                           STATE OF WEST VIRGINIA
                         SUPREME COURT OF APPEALS

                                                                                FILED
In re R.S.                                                                  January 31, 2019
                                                                                released at 3:00 p.m.
                                                                            EDYTHE NASH GAISER, CLERK
No. 18-0562 (Barbour County 16-JA-21)                                       SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA




                            MEMORANDUM DECISION

        The petitioner father, C.S., appeals the May 23, 2018, order of the Circuit Court of
Barbour County terminating his parental rights to his minor son, R.S.1 The petitioner seeks
an alternative disposition. The West Virginia Department of Health and Human Resources
(“DHHR”) and the child’s guardian ad litem argue in support of the circuit court’s order.2

       After considering the parties’ written and oral arguments, as well as the record on
appeal and the applicable law, this 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.

       When this abuse and neglect proceeding began, R.S. was residing with his mother
and the mother’s live-in boyfriend in Barbour County. The mother’s boyfriend is the
biological father of her younger child who was also living in the home. The petitioner was
living and working in another state, but exercised visitation with R.S. In April of 2016, the
DHHR filed the abuse and neglect petition alleging that the boyfriend was physically and
verbally abusive toward the mother in the children’s presence; that the mother failed to
acknowledge the domestic violence; that both the mother and the boyfriend suffered from
drug and alcohol addictions making them unable to properly care for minor children; that
the petitioner had a history of alcohol addiction making him unable to properly care for a
minor child; and that the petitioner failed to protect R.S. The children were removed from
the home and placed in foster care. During the August 2016 adjudicatory hearing, the


       1
        Because this case involves a child and sensitive matters, we follow our practice of
using initials to refer to the child and the parties. See e.g., W.Va. R. App. P. 40(e); State
v. Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
       2
         The petitioner is represented by Mary S. Nelson, Esquire. The DHHR is
represented on appeal by Lee Niezgoda, Assistant Attorney General. The guardian ad litem
is Ashley V. Williams Hunt, Esquire.

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petitioner admitted that his use of alcohol had adversely affected the care of R.S.3 He also
admitted having some knowledge of domestic violence in the mother’s home, but he took
no action to ensure his son’s safety. Accordingly, the circuit court adjudicated him as an
abusive parent.4

        During the course of the abuse and neglect proceeding in the circuit court, the
petitioner was granted a total of eighteen months of improvement periods: nine months
post-adjudicatory and nine months post-dispositional. Nonetheless, at the final disposition
hearing on April 25, 2018, the petitioner acknowledged that he was unable to provide a
suitable home for R.S. After hearing the evidence and considering the best interests of the
child, the circuit court terminated the petitioner’s parental rights to R.S. by order entered
on May 23, 2018. The circuit court’s order allows R.S. to have post-termination visitation
with the petitioner so long as the visitation is in the child’s best interests. R.S. remains in
the care and physical custody of his foster parent. His permanency plan is adoption by this
foster parent, who also has physical custody of, and plans to adopt, R.S.’s younger half-
sibling.

       On appeal, the petitioner challenges the termination of his parental rights to R.S.
Our standard of review in such matters is well established:

                     “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

       3
         Because the parties failed to include any transcripts in the appendix record on
appeal, this Court must rely upon the findings of fact set forth in the circuit court’s orders
and the representations in the parties’ briefs.
       4
         The mother and her boyfriend were also adjudicated as abusive. Eventually, their
parental rights to both children were terminated. Their rights are not at issue in this appeal.

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              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).

        In his sole assignment of error, the petitioner argues that a disposition less than
termination of his parental rights would have been the more appropriate outcome in this
case. He notes that West Virginia Code § 49-4-604(b) (2016) provides a range of options
for a circuit court to impose in an abuse and neglect case, with termination of parental
rights being the ultimate and least-favored choice. The petitioner contends that the circuit
court should have only terminated his custodial rights to R.S., should have placed R.S. in
a long-term guardianship with the foster parent, and should have permitted him more time
to address his problems and ultimately seek full custody. The petitioner explains that in
August of 2016, he quit his out-of-state employment as an iron worker earning $100,000
per year and moved back to West Virginia so he could participate in this abuse and neglect
case. According to the petitioner, he took a job in West Virginia earning less money, then
lost that job and suffered serious financial setbacks. He reports that his car was repossessed
and a subsequent car required extensive repairs, preventing him from exercising some
visitation with R.S. In addition, he says that his home needs repairs that he cannot afford.
He reports that he has not consumed alcohol since he was arrested for felony driving under
the influence of alcohol in 2014, and that a psychological evaluator concluded he has a
good prognosis for improved parenting.

