1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re C.S.

No. 22

- 59 2 ( Kanawha County 22

- JA

- 73 )



### MEMORANDUM DECISION

Petitioner Father J

. S

. 1 appeal s the Circuit Court of Kan awha County’s June 30, 2022,

order terminati n g h is parental r ights to C .S

. 2 Upon our review, we have determined that oral argument is unnecessary and that a memorandum decision affirming the circuit court ’s order is appropriate. See W. Va. R. App. P. 21 (c)

.

In February of 2022, the DHHR filed a petiti o n alle g ing that petitioner neglected and

psy chologically abused C.S. According to the petition, pe titioner frequently belittled the child,

re peatedly referring to him as “ pussy ” and “ retard, ” and also telli ng the child he will “ be nothin g when he grows up ” a nd t h at he should “ leave and never come back. ” The petition furt her allege d

t hat the child disclosed ph ysical abuse by petitioner

. Finally, the petition alleged that pet itioner

n eglect ed the chi ld due to subst anc e use , citing C.S. ’ s disclos ure t hat pet i t i oner is “ t he m ost
violent and aggressive when drunk ” and drinks “ th ree to fo ur times weekly. ” The DHHR later amended the petition to in clude allegation s regarding petitioner ’ s conduct during the proceedings

. Thereafter, petitioner waived t he preliminary h e arin g

.

An adjudicatory hearing was held on May 1 1, 2022

. A DHHR worker testified that

,

ro ugh l y two we eks after the p reliminary hearing, petitioner tested positiv e for amphetamines and methamphetamines and that he was then offered in

- patient and out

- p ati ent t reatment but declined

both

. Petitioner failed to respond to at least five other testing requests an d te sted positive for

1 Petitioner app ears by counsel Rebecca S tollar Johnson

. The West Vir ginia Depa rtment
of Health and Human Resources (“DHHR” ) appears by Attorney General Patrick Mo rrisey and

As s istant Attorne y Gen e ral H e athe r L

. Olcott

. Jennifer N. Taylor appears as the child’s guardia n ad litem.

2 We use initials w h ere ne cessary t o protect the identities of those involved in this ca se. See W. Va. R. App. P. 40(e). 

### FILED May 1 6 , 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEA LS

OF WEST VIRGINIA2 met hamphetamines again on A p ril 20 , 2022

. The court also he ard testimo ny from the child and petition er, after which t he c ircui t co urt a djudicated petitioner as an abusing and neglectful parent.

O n May 19, 2022, less than two weeks fro m the adjudicatory hearing

, the DHHR fi led a

motion to cease petitioner ’ s servic es beca use p etitioner “ is uncoo perative

. . . and continues to

se n d h aras s ing text messages to service providers. ” T he m otion reference d several instanc es of

text communications bet we en petitioner and var i ous DHHR wor kers and providers, includ ing

messages from petitioner stating the following: “ I’m not participatin g. Yo u gu ys c a n keep that

soft ass ra t kid. He doesn ’ t deserve to have my l ast na me ” ; “ I ’ m not jumping through st i pid [sic]

hu man tri ck hoops taking meaningless classes that I ’ ve probably already taken ” ; “ if he ’ s that soft, he doesn ’ t belong here ” ; and “ ta ke hi s bi tch a ss to foster care

. ” The motion also reference d

the fact that petitioner sent ano ther DHHR worker ten harassing text mes sages in one day

. The motion was granted on a n emergen cy basis until t he parties could c o n vene for a hearing

.

On May 31, 2022

, th e ci r c uit court hel d a h earing to address the motion to cease serv ices

, noting that petitioner “ failed to respond to th e [ m] ot ion; failed to appear at the hearing after receiving proper notice ; an d failed to otherwise cooperate with his c ounsel an d the Dep artm e nt. ” Ultimately, the court grant ed th e D HHR ’ s motion to cease services and granted the guardian ’ s motion prohibit i ng peti tioner from h aving any contact with the child and the child ’ s mother . The order also prohibited petitioner from speaking direc t ly with any DHHR c ase workers and directed

a ll co mmunication between p et itioner and the DHHR to be made through petitioner ’ s counsel. Despite these extreme measure s, the DHHR filed a petition for con tempt on June 9, 2022, based on petitioner ’ s cont inu ed ha r ass ment of DHHR workers. Three da ys prior to the petition ’ s filing

, petitioner was criminally charged with intimidation of a public official based on this cond uct

. J ust tw o days after his cri minal charge, petitione r conti nued harassing a DHHR worker via te xt

. Th e p e tit ion also allege d that he violated the confid entiality of the proc eedings by sending paragraphs of messages to a friend of the child ’ s mother with conf idential in formation about th e

case , stating

, “ I just wanted to le t you know the quali ty o f t he indi v idual I know you have been

close to in your life. ”

The circuit court reconvened in this matter on June 22 , 2022 , for a disp osition hearing. During the he aring , the DHHR presented evidence that petitioner refused to participate with the

ser vices o ff e red a nd vi olated the cour t ’ s orders by thre atening DHHR personne l and s haring

confidential in formation about the case

. The court also found that petitioner ’ s te xt messages

“ reflected anger and disrespect towards his son

, ” which “ demonstrated that he was n o t

co m mitted to a health y relations hip with his child, and had m a de no efforts to establish one

. ” After taking testimony an d evidence, the court concluded that t here was no reasonable likelihood that petitioner could substantially correct the cond itions of abus e and negle ct in the near future

and or dered tha t te rminat in g petitioner ’ s pa rental rights to C.S. was necessary for the w elfare of

the child

. 3 It is from this order th at p etitioner appeals.

