In re A.W.

STATE OF WEST VIRGINIA FILED

SUPREME COURT OF APPEALS

March 16, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

In re A.W.

No. 20-0740 (Jackson County 19-JA-30)

MEMORANDUM DECISION

Petitioner Father S.M., by counsel Ryan M. Ruth, appeals the Circuit Court of Jackson

County’s August 25, 2020, order terminating his parental rights to A.W. 1 The West Virginia

Department of Health and Human Resources (“DHHR”), by counsel Katherine A. Campbell,

filed a response in support of the circuit court’s order. The guardian ad litem, Erica Brannon

Gunn, filed a response on behalf of the child in support of the circuit court’s order. On appeal,

petitioner argues that the circuit court erred in terminating his parental rights because he

substantially complied with services below.

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 February of 2019, the DHHR filed an abuse and neglect petition based on substance

abuse, untreated mental health issues, and unsanitary conditions in the home. According to the

petition, one of petitioner’s neighbors contacted law enforcement after the mother came to the

neighbor’s residence with the child and began talking about “wild animals in the walls and

bacteria coming from the ceiling in the room that she was staying in.” The neighbor reported that

the fifteen-month-old child was underdressed, wearing only a t-shirt and diaper despite the fact

that it was thirteen degrees Fahrenheit at the time. The neighbor also reported that petitioner and

the mother had been acting strangely for approximately six months and engaging in behavior that

the petition asserted was indicative of methamphetamine abuse. The mother’s half-brother also

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).

1

reported observing drug paraphernalia in the home and that the mother abused a wide variety of

drugs. While the half-brother was in the home, the mother told him “that there were dust

particles, radiation and bacteria coming out of the ceiling and going into their bodies.” The half-

brother also indicated that the mother stated that she was going to kill herself, a claim that law

enforcement investigated. Upon arriving at the home, law enforcement observed animal feces

and urine throughout the residence, in addition to large piles of trash and clothing. The home was

also without heat, resulting in petitioner using two electric heaters to warm the residence. Law

enforcement also observed that the child’s crib was covered with plastic sheeting, similar to an

oxygen tent, which created a suffocation risk. The DHHR further alleged that a maternal uncle

took the child to a doctor’s appointment, during which he learned that the child had not received

shots since birth, suffered from lice, and an x-ray revealed a spot on her lung from a chest cold.

Following the petition’s filing, petitioner stipulated to his failure to protect the child and

was adjudicated based upon this admission. He further moved for a post-adjudicatory

improvement period, which the circuit court granted by order entered in April of 2020.

Thereafter, the matter progressed with petitioner under the terms of the improvement period until

the guardian eventually filed a motion to revoke petitioner’s improvement period due to his

noncompliance and to terminate his parental rights. Over two days in August of 2020, the circuit

court held dispositional hearings to address these motions, during which a Child Protective

Services (“CPS”) worker testified to having arranged for petitioner to participate in parenting

and adult life skills services, random drug screens, counseling, a batterer’s intervention

program 2, and supervised visits with the child, among other services. According to the CPS

worker, petitioner’s compliance with these services was sporadic, as he experienced periods

where he “didn’t show up for . . . drug screens [and] didn’t contact the providers.” The CPS

worker was unequivocal that petitioner did not complete all the services required of him during

the improvement period. The witness also indicated that although petitioner mostly complied

with his parenting and adult life skills services, he did not apply what he learned to his parenting.

A witness from the local day report center testified to petitioner’s multiple missed drug screens,

although the witness did qualify that because petitioner presented work excuses that those missed

screens were not considered violations. However, the worker further indicated that petitioner’s

compliance was “back and forth over the past year,” with petitioner alternating between

compliance “and then noncompliance, and the[n] half-compliance.” The worker also testified

that petitioner was not compliant with his batterer’s intervention program, having only recently

increased his compliance and having not completed the program during his extended

improvement period. A third provider testified that even if petitioner were afforded more time

under his improvement period that it would not be helpful in terms of helping him regain custody

of the child, given that petitioner already received services for a longer period than is usually

allotted and failed to make sufficient improvement.

2

According to the docket sheet for the matter, an amended petition was filed in January of

2020. Petitioner did not, however, include the amended petition in his appendix. Nonetheless, the

record shows that, at disposition, the parties discussed petitioner’s failure to complete the

batterer’s intervention program “or kind of anger management regarding . . . the domestic

violence allegations in the petition.” Further, on appeal, petitioner does not dispute that he was

required to complete the batterer’s intervention program as a term and condition of his

improvement period and/or case plan.

