STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In re: A.S.-1 FILED 

November 14, 2016 No. 16-0549 (Ohio County 15-CJA-103) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father A.S.-2, by counsel Richard W. Hollandsworth, appeals the Circuit Court 

of Ohio County’s May 2, 2016, order terminating his parental rights to A.S.-1.1 The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, 

filed its response in support of the circuit court’s order. The guardian ad litem (“guardian”), 

Joseph J. Moses, filed a response on behalf of the child also in support of the circuit court’s order 

and a supplemental appendix. Petitioner filed a reply. On appeal, petitioner alleges that the 

circuit court erred in denying his motions for improvement periods and in terminating 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. 

In September of 2015, the DHHR filed an abuse and neglect petition against petitioner 

and the child’s mother, T.S. According to the petition, the mother abused A.S.-1 and the other 

children in the home by chronically abusing drugs and allowing other drug users, including some 

with violent criminal histories, to stay in the home. As to petitioner, the DHHR alleged that he 

was incarcerated after pleading guilty to delivery of a controlled substance and abused his 

biological child, A.S.-1, when he failed to provide for the child physically, emotionally, or 

financially. 

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 the child and petitioner share the same 

initials, we will refer to them as A.S.-1 and A.S.-2, respectively, throughout the memorandum 

decision. Finally, the Court notes that the proceedings below concerned additional children that 

are not petitioner’s biological children. Petitioner raises no assignment of error in regard to these 

children on appeal. Accordingly, our holding in this memorandum decision does not concern the 

circuit court’s rulings regarding these children. 

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During an adjudicatory hearing in October of 2015, petitioner filed a written stipulation 

to the petition’s allegations. As such, the circuit court adjudicated him as an abusing parent.2 

Thereafter, petitioner filed a motion for a post-adjudicatory improvement period. In November of 

2015 and January of 2016, the circuit court held hearings regarding petitioner’s motion. During 

the hearings, the circuit court was also presented with records confirming petitioner’s criminal 

history, including several convictions for violent crimes and drug offenses. Additionally, both 

petitioner and his parole officer testified that petitioner might be paroled in May of 2016. 

Petitioner further testified that he would comply with the terms of an improvement period and 

presented several certificates of completion from rehabilitative programs completed during his 

various incarcerations. Some of the programs addressed parenting and drug abuse issues. 

However, petitioner also admitted that some of the programs were completed during a prior 

incarceration and that he had returned to a life of crime and substance abuse upon his release. 

Petitioner also testified to his history of repeated parole violations and rule infractions while 

incarcerated. Further, petitioner testified that he had two older children who were raised by other 

individuals as a result of his repeated incarcerations. Additionally, the circuit court was presented 

with the reports resulting from petitioner’s various psychological evaluations that indicated a 

poor prognosis for improvement and a likelihood of reoffending. In February of 2016, the circuit 

court issued an order denying petitioner’s motion. 

In March of 2016, the circuit court held a dispositional hearing. During the hearing, 

petitioner moved for an improvement period as disposition, although he presented no evidence in 

support. Petitioner also moved the circuit court to defer its decision until his next parole hearing, 

scheduled for April of 2016, which the circuit court agreed to do by asking for proposed findings 

of fact and conclusions of law so that it could render its decision by order after the parole 

hearing. The circuit court noted, however, that even if petitioner were paroled, both the DHHR 

and the guardian would still oppose an improvement period based upon his long history of 

repeated criminal offenses and drug use upon his release from incarceration. Following the 

dispositional hearing, petitioner was paroled on April 14, 2016. However, in its dispositional 

order entered on May 2, 2016, the circuit court found that there was no reasonable likelihood 

petitioner could substantially correct the conditions of abuse and neglect and that termination of 

petitioner’s parental rights was necessary for the child’s welfare. As such, the circuit court 

terminated petitioner’s parental rights. It is from this order that petitioner appeals. 

The Court has previously established the following standard of review: 

2

The circuit court technically adjudicated petitioner as “an abusive and neglectful parent” 

and found that A.S.-1 was an “abused and neglected child.” However, West Virginia Code § 49­

1-201 defines an abusing parent as “a parent . . . whose conduct has been adjudicated by the 

court to constitute child abuse or neglect as alleged in the petition charging child abuse or 

neglect.” Because the definition of “abusing parent” encompasses parents who have been 

adjudicated of abusing or neglecting a child, and because West Virginia Code § 49-1-201 does 

not contain a definition for “neglectful parent,” we will use the term “abusing parent” in this 

memorandum decision. 

