                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                      FILED
In Re: C.S., M.S., & M.S.                                                        September 21, 2015
                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
No. 15-0299 (Kanawha County 14-JA-166, 14-JA-167, & 14-JA-168)                     OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Father R.S., by counsel Edward L. Bullman, appeals the Circuit Court of
Kanawha County’s February 26, 2015, order terminating his parental rights to C.S., M.S.-1, and
M.S.-2. The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
S.L. Evans, filed its response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Jennifer R. Victor, filed a response on behalf of the children supporting the circuit
court’s order. On appeal, petitioner alleges that the circuit court erred in terminating his parental
rights and in denying him post-termination visitation rights.1

        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 June of 2014, the DHHR filed an abuse and neglect petition alleging that the children’s
six-week-old sibling, M.S.-3, died while in petitioner’s care. According to the petition, on May
21, 2014, police were dispatched in response to a possible dead infant. Upon arriving at the
scene, officers observed an infant in the back of a motor vehicle. Petitioner exited the vehicle and
exclaimed that the baby was dead and he killed it. The child was pronounced dead at the scene.
According to petitioner, he had earlier picked the child up and dropped him to the floor.
Petitioner realized his son was dead within minutes, but did not call emergency personnel or
notify anyone for approximately twenty-seven hours. During this period, one-year-old C.S.
remained in petitioner’s care. Petitioner then placed the infant’s corpse in a separate bedroom
and made plans to take his own life. Thereafter, petitioner used a knife to slit his throat in an
attempt to kill himself, but passed out due to blood loss. According to petitioner, upon waking,
he realized he had to contact the police.

       1
        Because some of the children share the same initials, the Court will refer to them as
M.S.-1, M.S.-2, and M.S.-3 throughout this memorandum decision. Further, we note that West
Virginia Code §§ 49-1-1 through 49-11-10 were repealed and recodified during the 2015 Regular
Session of the West Virginia Legislature. The new enactment, West Virginia Code §§ 49-1-101
through 49-7-304, has minor stylistic changes and became effective ninety days after the
February 19, 2015, approval date. In this memorandum decision, we apply the statutes as they
existed during the pendency of the proceedings below.
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        By order entered on June 6, 2014, the circuit court found imminent danger to the children
existed and placed them with the DHHR. Four days later, the circuit court held a preliminary
hearing and petitioner waived his right to the same. Approximately six days later, the DHHR
filed an amended petition with corrected information regarding M.S.-1’s mother and the names
and birthdates of the mother’s other children, and including an additional father.

        After continuing the adjudicatory hearing several times, the circuit court held that hearing
on September 23, 2014. Petitioner appeared and testified that he was currently housed at Western
Regional Jail for a charge of death by a parent. Petitioner further testified to the incident that
caused the child’s death, again stating that he dropped the child when picking him up and that he
then shook the child. Petitioner further testified that instead of calling emergency services, he
attempted to perform CPR on the child. However, medical testimony at the hearing established
that the child’s injuries were inconsistent with petitioner’s account of the incident. Specifically,
Dr. Jimmy Smith, First Deputy Chief from the Office of the Chief Medical Examiner, testified
that, contrary to petitioner’s assertion that the child was dropped once onto a flat surface, the
autopsy indicated that the child had multiple impacts to multiple surfaces and other injuries as
well. The hearing was then continued to December 5, 2014, during which petitioner’s medical
expert, Dr. Thomas Young, testified that petitioner’s account was consistent with the autopsy.
According to Dr. Young, he could not make a definitive determination as to whether the child
suffered more than one blow. Dr. Smith provided rebuttal testimony, stating that the child’s
cause of death was head trauma sustained by multiple direct traumatic impacts to the head.
Ultimately, the circuit court found that petitioner’s failure to seek medical attention constituted
abuse and neglect.

       In January of 2015, the circuit court held a dispositional hearing, during which it found
that M.S.-3 died of abusive head trauma inflicted by petitioner. Moreover, petitioner remained
incarcerated throughout the proceedings on criminal charges related to the child’s death and was
unable to participate in any services offered. Further, the circuit court found that there were no
services that could remedy the abuse that gave rise to the petition. The circuit court then
terminated petitioner’s parental rights and granted post-termination contact between petitioner
and the children at the sole discretion of the children’s non-abusing parents. However, the circuit
court did not grant petitioner visitation rights. 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

