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In re A.L.

Supreme Court of West Virginia

September 5, 2017

In re: A.L.

         Mercer County 15-JA-140-WS

          MEMORANDUM DECISION

         Petitioner 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.[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 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.[2] 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.

         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 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.

         In 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.

         In 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.

         In 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.

         In 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.

         In 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.

         Based 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.[3] It is from the dispositional order that petitioner 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). Upon our review, the Court finds no error in the circuit court's findings below.

         On 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 ...


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