2

When the parties reconvened for the second dispositional hearing, petitioner was not

present, having notified his counsel earlier in the day that he was ill. Petitioner’s counsel

requested a continuance, which the circuit court denied. During this hearing, a witness indicated

that petitioner had not visited the child for a long period despite the fact that he was eligible to

attend visits. According to the witness, petitioner missing these visits negatively affected the

child. The witness also indicated that petitioner did not demonstrate a bond with the child. The

witness further corroborated the testimony of several other witnesses that petitioner was

unprepared to have the child returned to his custody. Based upon this evidence, the circuit court

found that there was no reasonable likelihood that petitioner could substantially correct the

conditions of abuse and neglect in the near future and that termination was necessary for the

child’s welfare. As such, the court terminated petitioner’s parental rights to the child. 3 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

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).

According to petitioner, he believes that he made sufficient improvement to justify the

return of the child to his care based on his assertion that he was largely compliant with services

when his employment did not present a conflict with his participation. However, petitioner fails

to address the fact that multiple providers testified to the contrary, given that he failed to

complete all of the services required of him and also failed to incorporate the skills he learned

through his limited participation. While it is true that petitioner remained drug free during the

improvement period, the record nonetheless shows that he was unsuccessful in his completion of

many of the other required terms of his improvement period. As petitioner correctly points out,

“[a]t the conclusion of the improvement period, the court shall review the

performance of the parents in attempting to attain the goals of the improvement

3

The mother’s parental rights were also terminated. The permanency plan for the child is

adoption in the current foster home.

3

period and shall, in the court’s discretion, determine whether the conditions of the

improvement period have been satisfied and whether sufficient improvement has

been made in the context of all the circumstances of the case to justify the return

of the child.” Syl. Pt. 6, In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).

Syl. Pt. 3, In re J.G., 240 W. Va. 194, 809 S.E.2d 453 (2018). Here, petitioner fails to recognize

that West Virginia Code § 49-4-610(4)(A) requires that when a parent is granted an improvement

period, the parent “shall be responsible for the initiation and completion of all terms of the

improvement period.” While petitioner may have possessed valid work excuses for certain

services, he nonetheless was required to comply with those services and complete the same.

Petitioner’s failure to complete those services designed to remedy the conditions of abuse and

neglect is attributable solely to his failure to accept his responsibility for their completion. This

Court has instructed 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). Therefore, even if petitioner had been fully compliant with services, which he was

not, the court would have still been required to consider the child’s best interests in determining

the appropriate disposition below. Given that the evidence established that petitioner had not

remedied the conditions of abuse and neglect at issue, it is clear that termination was appropriate.

Further, based on this same evidence, the circuit court found that there was no reasonable

likelihood that petitioner could substantially correct the conditions of abuse and neglect in the

near future. According to West Virginia Code § 49-4-604(d)(3), a situation in which there is no

reasonable likelihood that the conditions of abuse and neglect can be substantially corrected

includes one in which

[t]he 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.

Given the uncontested fact that petitioner failed to complete the required services to correct the

issues of abuse and neglect, this finding was clearly not in error. Similarly, the circuit court’s

finding that the child’s welfare required termination of petitioner’s parental rights was supported

by the testimony from various providers that returning the child to petitioner’s care was unsafe.

Pursuant to West Virginia Code § 49-4-604(c)(6), circuit courts are permitted to terminate

parental rights upon these findings. Further, this Court has held that

“[t]ermination of parental rights, the most drastic remedy under the statutory

provision covering the disposition of neglected children . . . 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(d)] . . .

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).

4

Syl. Pt. 5, in part, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). As such, we find no

error in the circuit court’s termination of petitioner’s parental rights. 4

For the foregoing reasons, we find no error in the decision of the circuit court, and its

August 25, 2020, order is hereby affirmed.

Affirmed.

ISSUED: March 16, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton

4

In support of this assignment of error, petitioner also, in one sentence, asserts that he

“finds it troubling” that the circuit court denied his motion for a continuance of the final

dispositional hearing and that the denial prevented him from being heard or otherwise presenting

evidence. Petitioner acknowledges, however, that this aside was “not set forth as an assignment

of error.” This is in violation of Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure,

which requires that arguments be organized “under headings that correspond with the

assignments of error.” That rule further requires that a petitioner cite to authorities relied on.

Given that petitioner failed to set forth this argument as a separate assignment of error with its

own argument in support and authorities relied on, we decline to address it on appeal.

5