In Re: B.S.-2, T.S. and D.S. ( 2016 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: B.S.-2, T.S., and D.S.
November 21, 2016
RORY L. PERRY II, CLERK
No. 16-0374 (Monongalia County 15-JA-37, 15-JA-38, & 15-JA-39) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father B.S.-1, by counsel Scott A. Shough, appeals the Circuit Court of
Monongalia County’s January 15, 2016, order terminating his parental rights to eight-month-old
B.S.-2, eleven-year-old T.S., and nine-year-old D.S.1 The West Virginia Department of Health
and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed its response in support of the
circuit court’s order. The guardian ad litem (“guardian”), Michelle L. Minutelli, filed a response
on behalf of the children also in support of the circuit court’s order. On appeal, petitioner argues
that the circuit court erred in denying his motion to continue the dispositional hearing and in
terminating his parental rights to the children.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 June of 2015, the DHHR filed an abuse and neglect petition against petitioner alleging
that his parental rights to another child had been previously terminated. The petition contained
additional allegations that the mother abused illegal drugs throughout her pregnancy with B.S.-2
and had a history of substance abuse that affected her ability to parent. Subsequently, petitioner
waived his rights to a preliminary hearing.
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). Because one of the children and petitioner in this case share
the same initials, we have distinguished each of them using numbers 1 and 2 after their initials in
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 ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed at the time of the lower court proceedings.
1
In July of 2015, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the allegations as contained in the petition. Based upon petitioner’s stipulation, the
circuit court found that petitioner abused the children. In September of 2015, the circuit court
held an initial dispositional hearing during which it granted petitioner’s motion for a post­
adjudicatory improvement period. The terms and conditions of petitioner’s improvement period
required him to submit to a psychological evaluation and random drug screens, participate in
parenting and adult life skills education, and enter an inpatient drug treatment facility. He was
also granted supervised visits with the children.
In November of 2015, the circuit court held a hearing to review petitioner’s post­
adjudicatory hearing. A DHHR worker testified that petitioner failed to participate in random
drug screens after testing positive for cocaine in July of 2015. The worker also testified that
petitioner failed to enter an inpatient drug treatment facility or regularly attend parenting and
adult life skills services. The worker further testified that petitioner also had not visited the
children since October of 2015. At the close of the evidence, the circuit court terminated
petitioner’s post-adjudicatory improvement period.
In January of 2016, the circuit court held a final dispositional hearing wherein petitioner
failed to appear in person. Petitioner’s counsel moved the circuit court for a continuance. The
circuit court denied said motion and based its denial on petitioner’s failure to participate in the
proceedings by his absence. By order entered on January 15, 2016, the circuit court terminated
petitioner’s parental rights to the children. In doing so, it found that petitioner failed to
successfully complete his improvement period or participate in services. The circuit court also
found that petitioner failed to submit to random drug screening, attend substance abuse
treatment, or attend regular visitation with the children. The circuit court further found that
petitioner failed to attend a hearing despite receiving notice. It also found that it was in the
children’s best interest to terminate petitioner’s parental rights. It is from this order that
petitioner now 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).
2
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, we find no
error in the circuit court’s denying petitioner’s motion to continue the dispositional hearing or in
terminating his parental rights.
On appeal, petitioner argues that the circuit court erred in denying his motion to continue
the dispositional hearing because he appeared at the first three hearings during this matter and
that it was only after October of 2015 that his attendance became “problematic.” We disagree.
We have previously held that the decision to grant a motion for a continuance in an abuse and
neglect proceeding “is a matter left to the discretion of the circuit court.” In re Tiffany Marie S.,
196 W.Va. 223, 235, 470 S.E.2d 177, 189 (1996). As previously mentioned, the record on appeal
indicates that petitioner was represented by counsel at the dispositional hearing. Contrary to
petitioner’s argument, his presence would not have had an impact on the hearing. The record on
appeal indicates that petitioner failed to make any progress during the pendency of this case. As
such, we find that the circuit court did not err in denying petitioner’s motion to continue.
Next, petitioner argues that the circuit court erred in terminating his parental rights
because he expressed a “desire to seek and complete” substance abuse treatment through the
United States Veteran’s Administration. Pursuant to West Virginia Code § 49-4-604(c)(3), a
situation in which there is no reasonable likelihood that the conditions of abuse or neglect can be
substantially corrected includes one in which a respondent 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.
However, we have held that “[t]ermination . . . 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.” Syl. Pt. 7, In re Katie S., 198
W.Va. 79 at 82, 479 S.E.2d 589 at 592 (1996).
In the proceedings below, the circuit court was presented with sufficient evidence to
determine that there was no reasonable likelihood that petitioner could have substantially
corrected the conditions of abuse or neglect in the near future. As discussed above, petitioner
failed to enter an inpatient drug treatment program and failed to submit to random drug screens,
after testing positive for drugs during the pendency of the abuse and neglect proceedings.
Further, as noted by the circuit court in its findings, petitioner failed to participate in services and
it is in the children’s best interest to terminate petitioner’s rights. Consequently, under the facts
presented here, we find no error in the circuit court’s termination order.
For the foregoing reasons, we hereby affirm the circuit court’s January 15, 2016, order.
Affirmed.
ISSUED: November 21, 2016
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CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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