3 The m other ’ s p arental right s were also te r m ina t ed. T he pe r ma n ency p lan for C.S. is

g uardianship in his cu rrent placement

.3 On appeal from a final order in an abuse and neg lect pr oc e edin g , this Court reviews the

circuit cour t ’s findings of fact f o r cl ear error and its conclusions of law de novo. Syl. Pt. 1, In re

Cecil T

., 228 W. Va. 89, 717 S.E.2d 8 73 (2011). First, petitioner a rgues that the DHHR failed to

make reasonable efforts t o reu n ify the family. Petitioner argues tha t the exceptions liste d in W es t

V irginia Code § 49

- 4

- 604 (c) (7) absolving the DHHR of its responsibility to make s uch effort s do

no t apply to this case ; therefore, petitioner argues that the DHHR “ failed to make any eff o rt, let

alone ‘ reas onable ’ eff orts. ”

Petitioner is c orre ct in asserting th at the DHHR is required , in most circumstances, “ to

prov ide supportive se rvices in an effort to remed y circu mstances detrimental to a child. ” W. Va. Code § 49

- 4

- 601(d). H ow e ver, i t i s abundan t ly cl ear from the re cord that any claim th at the

DHHR “ failed to make any effort ” has n o merit. Here, the DHHR offer ed petitioner numerous services, yet petitioner not only expressly refused to coop erate with the services offered, he we n t

so far as to har a ss th e DHHR personnel responsib le for assi sting him in completin g those

servi ces to the point that he was charged cr iminally for his conduct. The record is replete with

pet itioner ’ s anger , outbur sts, threats, and d ef iance with the DHH R w orke r s an d service provi ders, thus showing his refusal to par ticipate in a reasonab le plan designed to reunify the family.

Petitioner ’ s argument that the DHHR “ made no effort to attempt to accommodate ” him is

also without merit , as the record shows th at the D HHR immediate l y com plied with his request s for accommoda tion

, such as changing the location of his services, only for petitioner to continue

in h is lack of cooperation. As the circuit cour t noted, petitioner simply refused to attend services,

trav e l e d o ut of t own for e x tende d stays without noti fying workers, an d, eventually, stat ed that he

was no longer participat ing in certain services

. Simply put , there is no basis in the record for any of petitioner ’ s contentions that the DHHR did not make reason ab l e ef f orts to reuni f y the family, given that the DHH R offered extensive accommodation in the face of p etitioner ’ s openly hostile actions. As such, he i s entitled to no relief.

Next, i n hi s second and final assignment of e rror , petition er argues that t h e c ircu i t co urt
erred in t e r minating his parental rights “ when the least restrictive alternative was termination of custodial rights

. ” 4 Petition er ’ s ar gument here is lar gely based on C.S. ’ s inability to inherit

benefits from him and hi s unsupported asserti on that term inating p a r ent a l righ ts to a si xteen

year

- old chil d “ flies in the face of public policy. ” Not only is there no authority for a parent being permitted to retain their parental rights simply because of a child ’ s advanced age, petitioner ignore s t he fac t tha t C.S. bei n g si x teen ye ars old at the time of disposition require d the court to give consideration to his wishes. See W. Va. C ode § 49

- 4

- 604 ( c) (6) (C) ( “ [T]he court shall gi ve conside ration to the wishes of a child 1 4 years of age or older

. . . re g ardi n g th e

perm ane n t te r minatio n of paren tal rights. ” ). Throughout the case and through C.S. ’ s own testimony , C.S. consisten tly express ed his f ear of his father. When ask ed by the court if he

4 Petitioner errone ously allege s that termination was inappropriate “when the least

restr ictive alternative had already been ac compl ished through reli nquishmen t o f cus todial

r igh t s

. ” T here i s n o evidence in the record that petition e r relinquish ed his cu stodial r ights to t he

child

.4 want ed to return to live with his father prior t o turnin g eig ht e en , C .S. responded “ no. ” Additionally, t he circuit court made the findings necessary for termination of p et itioner ’ s parental rights upon ample evidence. See W. Va. Code § 49

- 4

- 604(c)(6) (perm itting a circuit

court to terminate parental ri ghts upon find in g tha t the re is no r easo n able likeli hood that the

conditions of n e glect can be substantially corrected in the near future and when nec essary for the child’s welfare); see also Syl. Pt. 5, In re Kristin Y. , 227 W. Va. 558, 712 S.E.2d 55 (201 1) (permi tting t e rmin a tion of paren t al r i ghts “without the use of i n tervening less restrictive

alternatives when it is found that there is no r easonab le likelihood . . . that conditions of neglect

or abuse can be substantially corrected”). Accordingly, pet itioner i s ent it l ed t o no re lief.

F or t h e foregoing reasons, we find no error in the deci sion o f the circuit court, an d its

June 30

, 202 2, order is h ereby affirmed.

Affirmed.

ISSUED : May 16, 2023

CONCURRED IN BY :

Chief Justice Elizabeth D. Walker

Justice Ti m Arms tead

Ju stice J o hn A

. Hut chiso n
Ju s tice William R. Wooton Justice C. Haley Bunn