                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS



                                                                                     FILED
In re M.S.-1, J.S., and P.S.
                                                                                 March 12, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 17-0872 (Morgan County 16-JA-07, 08, and 09)                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION

        Petitioner Father M.S.-2, by counsel R. Steven Redding, appeals the Circuit Court of
Morgan County’s August 29, 2017, order terminating his parental rights to M.S.-1, J.S., and P.S.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy
M. Parsley, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Michael Donadieu, filed a response on behalf of the children in support of
petitioner. Petitioner filed a reply.2 On appeal, petitioner argues that the circuit court erred in
denying his motion for a post-dispositional improvement period and in terminating 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.



                                                            
              1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990). Additionally, because one of the children and petitioner
share the same initials, we will refer to them as M.S.-1 and M.S.-2, respectively, throughout this
memorandum decision.
              2
         In his reply brief, petitioner attempts to incorporate an assignment of error from the
mother’s brief in a related appeal. Rule 10(g) of the West Virginia Rules of Appellate Procedure
sets forth that a petitioner’s reply brief must comply with the parts of Rule 10 that are applicable
to respondents. Rule 10(d) sets forth that a “respondent’s brief must specifically respond to each
assignment of error[.]” As such, petitioner is limited to responding to the assignments of error in
his brief and may not raise a new assignment of error in his reply brief.
 

                                                                   1

 
        In February of 2016, the DHHR filed an abuse and neglect petition against the parents
after learning that law enforcement was dispatched to the family’s home due to then eleven-year-
old C.M.’s call for assistance.3 According to the DHHR, the parents locked C.M. in a shed as
punishment over the course of two days. On the first day, petitioner locked C.M. in the shed
while he was at work and the mother was in the home. Petitioner returned him to the shed the
next morning when he left for work. The shed had no heat, no electricity, and no bathroom, and
temperatures during those two days were extremely cold. On the second day of being locked in
the shed, C.M. escaped and sought help. The petition also alleged that the parents locked C.M. in
the bathroom overnight without food. An amended petition was filed later in February of 2016 in
order to include P.S., who was born within two days of the initial petition’s filing. The parents
waived their preliminary hearing.

        In April of 2016, the circuit court held an adjudicatory hearing during which the parents
stipulated to essential allegations contained in the petition. The circuit court accepted the parents’
stipulations, adjudicated them as abusing parents, and granted them post-adjudicatory
improvement periods.

        Petitioner moved the circuit court for an extension of his post-adjudicatory improvement
period in September of 2016, citing a delay in setting up individualized counseling sessions and a
general need for additional time to comply with the terms of his improvement period. The circuit
court granted petitioner’s motion. In December of 2016, a multidisciplinary team (“MDT”)
meeting was held and the members elected to move forward with a reunification plan for the
family, determining that petitioner would complete services around March of 2017.

        In February of 2017, petitioner was sentenced to six months of incarceration after being
convicted for misdemeanor child abuse related to the allegations contained in the petition.
Petitioner moved the circuit court for a post-dispositional improvement period later in February
of 2017.

        The circuit court held a dispositional hearing over the course of three days throughout
May and June of 2017. The circuit court heard testimony from several witnesses, including
service providers, who all testified that petitioner had appropriately complied with services.
While the parents’ therapist believed a six-month post-dispositional improvement period would
be successful, she testified that the parents would need intensive counseling, which could occur
after the children were returned to the home. The therapist stated that counseling would probably
need to occur twice weekly for one year. Four of the parents’ neighbors testified that the parents
seemed like a normal couple, were affectionate parents, and always cared for the children. They
opined that the shed incident was an anomaly based upon their observations of the family over
the years. A DHHR worker testified that the case plan was for reunification until February of
2017, when the parents were incarcerated. She testified that, at that point, the children would
have been out of the home for over fifteen months. Further, the DHHR noted that they


                                                            
              3
         Petitioner is not C.M.’s biological father. The mother voluntarily relinquished her
parental rights to C.M. during the proceedings below and the child’s father is deceased. C.M. is
not at issue on appeal.
                                                               2

 
discovered that petitioner had previously voluntarily relinquished his parental rights to three
children after being involved in an abuse and neglect proceeding in Virginia.

        The parents also testified that they understood their prior actions were wrong and that
locking C.M. in the shed was an inappropriate form of discipline. Petitioner testified that, after
receiving services, he learned that there are services available to help him with parenting his
children. After hearing evidence, the circuit court found that, although the parents had
participated in services, they failed to present any testimony regarding their ability to apply the
techniques they learned. Further, the circuit court found it significant that petitioner relinquished
his rights to three other children in Virginia after having been adjudicated as an abusing parent.
Accordingly, the circuit court terminated petitioner’s parental rights upon findings that there was
no reasonable likelihood that the conditions of abuse and neglect could be corrected and that
termination was necessary for the children.4 It is from the August 29, 2017, dispositional order
that petitioner appeals.

              The Court has previously established the following standard of review in cases such as
this:

                      “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).

        On appeal, petitioner argues that the circuit court erred in denying his motion for a post-
dispositional improvement period when the evidence demonstrated that he successfully
completed his post-adjudicatory improvement period. Specifically, petitioner relies heavily on
the favorable testimony of service providers, a therapist, his neighbors, and his own testimony,
all of which, he argues, demonstrates that he would have successfully completed a post-
dispositional improvement period had it been granted. We disagree. Pursuant to West Virginia

                                                            
              4
         The mother’s parental rights to the three younger children were terminated in the
proceedings below. M.S.-1 was placed with his maternal grandparents and the permanency plan
is adoption by that family. J.S. and P.S. were placed with a foster family and the permanency
plan is adoption by that family.


