Father W.L., by counsel Paul R. Cassell, appeals the Circuit
Court of Mercer County's March 1, 2017, order terminating
his parental, custodial, and guardianship rights to
A.L. 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 and a supplemental appendix. The guardian ad litem
("guardian"), Elizabeth A. French, filed a response
on behalf of the child in support of the circuit court's
order. The intervening foster parent, C.B., by counsel, Kyle
G. Lusk, Matthew A. Bradford, and Brandon L. Gray, also filed
a brief in support of the circuit court's
order. On appeal, petitioner argues that the
circuit court erred in refusing to grant him a
post-adjudicatory improvement period and in terminating his
parental, custodial, and guardianship rights.
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.
August of 2015, petitioner's neighbor called the Child
Abuse Hotline alleging that she could hear a child being hit
at petitioner's residence. A child protective services
("CPS") worker arrived at petitioner's
residence and observed welts and bruising on the child's
face. The CPS worker also observed dried mud on the
child's face, arms, and hands and that the child's
clothes were soiled and dirty.
September of 2015, the DHHR filed an abuse and neglect
petition against petitioner asserting physical abuse upon the
child. The petition asserted that the owner of the residence
where petitioner, the child's mother, and the child
resided disclosed to the CPS worker that the child frequently
had unexplained injuries. The petition further asserted that
petitioner stated that he was with the mother when she struck
the child and that he agreed that the child needed to be
punished for not listening to them. The petition asserted
that petitioner stated, "that's what we do when we
have to discipline him." The circuit court held a
preliminary hearing and found reasonable cause to believe
that the child was in imminent danger due to a nonaccidental
trauma that was inflicted upon the child while in the custody
of petitioner and the mother.
October of 2015, the DHHR filed an amended petition which
included information regarding prior abuse and neglect
proceedings against petitioner in Michigan and South Dakota.
The amended petition asserted that from 2007 through 2011,
petitioner had his parental rights to six children
terminated, two voluntarily and four involuntarily, in
Michigan and South Dakota. The petition also asserted that
petitioner is a registered sex offender.
January of 2016, the circuit court held an adjudicatory
hearing where petitioner stipulated to the abuse of the child
based upon excessive corporal punishment. The circuit court
accepted the stipulation and petitioner was adjudicated as an
abusing parent. At the hearing, petitioner moved for a
post-adjudicatory improvement period. The DHHR and the
guardian opposed granting petitioner any improvement period.
Shortly after the adjudicatory hearing, the DHHR moved to
terminate petitioner's parental rights. The DHHR asserted
that due to aggravated circumstances, the DHHR was not
required to make reasonable efforts to preserve the family.
March of 2016, the circuit court held a dispositional hearing
during which it heard the testimony of the DHHR's
caseworker in this matter. After the caseworker's
testimony, the circuit court continued the hearing to allow
for the completion of a home study of a relative in another
state who wished to have the child placed with her.
February of 2017, the circuit court resumed the dispositional
hearing. Petitioner testified that, while living in Michigan,
he had a prior improvement period concerning the subject
child for nine months, but that the improvement period
involved inappropriate housing, rather than corporal
punishment. Petitioner further testified regarding his prior
terminations in Michigan and South Dakota and stated that
allegations of abuse and neglect were made in relation to all
six of his other children, which resulted in termination of
his parental rights to all of them.
on the evidence presented, the circuit court found that there
was no reasonable likelihood petitioner could substantially
correct the conditions of abuse and neglect in the near
future and terminated his parental, custodial, and
guardianship rights to the child in its March 1, 2017,
order. It is from the dispositional order
that petitioner appeals.
Court has previously established the following standard of
"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
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
circuit court's findings below.
appeal, petitioner argues that the circuit court erred in
denying him a post-adjudicatory improvement period. We
disagree. Petitioner argues that the facts of this case do
not support that this is the "rare case" where an
improvement period would be "pointless." See In
re Rebecca K.C.213 W.Va. 230, 579 S.E.2d 718 (2013).
Upon our review, the Court finds that petitioner misstates
the standard used for granting an improvement period. The
applicable burden for granting an improvement period is found
at West Virginia Code § 49-4-610(2)(B), which requires
that the parent "demonstrates by clear and convincing
evidence, that the [parent] is likely to fully participate in
the improvement period . . . " Further, 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 ...