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       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 termination of petitioner’s parental rights or in its denial of post-
termination visitation. First, petitioner argues that because the children were all in the custody of
their non-abusing mothers, a less restrictive dispositional alternative to termination of his
parental rights existed. However, the Court does not agree. In support of this argument, petitioner
cites to West Virginia Code § 49-6-5b governing when efforts to terminate parental rights are
required. According to West Virginia Code § 49-6-5b(a)(3), “the department shall file or join in
a petition or otherwise seek a ruling in any pending proceeding to terminate parental rights” in a
variety of situations, including those where the circuit court has determined that the parent has
committed murder or voluntary manslaughter of his or her child. According to petitioner, the
circuit court erred in terminating his parental rights because it never made a finding of murder or
involuntary manslaughter. However, petitioner’s argument misinterprets this statute as governing
when a circuit court is allowed to terminate parental rights, instead of governing situations in
which the DHHR is required to seek termination. Petitioner’s argument further ignores other
statutes that required the circuit court to terminate his parental rights.

        Specifically, the circuit court was required to terminated petitioner’s parental rights
pursuant to West Virginia Code § 49-6-5(a)(6). At disposition, the circuit court found that there
was no reasonable likelihood petitioner could substantially correct the conditions of abuse or
neglect because he “demonstrated an inadequate capacity to solve the problems of child abuse or
neglect on his own, or with help.” This finding was based on the fact that petitioner could not
participate in services designed to remedy the abuse in the home because of his incarceration,
and that “there are no services available to correct the problems that gave rise to the filing of the
petition.” The circuit court also found that termination of petitioner’s parental rights was
necessary for the children’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit
courts are required to terminate a parent’s parental rights upon these findings.

        Further, we have held that West Virginia Code § 49-6-5 “permits the termination of one
parent’s parental rights while leaving the rights of the nonabusing parent completely intact, if the
circumstances so warrant.” In re Emily, 208 W.Va. 325, 344, 540 S.E.2d 542, 561 (2000).
Further, “simply because one parent has been found to be a fit and proper caretaker for [the]
child does not automatically entitle the child’s other parent to retain his/her parental rights if
his/her conduct has endangered the child and such conditions of abuse and/or neglect are not
expected to improve.” Id. As such, the Court finds no merit to petitioner’s argument that the
circuit court should have imposed the less restrictive dispositional alternative of a full
guardianship for the non-abusing mothers so that petitioner could later petition for a modification
of disposition. Because there was no reasonable likelihood petitioner could substantially correct
the conditions of abuse and neglect and termination was necessary for the children’s welfare, the
circuit court did not err in terminating petitioner’s parental rights.




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        As to petitioner’s assignment of error concerning post-termination visitation, we find no
error. At disposition, the circuit court specifically ruled that it “provide[d] no right of visitation
to [petitioner],” but did allow for the children’s non-abusing mothers to use their discretion in
allowing the children contact with petitioner in accordance with certain restrictions. The circuit
court indicated that the contact must be in the child’s best interest, must be supervised, cannot be
initiated by petitioner, and cannot occur while petitioner is incarcerated. In making this decision,
the circuit court was clearly guided by the children’s best interests, which is in keeping with our
prior direction as to post-termination visitation. We have previously held that

                “[w]hen parental rights are terminated due to neglect or abuse, the circuit
       court may nevertheless in appropriate cases consider whether continued visitation
       or other contact with the abusing parent is in the best interest of the child. Among
       other things, the circuit court should consider whether a close emotional bond has
       been established between parent and child and the child’s wishes, if he or she is of
       appropriate maturity to make such request. The evidence must indicate that such
       visitation or continued contact would not be detrimental to the child’s well being
       and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
       446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002).

        The record shows that the circuit court considered the appropriate factors in making its
determination and ultimately ruled in accordance with the children’s best interests. To the
contrary, petitioner’s argument in favor of continued contact entirely disregards the children’s
best interest. Specifically, petitioner argues that one of the children’s mothers has been taking the
child to counseling to deal with issues related to this case. Petitioner then argues that “[t]he
court’s order forecloses contact should the mother and therapist find it appropriate or necessary
as part of therapy.” According to petitioner, the children should be forced to maintain contact
with him even if such contact is against the advice of a counselor specifically treating one of the
children for issues arising from petitioner’s conduct. As such, it is clear that the circuit court
correctly ruled that granting petitioner post-termination visitation rights was not in the children’s
best interest, and we find no error.

       For the foregoing reasons, we find no error in the decision of the circuit court and its
February 26, 2015, order is hereby affirmed.
                                                                                     Affirmed.

ISSUED: September 21, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

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