                                                               3

 
Code § 49-4-610(3)(D), a circuit court may grant a parent an improvement period at disposition
if, “the [parent] demonstrates that since the initial improvement period, the [parent] has
experienced a substantial change in circumstances. Further, the [parent] shall demonstrate that
due to that change in circumstances, the [parent] is likely to fully participate in the improvement
period . . . .” Here, petitioner was previously granted a post-adjudicatory improvement period.
However, the record demonstrates that petitioner could not establish a substantial change in
circumstances since his initial improvement period or that he was likely to fully participate in a
new improvement period.

        Contrary to petitioner’s argument that the testimony of several witnesses established that
he was likely to participate in a post-dispositional improvement period, the circuit court, after
hearing the testimony, found that several of the witnesses were not credible. Specifically, it
found that the neighbors’ testimony was not credible, as they had no knowledge of the abuse and
only saw limited “snapshots” of the family. Further, the circuit court found that while the
therapist believed the children could be returned to the home, the parents would need a year of
intensive counseling. In light of that information, the circuit court found that the safety of the
three young children remained at risk as they would grow and challenge the parents, much like
C.M., and that no testimony established that petitioner learned how to implement the techniques
he was taught through services. Moreover, the circuit court paid careful attention to the parents’
testimony and found that petitioner did not demonstrate that he had enhanced his diminished
capacity to parent the children. Petitioner was unable to specifically or sufficiently explain what
he would have done differently regarding placing C.M. in a shed, even after extensive services
had been provided.

         We have previously held that “[a] reviewing court cannot assess witness credibility
through a record. The trier of fact is uniquely situated to make such determinations and this
Court is not in a position to, and will not, second guess such determinations.” Michael D.C. v.
Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997). While petitioner’s argument
heavily relies on the generally positive testimony of several witnesses, we note that the circuit
court, as the trier of fact, assesses the credibility of witnesses. Here, the circuit court was
provided with ample testimony from several witnesses and ultimately found that petitioner failed
to demonstrate that he was likely to successfully complete a post-dispositional improvement
period after weighing the evidence. Accordingly, this Court will rely on the assessment of
witness credibility made by the circuit court below and finds that petitioner is entitled to no relief
in this regard.

        Petitioner next argues that the circuit court erred in terminating his parental rights.
Specifically, petitioner argues that he demonstrated that he would comply with the terms of a
post-dispositional improvement period and that the circuit court weighed his incarceration too
heavily given the progress he made in his post-adjudicatory improvement period. According to
petitioner, he fully complied with the terms of his post-adjudicatory improvement period and
reunification remained the goal until February of 2017, when he was incarcerated for six months
due to the related criminal case. Petitioner’s argument is unpersuasive. Pursuant to West Virginia
Code § 49-4-604(c)(3), a situation in which there is no reasonable likelihood that the conditions
of abuse or neglect can be substantially corrected include one in which “[t]he abusing parent . . .
ha[s] not responded to or followed through with a reasonable family case plan or other


                                                  4

 
rehabilitative efforts[.]” We have also held that “[t]ermination . . . may be employed without the
use of intervening less restrictive alternatives when it is found that there is no reasonable
likelihood . . . that conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 7, in
part, In re Katie S., 198 W.Va. 79, 82, 479 S.E.2d 589, 592 (1996).

        We agree with the circuit court’s finding that there was no reasonable likelihood that
petitioner could correct the conditions of abuse and neglect. Although petitioner argues that the
circuit court should have afforded more weight to the witness testimony than to his brief
incarceration, we previously noted that the circuit court is the trier of fact and is uniquely
situated to assess witness credibility. Further, we have previously held that “[i]n making the final
disposition in a child abuse and neglect proceeding, the level of a parent’s compliance with the
terms and conditions of an improvement period is just one factor to be considered. The
controlling standard that governs any dispositional decision remains the best interests of the
child.” Syl. Pt. 4, In re B.H., 233 W.Va. 57, 754 S.E.2d 743 (2014).

        While the record demonstrates that petitioner completed services throughout his post-
adjudicatory improvement period, the circuit court found that he failed to demonstrate what
parenting skills he had learned or how he would handle things differently in the future, should he
be in a similar situation as the other children get older. This is particularly compelling in light of
the fact that petitioner previously voluntarily relinquished his parental rights to three older
children in another state after being adjudicated as an abusing parent based upon allegations of
excessive punishment. Further, while petitioner complied with his improvement period, his
incarceration effectively stopped him from further participation or reunification for six months.
By the time of the dispositional hearing, the children had been in foster care for more than fifteen
months.5 Seventeen-month-old P.S. had been with his foster parents since birth and J.S. had been
with her foster parents for nearly half of her life. The circuit court found that they had not
bonded with petitioner, had not had visitation with him for over six months due to his
incarceration, and had established bonds with their foster parents. As such, we agree that there
was no reasonable likelihood that petitioner could correct the conditions of abuse and neglect and
that termination was necessary for the children’s welfare. Pursuant to West Virginia Code § 49-
4-604(b)(6), circuit courts are to terminate parental rights based upon such findings.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 29, 2017, order is hereby affirmed.




                                                                                           Affirmed.

ISSUED: March 12, 2018


                                                            
              5
         Pursuant to West Virginia Code 49-4-605(a)(1), “the [DHHR] shall file or join in a
petition or otherwise seek a ruling in any pending proceeding to terminate parental rights . . .
[when] a child has been in foster care for fifteen of the most recent twenty-two months . . . .” 
                                                               5

 
CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker

DISSENTING:

Justice Robin Jean Davis




                                    6
 
