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In re E.S.

Supreme Court of West Virginia

May 14, 2018

In re E.S., W.S.-1, A.S.-1, A.S.-2, and A.S.-3

          Wood County 16-JA-199, 200, 201, 202, and 203

          MEMORANDUM DECISION

         Petitioner Father W.S.-2, by counsel Jeffrey O. Dye, II, appeals the Circuit Court of Wood County's November 21, 2017, order terminating his parental rights to E.S., W.S.-1, A.S.-1, A.S.-2, and A.S.-3.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Ernest M. Douglass, filed a response on behalf of the children in support of the circuit court's order and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in (1) terminating his parental rights to all of the children, (2) finding that there was no reasonable likelihood that he could substantially correct the conditions of abuse and neglect in the near future, (3) denying him a less-restrictive dispositional alternative to termination of his parental rights, and (4) failing to consider the oldest child's wishes in regard to termination of his parental 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.

         On December 2, 2016, the DHHR filed a petition alleging that petitioner abused and neglected his five children. The petition specifically alleged that petitioner allowed J.S., the mother of E.S. and W.S.-1, to live with him and the children, despite termination of her parental rights to them based upon abandonment, emotional and psychological abuse, and domestic violence. Additionally, the petition alleged a recent domestic violence incident between petitioner and J.S. in the presence of their children. At the time the petition was filed, E.S. And W.S.-1 lived with petitioner and his three oldest children, A.S.-1, A.S.-2, and A.S.-3, were primarily in the care of their mother, but had regular visitation with petitioner in his home.

         On December 12, 2016, the circuit court held a preliminary hearing wherein J.S. testified that petitioner allowed her regular unsupervised contact with all five of his children after her parental rights were terminated. She testified that A.S.-1, A.S.-2, and A.S.-3 lived in petitioner's home every Thursday through Sunday. She further admitted that A.S.-2 was present during an incident of domestic violence between her and petitioner.

         On February 3, 2017, the circuit court held an adjudicatory hearing at which it took judicial notice of the testimony presented at the preliminary hearing. At the hearing's close, the circuit court found clear and convincing evidence that petitioner allowed the mother of E.S. and W.S.-1 to live in his home with him and the children for the past two to three years, despite her prior termination of parental rights. The circuit court further found that there were credibility issues regarding petitioner due to his admission on the stand that he lied to a Child Protective Services worker regarding how often J.S. was staying with him. The circuit court found clear and convincing evidence that the children were abused and neglected and adjudicated petitioner as an abusing parent.

         On March 17, 2017, the circuit court granted petitioner's motion for a post-adjudicatory improvement period and a case plan was developed. The circuit court held review hearings on May 17, 2017, and July 17, 2017, and it was reported that petitioner was compliant with the terms and conditions of his improvement period. However, on July 24, 2017, petitioner was charged criminally in relation to the death of his girlfriend's infant child. Petitioner remained incarcerated during the remainder of the proceedings. On September 15, 2017, the DHHR moved the circuit court to terminate petitioner's post-adjudicatory improvement period and schedule the case for a dispositional hearing. The circuit court granted the DHHR's motion without making specific findings as to termination of petitioner's improvement period, although the improvement period naturally expired on September 17, 2017.

         On October 30, 2017, the circuit court held a dispositional hearing at which the DHHR and the guardian recommended that petitioner's parental rights be terminated based upon his failure to successfully complete the terms of his improvement period, his incarceration related to the death of an infant in his care, and his lack of honesty during his improvement period. According to the guardian, petitioner informed the DHHR that he had a new girlfriend, but failed to indicate that she and her infant child were living with him four to five nights a week. The circuit court found that petitioner's deception regarding his new girlfriend was similar to that of not informing the DHHR that J.S. was living with him and having unsupervised access to all of the children. According to the DHHR, petitioner failed to successfully complete his improvement period and the circuit court specifically found that petitioner failed to complete services and had no suitable home in which the children could live or visit due to damage caused by pigeons, rats, and mice. The circuit court found no reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near future and that termination of his parental rights was in the children's best interests. The circuit court ultimately terminated petitioner's parental rights in its November 21, 2017, order.[2] 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 proceedings below.

         First, petitioner argues that the circuit court erred in terminating his parental rights to A.S.-1, A.S.-2, and A.S.-3 when the circuit court only adjudicated E.S. and W.S.-1 as abused children. Petitioner also argues that the petition failed to sufficiently allege the abuse of A.S.-1, A.S.-2, and A.S.-3. We find no merit to these arguments. We have held that

[West Virginia Code ยง 49-4-601(i)] requires the [DHHR], in a child abuse or neglect case, to prove "conditions existing at the time of the filing of the petition . . . by clear and convincing proof." The statute, however, does not specify any particular manner or mode of testimony or ...

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