STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: C.S. September 5, 2017
RORY L. PERRY II, CLERK
No. 17-0379 (Mingo County 16-JA-58) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father J.W., by counsel Susan J. Van Zant, appeals the Circuit Court of Mingo
County’s March 30, 2017, order terminating his parental rights to C.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”), Diana Carter Wiedel,
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 without granting
him an improvement period.
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 August 16, 2016, the DHHR filed an abuse and neglect petition against the mother of
the child, petitioner, and a then-unknown father. Both petitioner and the unknown father were
listed in the petition because the mother believed petitioner was the father, but was uncertain. In
January of 2017, petitioner requested a DNA test to determine if he was the child’s father.
Petitioner appeared for DNA testing in February of 2017, after two missed appointments. Results
of testing confirmed that petitioner is the child’s father. 2
In the petition, the DHHR alleged that the mother had ongoing issues with drug abuse
and, after the initiation of proceedings, failed to comply with in-home services. As to petitioner,
the DHHR alleged that he failed to contact or show any interest in the child. Because his
whereabouts were unknown, the DHHR provided notice of the abuse and neglect proceedings to
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).
2
After petitioner’s paternity was established, the circuit court removed the unknown
father from the matter in its March 30, 2017, order.
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petitioner by order of publication. The circuit court held a preliminary hearing on August 17,
2016. Petitioner did not attend the hearing, but was represented by court-appointed counsel.
In November of 2016, the circuit court held an adjudicatory hearing. Petitioner did not
attend the hearing, but was represented by counsel. The circuit court found that there was proper
notice to petitioner, pursuant to West Virginia Code § 49-4-601(e)(4).3 The circuit court further
found that petitioner neglected and failed to protect the child. The circuit court held a status
hearing on November 30, 2016, which petitioner did not attend. Petitioner’s attorney advised that
she had not had any contact with petitioner. The DHHR advised the circuit court that petitioner
had not made himself available for paternity testing or services.
According to petitioner, in January of 2017, he first became aware of proceedings,
contacted his attorney, and attended a multi-disciplinary team meeting.
The circuit court held the dispositional hearing in March of 2017. Petitioner did not
appear at the hearing, but was represented by counsel. The circuit court found that petitioner was
not willing or able to correct the conditions of neglect and also found no reasonable likelihood
that the conditions of neglect could be corrected in the near future. Ultimately, the circuit court
terminated petitioner’s parental rights to the child.4 It is from the March 30, 2017, 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).
3
West Virginia Code § 49-4-601 (e)(4) states that, “If service cannot be obtained by
personal service or by certified mail, notice shall be by publication as a Class II legal
advertisement in compliance with article three, chapter fifty-nine of this code.”
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The mother’s parental rights to the child were also terminated below. According to the
guardian and the DHHR, the child is placed in a foster home. The permanency plan is adoption
in that home.
2
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 in the circuit court’s findings below.
Petitioner argues that he should have been granted an improvement period after paternity
was established in the proceedings below. We disagree. In order to obtain an improvement
period, West Virginia Code § 49-4-610 requires that the parent “demonstrate by clear and
convincing evidence that [the parent] was likely to fully participate in an improvement period . . .
.” Further, we have often noted that the decision to grant or deny an improvement period rests in
the sound discretion of the circuit court. See In re: M.M., 236 W.Va. 108, 115, 778 S.E.2d 338,
345 (2015) (stating that “West Virginia law allows the circuit court discretion in deciding
whether to grant a parent an improvement period”); Syl. Pt. 6, in part, In re Katie S., 198 W.Va.
79, 479 S.E.2d 589 (1996) (holding that “[i]t is within the court’s discretion to grant an
improvement period within the applicable statutory requirements”).
Here, petitioner did not demonstrate that he would be likely to fully participate in an
improvement period because he did not attend any of the hearings and did not take the DNA test
until February of 2017, several months after the petition was filed and he was made aware of the
proceedings. Petitioner argues that after he found out that the petition was filed and that he may
be the father of the child, he “fully cooperated.” However, petitioner did not attend a single
hearing during the proceedings. He also missed two appointments for his DNA test. Even after
paternity of the child was confirmed, petitioner did not attend the dispositional hearing or make
himself available to receive services. Thus, not only did petitioner not demonstrate by clear and
convincing evidence that he would be likely to fully participate in an improvement period, he
failed to move for an improvement period as required by West Virginia Code § 49-4-610. For
these reasons, we find that the circuit court was correct in denying petitioner an improvement
period.
Next, petitioner argues that the circuit court erred in terminating his parental rights. We
do not agree. We have previously held that
“[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 [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). Here, the evidence showed that
there was no reasonable likelihood that petitioner could substantially correct the conditions of
neglect. West Virginia Code § 49-4-604(c)(3) provides that “no reasonable likelihood that
conditions of neglect or abuse can be substantially corrected” exists when “[t]he abusing parent .
. . ha[s] not responded to or followed through with a reasonable family case plan or other
rehabilitative efforts . . . ” At the time of the dispositional hearing, the child was ten months old.
Throughout the proceedings, and even after a DNA test confirmed that he is the father of the
child, petitioner did not attempt to make contact with or support the child. Further, petitioner did
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not attend hearings or make himself available for services. For these reasons, we find no error in
the circuit court’s termination of petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
March 30, 2017, order is hereby affirmed.
Affirmed.
ISSUED: September 5, 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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