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“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). 

First, the Court finds no error in the circuit court’s denial of petitioner’s motions for a 

post-adjudicatory improvement period or an improvement period as disposition. According to 

petitioner, “each reason for terminating [his] parental rights stems from his incarceration” and his 

release on parole remedied those issues such that he was entitled to an improvement period. 

Petitioner further argues that he testified to his willingness to comply with services during an 

improvement period and also to his history of completing rehabilitative programs while 

incarcerated. According to petitioner, this evidence was sufficient to satisfy his burden to obtain 

an improvement period. The Court, however, does not agree. Importantly, petitioner’s argument 

that the reasons for terminating his parental rights stemmed from his incarceration is misplaced 

and does not accurately reflect the record. At disposition, the circuit court specifically found that 

termination was based on petitioner’s “propensity for criminal activity, his involvement with 

drugs, his violent tendencies, [and] his inability to provide for his child’s needs.” As such, it is 

clear that petitioner’s release on parole did not remedy the underlying conditions of abuse and 

neglect present in this matter. 

Moreover, while his completion of rehabilitative programs while incarcerated is laudable, 

petitioner ignores the fact that he completed many of these programs while previously 

incarcerated. Further, petitioner ignores the fact that although these services were designed to 

remedy issues with drug abuse, he failed to benefit from the same. Specifically, the record on 

appeal shows that petitioner admitted that he completed many of these courses during his last 

incarceration, but that he returned to committing crimes and abusing drugs upon his release. 

Ultimately, despite the services he received, petitioner was again incarcerated for delivery of a 

controlled substance. In fact, petitioner testified to having previously undergone inpatient drug 

rehabilitation in order to avoid revocation of parole, but ultimately relapsing and violating his 

parole prior to completing the program. This evidence clearly shows petitioner’s inability to 

comply with services offered to remedy the underlying conditions of abuse and neglect. 

Pursuant to West Virginia Code §§ 49-4-610(2)(B) and (3)(B), a circuit court has 

discretion to grant an improvement period when the parent “demonstrates, by clear and 

convincing evidence, that the [parent] is likely to fully participate in the improvement period.” 

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Indeed, we have often noted that the decision to grant or deny an improvement period rests in the 

sound discretion of the circuit court. See In re: M.M., 236 W.Va. 108, 778 S.E.2d 338 (2015) 

(stating that “West Virginia law allows the circuit court discretion in deciding whether to grant a 

parent an improvement period”); Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 

(1996) (holding that “[i]t is within the court’s discretion to grant an improvement period within 

the applicable statutory requirements”). We have also held that a parent’s “entitlement to an 

improvement period is conditioned upon the ability of the parent/respondent to demonstrate ‘by 

clear and convincing evidence, that the respondent is likely to fully participate in the 

improvement period . . . .’” In re: Charity H., 215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004). 

While it is true that petitioner testified to his willingness to comply with the terms and conditions 

of an improvement period below, the evidence overwhelmingly indicated that petitioner would 

not be able to comply with such terms or implement any changes sufficient to remedy the 

conditions of abuse and neglect. 

As noted above, petitioner testified to an extensive history of rehabilitative programs that 

failed to remedy the conditions of abuse and neglect. Moreover, petitioner’s psychological 

evaluations indicated a prognosis of “guarded” in terms of his improvement, based upon his 

“violent and aggressive legal infractions, history of substance abuse, problems with anger 

control, psychological history, history of institutional misbehavior . . . , lapses in social 

judgment, and lack of insight into the nature of and circumstances surrounding his behaviors and 

attitudes that contribute to his legal problems.” One evaluation specifically noted that petitioner 

“is likely at an increased risk to reoffend . . . .” As such, this evidence clearly established that 

petitioner was unlikely to fully comply with the terms of an improvement period. Moreover, we 

have previously held as follows: 

“[C]ourts 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. As such, we find no error in the circuit 

court’s denial of petitioner’s motions for improvement periods. 

Finally, the Court finds no error in the circuit court’s termination of petitioner’s parental 

rights. In support of this assignment of error, petitioner argues that he “did nothing from the birth 

of the child . . . that could possibly be classified as an act of abuse or neglect.” In support of this 

argument, petitioner attempts to distinguish his abuse and neglect of the child as “passive,” due 

to his incarceration. According to petitioner, his “passive” abuse and neglect of the child is 

different from a parent in the home who engages in “active” abuse and neglect. The Court, 

however, does not agree with petitioner’s characterization of the allegations of abuse and neglect 

in this case. 

