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In re J.S.-1

Supreme Court of West Virginia

April 19, 2019

In re J.S.-1, C.S., D.S., and J.S.-2

          Kanawha County 2017-JA-417, 2017-JA-418, 2017-JA-419, and 2017-JA-420

          MEMORANDUM DECISION

         Petitioner Father J.S.-3, by counsel Raymond Keener, III, appeals the Circuit Court of Kanawha County's October 3, 2018, order terminating his parental rights to J.S.-1, C.S., D.S., and J.S.-2.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Brandolyn N. Felton-Ernest, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Jennifer N. Taylor, filed a response on behalf of the children in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in terminating his parental rights without imposing a less-restrictive dispositional alternative.

         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 October of 2017, the DHHR filed a petition alleging that petitioner permitted the children's grandfather, a convicted sex offender, to have unsupervised contact with his minor children. The DHHR alleged that one of petitioner's children, J.S.-2, reported that the grandfather took her into the woods, bound her hands together, and made her sit on his lap. At the preliminary hearing that same month, the DHHR confirmed that the grandfather was convicted of incest and a registered sex offender.

         Further, the DHHR presented evidence that petitioner permitted the grandfather to have unsupervised contact with the children. The circuit court found probable cause that the children were in imminent danger and ratified their removal from the home. Petitioner moved for a pre-adjudicatory improvement period, but he testified regarding his conflicting thoughts about the crime of incest, opining that one cannot have incest with a willing partner. Petitioner acknowledged that he stated if the grandfather engaged in an incestuous relationship with one of petitioner's daughters that he would kill both the child and the grandfather. Based on this evidence, the circuit court denied petitioner's motion for a preadjudicatory improvement period and found that petitioner did not fully appreciate the harm in which he placed his children.

         In November of 2017, the circuit court held an adjudicatory hearing and granted the DHHR's motion to incorporate testimony from the preliminary hearing. In addition, the DHHR presented testimony of a DHHR worker who spoke with two of the children who confirmed that J.S.-2 was in the woods with her grandfather, "who bound her wrists and made her sit on his lap while they were on the porch." The children advised that they observed bruising on J.S.-2's wrists. Further, the DHHR worker testified that petitioner admitted the grandfather lived in a van on their property, although petitioner denied this fact. Petitioner testified and acknowledged that there was a risk in exposing his children to their grandfather, but when asked why he allowed the contact to continue, he answered "I don't know." The DHHR called petitioner's parenting educator as a rebuttal witness who testified that petitioner was disruptive, argumentative, and did not meaningfully participate in classes. Ultimately, the circuit court found clear and convincing evidence that the children were abused and neglected and that petitioner was an abusing parent. However, the circuit court deferred ruling on petitioner's motion for a post-adjudicatory improvement period and ordered petitioner to continue participating in drug screens, parenting classes, supervised visitations, and other services provided by the DHHR.

         The circuit court conducted a dispositional hearing in January of 2018 and granted petitioner a ninety-day post-dispositional improvement period. In April of 2018, the circuit court held a review hearing and heard evidence that petitioner was not complying with services. According to the providers, petitioner was often argumentative and uncooperative. Petitioner's psychological evaluation recommended eleven behavioral modifications, but petitioner had only implemented one. However, in June of 2018, the circuit court found that petitioner "recently demonstrated an understanding and willingness to comply with the requirements of the improvement period" and granted petitioner an additional ninety-day improvement period.

         In September of 2018, the circuit court held the final dispositional hearing and petitioner moved to relinquish his parental rights to the children. According to petitioner, he did not understand or agree with the allegations set forth in the petition, but wanted to relinquish his rights because he was being "blackballed" by the DHHR. The circuit court refused to accept petitioner's relinquishment and proceeded to hear evidence on the DHHR's motion to terminate his parental rights. The DHHR presented testimony that petitioner failed to cooperate with DHHR workers and therapists and that the only services he did comply with was drug screening. The testifying DHHR worker opined that if the children were returned to petitioner's custody, he would continue to allow the grandfather to have contact with the children. According to the DHHR, petitioner did not recognize the danger of allowing the grandfather to have contact with the children and blamed the grandfather's past criminal behavior on his sister, the victim of the grandfather's crimes. Petitioner did not testify.

         Ultimately, the circuit court found that the DHHR presented credible evidence that petitioner "had not complied with the terms of the improvement period, had not benefited from the few services that he did obtain, and continued to be confrontational, uncooperative and unwilling to acknowledge or recognize the issues that resulted in the filing of the [p]etition." Additionally, the circuit court found that there was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future because petitioner demonstrated an inadequate capacity to solve the problems on his own or with help. The circuit court also found that petitioner was a hazard to his children in light of his failure to recognize the danger in permitting the grandfather to be around the children. Accordingly, the circuit court terminated petitioner's parental rights by its October 3, 2018, order. Petitioner now appeals that order.[2]

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, this Court finds no error in the proceedings below.

         On appeal, petitioner argues that the circuit court erred in terminating his parental rights and asserts that he significantly overcame the issues that led to the filing of the petition. In support, petitioner claims that the family no longer lives near the grandfather and that he "was taking all reasonable measures to keep [the grandfather] from having contact with his children." However, we note that petitioner does not cite to the record to support his assertion that he took any steps to limit the grandfather's contact with the children. Rather, the circuit court found that petitioner failed to acknowledge the potential danger of allowing the grandfather to have contact with the children. Accordingly, we find no merit in petitioner's argument.

         West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental rights upon findings that there is "no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future" and that termination is necessary for the children's welfare. West Virginia Code § 49-4-604(c)(3) provides that a situation in which there is no reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes one in which the abusing parent "ha[s] 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." The circuit court properly found that there was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future because petitioner did not cooperate with services and did not benefit from the few services that he participated in. Petitioner does not challenge these findings on appeal. Instead, petitioner ...


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