 likelihood that petitioner could substantially 

correct the conditions of abuse and neglect in the near future and that termination of his parental 

rights was in the children’s best interests. The circuit court ultimately terminated petitioner’s 

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

appeals. 

The 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). Upon our review, the Court finds 

no error in the proceedings below. 

First, petitioner argues that the circuit court erred in terminating his parental rights to 

A.S.-1, A.S.-2, and A.S.-3 when the circuit court only adjudicated E.S. and W.S.-1 as abused 

children. Petitioner also argues that the petition failed to sufficiently 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)] requires the [DHHR], in a child abuse 

or neglect case, to prove “conditions existing at the time of the filing of the 

petition . . . by clear and convincing proof.” 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 him weekly from Thursday 

through Sunday. Further, the record indicates that petitioner allowed J.S., whose 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 rights 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. 

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child whose health or welfare is being harmed or threatened by: (A) [a] parent, guardian or 

custodian who knowingly or intentionally inflicts, attempts to inflict 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 the petition sufficiently alleged that A.S.-1, A.S.-

2, and A.S.-3 were abused children and that the adjudication as to those same children was 

proper. 

Next, petitioner argues that the circuit court erred in finding that there was no reasonable 

likelihood that he could substantially correct the conditions of abuse and neglect in the near 

future. We disagree. West Virginia Code § 49-4-604(c)(3) provides that there is no reasonable 

likelihood that the conditions of abuse or neglect can be substantially corrected when “[t]he 

abusing parent . . . ha[s] not responded to or followed through with a reasonable family case plan 

or other rehabilitative efforts[.]” 

Here, the record shows that petitioner failed to comply with the terms and conditions of 

his improvement period because he failed to comply with services, could not provide a suitable 

home for the children, and was incarcerated. Further, 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 incarceration for that infant’s death further prohibited 

him from complying with the terms and conditions of his improvement period. Based on this 

evidence, the circuit court did not err in finding that there was no reasonable likelihood that 

petitioner could substantially correct the conditions of abuse and neglect in the near future. 

Next, petitioner argues that the circuit court erred in terminating his parental rights 

instead of employing a less-restrictive disposition. 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 restrictive 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 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 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 termination of petitioner’s 

parental rights was in the children’s best interests. Pursuant to West Virginia Code § 49-4-

604(b)(6), circuit courts are to terminate parental rights upon these findings. Accordingly, we 

find no error in the circuit court’s termination of petitioner’s parental rights. 

Lastly, petitioner argues that the circuit court erred in terminating his parental rights to 

his oldest child because the child was fourteen years old and West Virginia Code § 49-4-

604(b)(6)(C) requires circuit courts to “give consideration to the wishes of a child fourteen years 

4 
of age or older or otherwise of an age of discretion as determined by the court regarding the 

permanent termination of parental rights.” While petitioner is correct that this statute required 

consideration of the wishes of the 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 Neglect 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 compliance 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). Although it is apparent from the 

record that the circuit court neglected to consider A.S.-1’s wishes, ample evidence was provided 

to support the circuit court’s finding that termination of petitioner’s parental 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 the terms and conditions of his 

improvement period, and was unable to provide a suitable home for 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 221 (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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