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In re A.S.-1

Supreme Court of West Virginia

June 19, 2017

In re: A.S.-1, L.S., A.S.-2, B.C., B.R., C.R., I.S., D.S., and M.S.

         (Mercer County 15-JA-109-WS, 15-JA-110-WS, 15-JA-111-WS, 15-JA-112-WS, 15-JA-114-WS, 15-JA-115-WS, 15-JA-116-WS, 15-JA-117-WS, & 15-JA-118-WS)

          MEMORANDUM DECISION

         Petitioner Father A.S.-3, by counsel Gerald Linkous, appeals the Circuit Court of Mercer County's December 5, 2016, amended order terminating his parental, custodial, and guardianship rights to four children (A.S.-1, L.S., A.S.-2, and B.C.) and his custodial rights to two other children (B.R. and C.R.).[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel S.L. Evans, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Ward Morgan, filed a response on behalf of the children in support of the circuit court's order.[2] On appeal, petitioner argues that the circuit court erred in terminating his rights to the children without providing him a meaningful improvement period.

         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. However, as discussed below, this matter is remanded to the circuit court for entry of an amended order providing findings of fact and conclusions of law as to the disposition of three of the subject children-I.S., D.S., and M.S.

         In July of 2015, the DHHR filed an abuse and neglect petition alleging that petitioner abused alcohol; was violent with one of the children's mothers while the children were present; was arrested in the Commonwealth of Virginia for obstruction of justice, resisting arrest, obscenity, public intoxication, disorderly conduct, and battery; permitted two of his children to miss excessive days at school; and, while intoxicated, gave one of the children a knife with instructions to "cut" the other children.

         In October of 2015, the circuit court held an adjudicatory hearing. At that time, petitioner stipulated to the allegations in the petition. The circuit court accepted the stipulations, and petitioner was adjudicated as an abusing parent. Thereafter, petitioner agreed to submit to a psychological evaluation. It is unclear from the record on appeal when petitioner submitted to a psychological evaluation, but a report from that evaluation was produced.[3]

         In February of 2016, the circuit court granted petitioner's motion for a post-adjudicatory improvement period. In addition to other terms of his improvement period, petitioner was directed to follow the recommendations set forth in his psychological evaluation report. Under the terms of his improvement period and the recommendations of his psychological evaluation report, petitioner was to submit to drug screens; avoid alcohol consumption; participate in batter's intervention classes; participate in parenting and adult fitness classes; and not to violate any terms of his criminal proceedings.[4] Shortly after his improvement period began, petitioner violated his home incarceration due to alcohol consumption and other alcohol-related issues, and he was incarcerated in April of 2016. He appears to have been released from incarceration the following month.

         In August of 2016, the circuit court held a dispositional hearing. At that hearing, a probation officer testified that petitioner's criminal bond was revoked for violation of the terms thereof, and he was incarcerated. Petitioner's psychologist testified that petitioner was presently unfit to parent his children. According to the psychologist, petitioner would require treatment for his alcohol addiction and "a long-term psychotherapeutic approach . . . to address the symptoms of a personality disorder." The psychologist further testified that he did not think petitioner would be successful in intensive psychotherapy given his condition. The psychologist explained that he "can say that the prognosis is poor, that the treatment requirements are extensive, [and] that [petitioner's] history would reflect an absence of an ability to stick with anything that's difficult or challenging." Due to the length of the hearing, the circuit court continued the matter for a second dispositional hearing at a later date.

         In October of 2016, the circuit court held the final dispositional hearing. A home incarceration officer testified that petitioner was on home incarceration for approximately seven months in 2015 and 2016, and he had several violations related to alcohol consumption. In March of 2016, petitioner tested positive for alcohol twice, and three cans of alcohol were found in his home in April of 2016. The home incarceration officer stated the petitioner was removed from home incarceration and incarcerated due to those violations. A DHHR worker testified that petitioner was arrested for public intoxication in late August of 2016 in Virginia. Further, in his testimony, petitioner admitted to having alcohol and anger problems. He stated that he needed help and wanted to be in his children's lives.

         The DHHR and guardian recommended termination of petitioner's rights to the children. Petitioner argued that the DHHR failed to make reasonable efforts to provide him services after he was released from incarceration following his arrest in April of 2016. For that reason, petitioner moved for additional time to continue on an improvement period. In denying petitioner's motion for more time, the circuit court found that the DHHR provided petitioner with services until such time as he violated the terms of home incarceration and was incarcerated, thus violating the terms of his improvement period. The circuit court entered a dispositional order in November of 2016 terminating petitioner's parental, custodial, and guardianship rights to four children (A.S.-1, L.S., A.S.-2, and B.C.) and his custodial rights to two other children (B.R. and C.R.).[5] On December 5, 2016, for reasons not relevant to this appeal, the circuit court entered an amended dispositional order. Both orders listed the names and case numbers for nine children-A.S.-1, L.S., A.S.-2, B.C., B.R., C.R., I.S., D.S., and M.S. It is from the amended dispositional order that petitioner now 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).

         On appeal, petitioner argues that the circuit court erred in terminating his parental rights to the children when he was not provided a meaningful improvement period. In support of his argument, petitioner relies upon our holding in State ex rel. W.Va. Dept. of Human Serv. v. Cheryl M., 177 W.Va. 688, 356 S.E.2d 181 (1987), superseded by statute, West Virginia Code § 49-4-610, as recognized in State ex. rel Virginia M. v. Virgil Eugene S., 197 W.Va. 456 n.9, 475 S.E.2d 548 n.9 (1996).[6] In Cheryl M., we reversed the termination of a parent's parental rights to her child because she did not receive a meaningful improvement period and because the evidence did not satisfy the standard for termination.

         In so doing, this Court explained that when an improvement period is authorized, a family case plan shall be prepared that "clearly set[s] forth an organized, realistic method of identifying family problems and the logical steps to be used in resolving or lessening these problems." Id. at 688-89, 356 S.E.2d at 181-82, syl. pts. 3 and 5. It was a critical fact in Cheryl M. that "the [circuit] court took no formal action to order an improvement period and, as a consequence, there was never any court-approved ...


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