       The DHHR and the guardian ad litem assert that despite being given eighteen
months of improvement periods, as well as parenting and adult life skills classes, the
petitioner has never been able to be a full-time parent for R.S. The petitioner missed visits
with the child without calling, which caused the child emotional distress, and failed to
attend some meetings of the multi-disciplinary treatment team. Moreover, at the final
disposition hearing the circuit court heard that the petitioner’s home was in a “deplorable,”
unsafe condition and lacked such basic necessities as running water and food for the child.
In addition, a DHHR social worker testified that although the petitioner blamed car trouble
for some of his missed visits with the child, he never sought transportation assistance. The
social worker testified that the petitioner appeared to have regressed or failed to maintain
what he learned in his classes. Likewise, the guardian ad litem reports that the petitioner
has “demonstrated an overall lack of stability throughout the entirety of” these proceedings.
Indeed, during the April 25, 2018, final hearing, the petitioner admitted that although he
wanted full custody of R.S., he was unable to take custody at that time. The DHHR and
the guardian ad litem maintain that more than enough time has passed, the child needs
permanency, and termination of the petitioner’s parental rights would clearly be in the
child’s best interests.

        After reviewing the parties’ arguments and the limited record on appeal, we find no
error in the circuit court’s decision to terminate the petitioner’s parental rights. Although

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the general rule is to impose the least restrictive dispositional alternative, “courts are not
required to exhaust every speculative possibility of parental improvement before
terminating parental rights where it appears that the welfare of the child will be seriously
threatened . . . .” Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).
As we have held,

                      “[t]ermination of parental rights, the most drastic
              remedy under the statutory provision covering the disposition
              of neglected children, W.Va. Code, 49-6-5 (1977) [now W.Va.
              Code § 49-4-604(b)] 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.” Syllabus point 2, In
              re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Despite eighteen months
of improvement periods during a case that was pending in the circuit court for two years,
as well as the receipt of various classes and services, the petitioner has admittedly been
unable to provide a safe and suitable home for his child. The petitioner was adjudicated as
an abusive parent for the failure to protect R.S., and he is still unable to protect and provide
for R.S. As such, there is no reasonable likelihood that the condition will be substantially
improved. “[T]he primary goal in cases involving abuse and neglect, as in all family law
matters, must be the health and welfare of the child[].” Syl. Pt. 3, in part, In re Katie S.,
198 W.Va. 79, 479 S.E.2d 589 (1996). R.S. deserves a safe, suitable, and permanent home.

        We also observe that the additional improvement period which the petitioner seeks
would be contrary to law. West Virginia Code § 49-4-610(9) (2015) directs that “no
combination of any improvement periods or extensions thereto may cause a child to be in
foster care more than fifteen months of the most recent twenty-two months, unless the court
finds compelling circumstances by clear and convincing evidence that it is in the child’s
best interests to extend the time limits contained in this paragraph.” The petitioner has
failed to point to any evidence, let alone clear and convincing evidence, to justify ignoring
this statutory prescript.

       Finally, although he did not assign it as an error on appeal, the petitioner complains
that R.S. was not consulted about the disposition of the petitioner’s rights. West Virginia
Code § 49-4-604(b)(6)(C) provides that “the court shall give consideration to the wishes
of a child fourteen years of age or older or otherwise of an age of discretion as determined
by the court regarding the permanent termination of parental rights . . . .” R.S. was thirteen
years old at the time of disposition, and there is nothing in the appendix record on appeal
to indicate that he possessed the requisite discretion to weigh in on this important decision.
As such, even if R.S. was not consulted, we find no error. Furthermore, the guardian ad


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litem reports that she has discussed the matter with R.S. and he now wishes to be adopted
by his foster parent while having visitation with the petitioner.

      For the foregoing reasons, we affirm.

                                                                               Affirmed.

ISSUED: January 31, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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