                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS
                                                                                     FILED
In re D.S. and L.S.                                                                May 24, 2019
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
No. 19-0028 (Lewis County 18-JA-7 and 18-JA-8)                                       OF WEST VIRGINIA




                               MEMORANDUM DECISION


        Petitioner Father M.S., by counsel G. Phillip Davis, appeals the Circuit Court of Lewis
County’s December 17, 2018, order terminating his parental rights to D.S. and L.S.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Dennis J.
Willett, filed a response on behalf of the children in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in terminating his parental rights instead of 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.

        On February 20, 2018, the DHHR filed an abuse and neglect petition alleging that the
parents had little to no contact with D.S., who lived with his paternal grandmother. The DHHR
also alleged that petitioner was released from incarceration on bond in November of 2017 and
placed on home incarceration. However, in January of 2018, the DHHR was advised that petitioner
absconded from the Day Report Center program and violated the terms of his home incarceration
in December of 2017 by failing to check in with the Day Report Center and failing to drug screen.
Further, the children’s maternal uncle reported to a Child Protective Services (“CPS”) worker that
petitioner and the mother dropped L.S. off at his home intermittently for three months prior to the
filing of the petition without telling him where they were going or how long they would be gone.
The uncle explained that the parents would be gone anywhere from one day to one week at a time.
The child stated to his uncle that “Daddy is going to kill Mommy” and hid under the bed when his

       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).


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parents came to get him because he did not want to go with them. According to the DHHR, when
L.S. was not with his uncle, the child slept in a car with petitioner and the mother unless they could
find a friend to stay with. The DHHR alleged that the parents were provided services such as adult
life skills, parenting classes, transportation, SNAP benefits, and medical cards, but did not utilize
those services.

        In May of 2018, petitioner was sentenced to an indeterminate term of not less than one year
nor more than five years of incarceration following his guilty plea for felony delivery of
methamphetamine, a controlled substance. He was given credit for time served, which included
252 days of incarceration and ninety-five days of home incarceration. On May 23, 2018, the circuit
court held an adjudicatory hearing during which petitioner stipulated to the allegations of abuse
and neglect. Specifically, petitioner stipulated that he was currently incarcerated, that he was
previously placed on home incarceration as a condition of bond, left the program, and did not drug
screen or check in with the program after early December of 2017. He further stipulated that L.S.
was “required to live in an environment not conducive to his physical and mental welfare,” and
that the children remaining in his custody was contrary to their best interests. Based upon his
stipulations, petitioner was adjudicated as an abusing parent.

        On November 7, 2018, the circuit court held a dispositional hearing. Petitioner moved for
a post-adjudicatory improvement period which the circuit court later denied. The circuit court
noted that petitioner could not participate in an improvement period due to his incarceration. The
circuit court also noted that, although it granted continuances during the proceedings, petitioner
had not been paroled during the proceedings and it was unknown whether petitioner might be
granted parole or if he would be required to serve the remainder of his sentence. The circuit court
found no reasonable likelihood that petitioner could substantially correct the conditions of abuse
and neglect in the near future. The circuit court also found that the children needed permanency,
security, stability, and continuity of care, and that the termination of petitioner’s parental rights
was in their best interests. The circuit court terminated petitioner’s parental rights in its December
17, 2018, dispositional order.2 It is from this 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

       2
         The mother’s parental rights were also terminated. According to respondents, the
permanency plan for L.S. is adoption by his paternal grandmother and the permanency plan for
D.S. is adoption by his maternal uncle.

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       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.

        In his sole assignment of error, petitioner argues that the circuit court erred in terminating
his parental rights instead of imposing a less-restrictive dispositional alternative. In support,
petitioner contends that he “could have remedied the conditions of abuse and neglect if given an
improvement period” upon his release from incarceration. We disagree. West Virginia Code § 49-
4-610(2)(B) provides that the circuit court may grant a parent a post-adjudicatory improvement
period when the parent “demonstrates, by clear and convincing evidence, that the [parent] is likely
to fully participate in the improvement period.” We have held that “West Virginia law allows the
circuit court discretion in deciding whether to grant a parent an improvement period.” In re M.M.,
236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015). However, the record shows that, between the
periods of time that he was incarcerated, petitioner absconded from his home incarceration
program, failed to drug screen as required by the program, and failed to take advantage of services
offered by the DHHR. Therefore, petitioner did not prove that he would be likely to comply with
the terms and conditions of an improvement period and the circuit court did not err in denying his
motion for a post-adjudicatory improvement period during the dispositional hearing.

       Also in support of his argument, petitioner contends that the circuit court should have
considered the following:

                When no factors and circumstances other than incarceration are raised at a
       disposition hearing in a child abuse and neglect proceeding with regard to a parent’s
       ability to remedy the condition of abuse and neglect in the near future, the circuit
       court shall evaluate whether the best interests of a child are served by terminating
       the rights of the biological parent in light of the evidence before it. This would
       necessarily include but not be limited to consideration of the nature of the offense
       for which the parent is incarcerated, the terms of the confinement, and the length of
       the incarceration in light of the abused or neglected child’s best interests and
       paramount need for permanency, security, stability and continuity.

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 3. Based on the circuit court’s findings, it is
clear that it did consider the nature of petitioner’s offense as well as the terms and length of
incarceration in light of the children’s best interests and need for permanency, security, stability,
and continuity pursuant to Cecil T. The circuit court specifically found that petitioner’s
incarceration for felony drug charges prevented him from participating in an improvement period
and that it was unknown when petitioner may be granted parole, or if he would serve the remainder
of his sentence. Because petitioner’s incarceration prohibited him from correcting the conditions
of abuse and neglect in the near future, the circuit court found that the children needed permanency,
security, stability, and continuity of care, and that the termination of petitioner’s parental rights
was in their best interests.




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       We find no error in the circuit court’s termination of petitioner’s parental rights. 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 has

       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, as
       evidenced by the continuation or insubstantial diminution of conditions which
       threatened the health, welfare or life of the child.

        Based on the evidence discussed above, it is clear that there was no reasonable likelihood
that petitioner could substantially correct the conditions of abuse and neglect in the near future.
Further, although he asserts on appeal that he was released on parole, at the time of the
dispositional hearing it was unknown whether petitioner would be paroled or if he would be
required to serve the remainder of his sentence. As stated above, the circuit court specifically found
that the children needed permanency, security, stability, and continuity of care and that the
termination of petitioner’s parental rights to the children was in their best interests. Further, while
petitioner argues that the circuit court should have granted him a less-restrictive dispositional
alternative or an improvement period instead of terminating his parental rights, we have held as
follows:

              “Termination of parental rights, the most drastic remedy under the statutory
       provision covering the disposition of neglected children, [West Virginia Code § 49-
       4-604] may be employed without the use of intervening less restrictive alternatives
       when it is found that there is no reasonable likelihood under [West Virginia Code
       § 49-4-604(c)] 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). Therefore, we find no error in
the termination of petitioner’s parental rights.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 17, 2018, dispositional order is hereby affirmed.


                                                                                            Affirmed.


ISSUED: May 24, 2019




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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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