Pursuant to West Virginia Code § 49-1-201, a neglected child is one 

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[w]hose physical or mental health is harmed or threatened by a present refusal, 

failure or inability of the child’s parent, guardian or custodian to supply the child 

with necessary food, clothing, shelter, supervision, medical care or education, 

when that refusal, failure or inability is not due primarily to a lack of financial 

means on the part of the parent, guardian or custodian. 

According to petitioner, his abuse and neglect of the child was not active because he was 

prevented from financially supporting the child due to his incarceration. Petitioner further argues 

that family courts routinely suspend child support obligations for incarcerated parents because 

they cannot afford to meet those obligations. Petitioner’s argument, however, fails to 

acknowledge that he failed to properly supervise the child because of his direct actions that led to 

his incarceration. As a result of his failure to properly supervise the child, A.S.-1 was subjected 

to drug use and inappropriate individuals, among other issues. As such, the Court notes that 

petitioner’s actions in this proceeding constituted neglect under the statutory definition of that 

term. 

Moreover, the circuit court was presented with sufficient evidence upon which to find 

that there was no reasonable likelihood that petitioner could substantially correct the conditions 

of abuse and neglect in the near future. Specifically, the circuit court admitted evidence of 

petitioner’s lengthy criminal history that included convictions for battery, malicious wounding 

by use of a firearm, battery on an officer, unlawful assault, and domestic battery. Additionally, 

petitioner was convicted of wanton endangerment with a firearm in 1998 and was sentenced to a 

recidivist life sentence for that crime.3 According to petitioner, the circuit court erred in relying 

on his criminal history in reaching disposition because it was entitled to consider only crimes 

governed by West Virginia Code § 49-4-605 and because this Court has held that “[a] biological 

parent of an infant child does not forfeit his or her parental right to the custody of the child 

merely by reason of having been convicted of one or more charges of criminal offenses.” Cecil 

T, 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 2. The Court finds, however, that petitioner’s 

argument is without merit. 

To begin, the circuit court is not prohibited from considering crimes outside the scope of 

West Virginia Code § 49-4-605 in an abuse and neglect proceeding. To the contrary, petitioner’s 

criminal history and, specifically, his history of reoffending, were highly relevant to the issues of 

abuse and neglect upon which the petition was based. The DHHR alleged that petitioner failed to 

provide for the child at issue due to his incarceration, and petitioner’s lengthy criminal history 

was directly relevant to his propensity for committing additional crimes upon his release and 

being re-incarcerated. In fact, petitioner even admitted that he has two older children, now adults, 

that were raised by other individuals because of his repeated incarcerations. As such, it is clear 

that petitioner’s history of repeated incarcerations was directly relevant to whether petitioner 

could correct the conditions of abuse and neglect at issue, namely remaining free of incarceration 

in order to properly provide for his child. Further, contrary to petitioner’s argument on appeal, 

the circuit court did not find that he forfeited his parental rights because of his past convictions. 

Instead, the circuit court terminated petitioner’s parental rights, in part, upon evidence that 

3

Petitioner was later released on parole. 

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petitioner would repeat his past behavior; that is to say that petitioner would reoffend and again 

be subject to incarceration while leaving his child without appropriate care. 

More importantly, however, is the fact that the circuit court based termination of 

petitioner’s parental rights upon many factors beyond petitioner’s lengthy criminal history, 

including his equally lengthy history of substance abuse. According to the record on appeal, 

petitioner began abusing drugs and alcohol at the age of ten or eleven and his usage escalated 

over time. While petitioner argues that he obtained placement in the Miracles Happen 

rehabilitation program upon his release on parole and that the program will address his issues of 

substance abuse, the record on appeal also established that petitioner “has been through the 

Miracles Happen program in the past, but it has failed to remedy his problems, as he began to use 

drugs again thereafter.” Accordingly, it is clear that the circuit court had overwhelming evidence 

upon which to base its findings that there was no reasonable likelihood that petitioner could 

substantially correct the conditions of abuse and neglect and that termination of petitioner’s 

parental rights was necessary for the child’s welfare. According to West Virginia Code § 49-4­

604(b)(6), circuit courts are directed to terminate parental rights upon such findings. As such, 

under the specific facts of this case we find no error in the circuit court terminating petitioner’s 

parental rights instead of imposing a less-restrictive dispositional alternative. 

For the foregoing reasons, we find no error in the circuit court’s May 2, 2016, order, and 

we hereby affirm the same. 

Affirmed. 

ISSUED: November 14, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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