STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
May 22, 2017
RORY L. PERRY II, CLERK
In re: B.S.-1, E.S., C.S., and S.W.
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 16-1087 (Preston County 15-JA-12, 15-JA-13, 15-JA-14, and 15-JA-15)
MEMORANDUM DECISION
Petitioner Mother T.S., by counsel Richard Gutmann, appeals the Circuit Court of
Preston County’s October 11, 2016, order terminating her parental and custodial rights to B.S.-1,
E.S., C.S., and S.W.1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Lee Niezgoda, filed a response in support of the circuit court’s order. The
guardian ad litem (“guardian”), Kristen D. Antolini, 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 her parental and custodial rights without imposing a less-restrictive dispositional
alternative.2
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 2015, the DHHR filed an abuse and neglect petition against the parents.
Specifically, the petition alleged that the father had a long history of domestic violence toward
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). Further, because one of the children and a father share the
same initials, we will refer to them as B.S.-1 and B.S.-2 throughout this memorandum decision.
2
We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and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 on May 20, 2015. In this memorandum decision, we apply the statutes as they
existed during the pendency of the proceedings below. It is important to note, however, that the
abuse and neglect statutes underwent minor stylistic revisions and the applicable changes have
no impact on the Court’s decision herein.
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petitioner’s three children who lived in the home. In fact, the petition alleged that the father was
twice arrested as a result of his physical violence toward the children, including incidents in
which he repeatedly struck the children in the face with various objects. As to petitioner, the
DHHR alleged that she failed to protect the children from the father’s abuse and posted his bond
after his arrest. The petition also alleged that petitioner admitted to the illegal use of
buprenorphine during her pregnancy with S.W. Lastly, the petition alleged that the home was in
deplorable condition and that the parents failed to provide the children with adequate medical
care.
In March of 2015, petitioner filed a written stipulation to allegations in the petition, and
the circuit court adjudicated her as an abusing parent.3 Specifically, petitioner admitted that she
failed to terminate her relationship with the father following his arrests for abusing the children.
Petitioner further stipulated to several conditions that she was required to address, including
learning to protect the children, providing them with a safe home, and undergoing parenting and
life skills services, among other issues. The circuit court also granted petitioner a post
adjudicatory improvement period. In February of 2016, the circuit court granted petitioner an
improvement period as disposition in order to permit additional counseling.
In July of 2016, the circuit court held a series of dispositional hearings, during which it
heard testimony from the psychologist treating the children. According to the psychologist, the
children expressed fear of the father and did not want him to return to petitioner’s home.
Moreover, the visitation supervisor testified that the father exhibited inappropriate behavior
during visits, including raising his voice at the children. This caused the supervisor concern,
especially in light of unsolicited disclosures from the children regarding the father’s past
maltreatment. In regard to her court ordered drug screens, the circuit court also heard evidence
that petitioner tested positive for marijuana and illicit buprenorphine on three occasions and
failed to appear for eighteen drug screens from February of 2016 through April of 2016. Further,
although she attended the required parenting and life skills services, petitioner’s provider
testified that petitioner did not make meaningful progress with these services and opined that she
would not change her parenting habits based on the provider’s observations. Additionally, one
service provider testified to having seen petitioner and the father together despite their insistence
that they ended their relationship. Another provider testified to concerns over an ongoing
relationship between the parents, especially in light of the children’s express fear of the father.
As such, the circuit court found that there was no reasonable likelihood petitioner could
3
In actuality, the circuit court adjudicated petitioner as a “neglecting parent.” However,
West Virginia Code § 49-1-201, in relevant part, defines “abusing parent” as “a parent . . . whose
conduct has been adjudicated by the court to constitute child abuse or neglect as alleged in the
petition charging child abuse or neglect.” Because the definition of “abusing parent”
encompasses parents who have been adjudicated of abuse or neglect, we will use the correct
statutory term throughout this memorandum decision.
