STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In Re: C.S. & C.S. 

FILED 

August 31, 2015 

No. 15-0180 (Wood County 13-JA-101 & 13-JA-102) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioners Father C.S.-1, by counsel Wells H. Dillon, appeals the Circuit Court of Wood 

County’s January 27, 2015, order terminating his parental rights to C.S-2 and C.S.-3.1 The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel Christopher S. 

Dodrill, filed its response in support of the circuit court’s order. The guardian ad litem 

(“guardian”), Angela Brunicardi-Doss, filed a response on behalf of the children also in support 

of the circuit court’s order. On appeal, petitioner alleges that the circuit court erred in terminating 

his parental rights without imposing a less-restrictive dispositional alternative and without 

granting post-termination visitation.2 

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 2013, the DHHR filed an abuse and neglect petition against petitioner 

and the children’s mother alleging that he physically and emotionally abused the children and 

committed domestic violence with their mother. The petition detailed an incident in which 

petitioner became angry and violent with one of his children’s half-siblings, who was nine years 

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Because the children and petitioner share the same initials, the Court will distinguish 

them using numbers C.S.-1 for petitioner and C.S.-2 and C.S.-3 for the subject children. The 

circuit court case numbers also serve to distinguish these children. Further, in addition to C.S.-2 

and C.S.-3, the circuit court’s order terminated petitioner’s parental rights, if any he had, to three 

other children who are not his biological issue. Petitioner does not raise any assignment of error 

with regard to those children. Therefore, in this memorandum decision, we do not address the 

circuit court’s order with regard to those other children. 

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We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and 

recodified during the 2015 Regular Session of the West Virginia Legislature. The new 

enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and 

became effective ninety days after the February 19, 2015, approval date. In this memorandum 

decision, we apply the statutes as they existed during the pendency of the proceedings below. 

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old at the time and lived in the home. According to the petition, while the child was digging 

holes as punishment, petitioner grabbed that child, pulled him inside the home, pushed his head 

into a wall with enough force to create a hole therein, and slapped his face. The children’s 

mother then called police, resulting in petitioner’s arrest on domestic battery charges and the 

instant abuse and neglect proceedings. 

In November of 2013, the circuit court held an adjudicatory hearing. At that hearing, 

petitioner stipulated to the domestic violence alleged in the petition. The circuit court adjudicated 

him as an abusing parent. He subsequently received a post-adjudicatory improvement period. 

However, by February of 2014, the circuit court terminated petitioner’s improvement period due 

to noncompliance. The circuit court found that petitioner failed to take a psychological 

evaluation and a parental fitness evaluation; was noncompliant with a substance abuse 

evaluation; was noncompliant with his domestic violence education program; and failed to attend 

parenting and adult life skills classes. In setting the matter for disposition, the circuit court 

permitted petitioner to continue receiving services until that hearing. 

In April of 2014, at the first dispositional hearing, the circuit court found that petitioner 

had participated in certain services since February of 2014, and therefore, it granted him a 

dispositional improvement period. Between August and October of 2014, the circuit court held 

several review hearings to evaluate petitioner’s progress on that improvement period. During this 

time, petitioner appears to have participated in his services. 

In December of 2014, at the conclusion of petitioner’s dispositional improvement period, 

the circuit court held two dispositional hearings. The circuit court heard evidence that petitioner, 

although initially compliant with services, had become noncompliant in recent weeks. Testimony 

established that he missed visits with the children; failed to attend his domestic violence 

education classes and individual therapy as required; and failed to comply with drug screening. 

Based on this evidence and the circumstances of the case, the circuit court found that petitioner 

failed to follow through with his case plan. As such, it concluded that there was no reasonable 

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

future and termination was in the children’s best interests. Therefore, the circuit court terminated 

petitioner’s parental rights to the children. This appeal followed. 

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 

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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). 

On appeal, petitioner assigns error to the circuit court’s order terminating his parental 

rights without imposing a less-restrictive dispositional alternative and without granting posttermination visitation. First, contrary to petitioner’s argument that a less-restrictive dispositional 

alternative existed (wherein he fails to indicate what less-restrictive alternative should have been 

imposed), the circuit court had no option but to terminate his parental rights. West Virginia Code 

§ 49-6-5(b)(3) provides that a situation in which there is no reasonable likelihood that the 

conditions of abuse or neglect can be substantially corrected includes one in which 

[t]he abusing parent . . . [has] not responded to or followed through with a 

reasonable family case plan or other rehabilitative efforts of social, medical, 

mental health or other rehabilitative agencies designed to reduce or prevent the 

abuse or neglect of the child, as evidenced by the continuation or insubstantial 

diminution of conditions which threatened the health, welfare or life of the child. 

Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental 

rights upon findings that there is no reasonable likelihood the conditions of abuse and neglect 

can be substantially corrected and when necessary for the child’s welfare. 

In this matter, the circuit court properly found that petitioner could not substantially 

correct the conditions of abuse and neglect in the near future and termination was necessary for 

the children’s welfare. The circuit court was presented with overwhelming evidence that 

petitioner, although compliant for a portion of the underlying proceedings, was noncompliant 

with services at the outset and again starting approximately one month before the dispositional 

hearing. The circuit court heard evidence that he missed visits with the children; failed to attend 

his domestic violence education classes and individual therapy as required; and failed to comply 

with drug screening. Even petitioner’s counsel admitted that the evidence of noncompliance 

amounted to “a bit of backslide.” We have explained that 

[a]s a general rule the least restrictive alternative regarding parental rights 

to custody of a child under W.Va. Code [§ ] 49–6–5 (1977) will be employed; 

however, courts are not required to exhaust every speculative possibility of 

parental improvement before terminating parental rights 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 re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980). Moreover, we have explained 

that 

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“[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 . . . 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) . . . 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). Given petitioner’s 

demonstration of violence towards children and his failure to comply with rehabilitative efforts, 

we find no error in the circuit court’s termination without the use of less-restrictive dispositional 

alternatives. 

As to petitioner’s argument that the circuit court erred in denying him post-termination 

visitation, we have previously held that 

“[w]hen parental rights are terminated due to neglect or abuse, the circuit 

court may nevertheless in appropriate cases consider whether continued visitation 

or other contact with the abusing parent is in the best interest of the child. Among 

other things, the circuit court should consider whether a close emotional bond has 

been established between parent and child and the child’s wishes, if he or she is of 

appropriate maturity to make such request. The evidence must indicate that such 

visitation or continued contact would not be detrimental to the child’s well being 

and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va. 

446, 460 S.E.2d 692 (1995). 

Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002). We have also held that the 

word “may” is permissive and connotes discretion. See Gebr. Eickhoff Maschinenfabrik Und 

Eisengieberei mbH v. Starcher, 174 W.Va. 618, 626 n.12, 328 S.E.2d 492, 500 n.12 (1985) 

(providing that “[a]n elementary principle of statutory construction is that the word ‘may’ is 

inherently permissive in nature and connotes discretion.”) (citations omitted). In the case sub 

judice, while petitioner argues that post-termination visitation was required due to his bond with 

the children and his participation in services, the circuit court found the children’s best interests 

were served by denying post-termination visitation, based on the underlying acts of violence and 

the children’s need for continuity in caretakers and permanency. We note, too, that petitioner did 

not attend all of his visits with the children during the proceedings below. Following a thorough 

review of the record on appeal, we find that circuit court did not err in denying such posttermination visitation. 

Therefore, we find no error in the circuit court’s January 27, 2015, order, and we hereby 

affirm the same. 

Affirmed. 

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ISSUED: August 31, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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