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substantially correct the conditions of abuse and neglect and terminated her parental and
custodial rights to the children.4 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 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. On appeal, petitioner argues that the circuit court erred in failing to impose a less-
restrictive dispositional alternative in light of the fact that she participated in services,
acknowledged her deficient parenting, made significant progress, and established a strong bond
with the children. The Court, however, does not agree.
Simply put, petitioner’s argument ignores the facts of the case below. Specifically, the
circuit court found that petitioner was not compliant with services and failed to remedy the
conditions of abuse and neglect in the home. These findings were based on substantial evidence,
including evidence of petitioner’s multiple positive drug screens and failure to fully submit to
4
The parental rights of S.W.’s father, C.W., and his mother, petitioner, were terminated
below. The parental rights of B.S.-2, the father of B.S.-1 and E.S., and the unknown father of
C.S. remain intact. Specifically, the DHHR withdrew any allegations against B.S.-2, the father of
B.S.-1 and E.S., during the proceedings below, although the record does not reflect why the
DHHR never returned the children to his custody. Additionally, the guardian indicates that after
the dispositional hearings below, the parties discovered that C.S. had an unknown father, at
which point the parties attempted to identify and locate this individual. All the children currently
reside with their maternal grandparents. Because both his parents’ parental rights were
terminated, S.W. has no impediments to adoption. According to the guardian, as of the filing of
her response brief, the permanency plan for B.S.-1, E.S., and C.S. is also adoption in that home,
following (1) a potential termination of the unknown father’s rights to C.S., and (2) B.S.-2, the
father of B.S.-1 and E.S., consenting to that adoption. The guardian further states that the
concurrent permanency plan is granting legal guardianship of B.S.-1, E.S., and C.S. to the
maternal grandparents.
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court ordered drug screens. Moreover, as set forth above, petitioner’s service provider testified
that petitioner failed to implement any of the skills she was taught in her services, despite the fact
that she completed the same. Additionally, petitioner’s argument regarding the bond between her
and the children ignores the fact that the children feared the father and blamed petitioner for
failing to protect them from him. In fact, the circuit court specifically found that B.S. was “very
angry at [petitioner] for choosing [the father] over the children.” Finally, petitioner ignores the
fact that, contrary to her testimony about terminating her relationship with the father, the circuit
court heard testimony from individuals who saw petitioner and the father together during the
pendency of the proceedings below.
Pursuant to West Virginia Code § 49-4-604(c)(3), a situation in which there is no
reasonable likelihood 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 .
...
Based upon the substantial evidence outlined above, the circuit court found there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect because she failed to follow through with services designed to remedy the conditions of
abuse and neglect. The circuit court further found that termination of petitioner’s parental and
custodial rights was necessary for the children’s welfare. Pursuant to West Virginia Code § 49-4
604(b)(6), circuit courts are directed to terminate a parent’s parental and custodial rights upon
such findings. Further, we have held as follows:
“Termination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, W. Va.Code [§]
49-6-5 [now 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 W. Va.Code [§] 49-6-5(b) [now 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). Accordingly, we find no error
below.
This Court reminds the circuit court of its duty to establish permanency for the child.
Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires:
At least once every three months until permanent placement is achieved as
defined in Rule 6, the court shall conduct a permanent placement review
conference, requiring the multidisciplinary treatment team to attend and report as
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to progress and development in the case, for the purpose of reviewing the progress
in the permanent placement of the child.
Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child
within twelve months of the date of the disposition order. As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia
Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
placement of an abused and neglected child following the final dispositional order
must be strictly followed except in the most extraordinary circumstances which
are fully substantiated in the record.
Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that
[i]n determining the appropriate permanent out-of-home placement of a
child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4
604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
home for the child and shall consider other placement alternatives, including
permanent foster care, only where the court finds that adoption would not provide
custody, care, commitment, nurturing and discipline consistent with the child’s
best interests or where a suitable adoptive home can not be found.
Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).
For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 11, 2016, order is hereby affirmed.
Affirmed.
ISSUED: May 22, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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