In re E.I. ( 2022 )

FILED
September 20, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re E.I.
No. 22-0098 (Ohio County 21-JA-77)
MEMORANDUM DECISION
Petitioner Father C.W., by counsel Dean E. Williams, appeals the Circuit Court of Ohio
County’s January 4, 2022, order terminating his parental rights to E.I. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and Mindy
M. Parsley, filed a response in support of the circuit court’s order. The guardian ad litem, Joseph
J. Moses, filed a response on behalf of the child in support of the circuit court’s order and a
supplemental appendix.
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 2021, the DHHR filed a petition alleging that petitioner abused and neglected
the child by virtue of the prior involuntary termination of his parental rights to an older child. The
DHHR also alleged that petitioner had a history of criminal convictions, including drug crimes,
crimes of violence, and sexual crimes that required him to register as a sex offender. Petitioner
was incarcerated at the outset of the proceedings and remained incarcerated throughout.
Thereafter, petitioner stipulated to the allegations against him at an adjudicatory hearing in August
of 2021, at which time the court found that he abused and neglected the child.
At the dispositional hearing in November of 2021, the circuit court found that petitioner
had not remedied the issues present in his prior abuse and neglect case. Specifically, the court
noted that petitioner was in substantially the same position as he was when his rights to an older
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
child were involuntarily terminated. Most notably, the court highlighted petitioner’s status as a sex
offender and an evaluator’s determination that he was at a significant risk to re-offend. Based upon
the evidence, the court concluded that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future, which was “exacerbated
by the threat of domestic violence” petitioner posed to the child’s mother. The court also found
that termination of petitioner’s right was necessary for the child’s welfare. Accordingly, the court
terminated petitioner’s parental rights. 2 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).
On appeal, petitioner argues that the court erred in terminating his parental rights without
undertaking an appropriate analysis of the factors addressed in Cecil T. We disagree, as the court
was under no obligation to undertake that analysis. As we directed in that matter, circuit courts are
required to analyze certain factors, such as the nature of the offense and the length of incarceration,
“[w]hen 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.” Id. at 91, 717 S.E.2d at 875, Syl. Pt. 3, in part. Critically,
the circuit court in this matter considered several factors beyond petitioner’s incarceration when
determining that there was no reasonable likelihood that he could substantially correct the
conditions of abuse and neglect in the near future. This includes his failure to obtain treatment,
other than substance abuse treatment, following the termination of his rights to the older child; the
fact that the same conditions that led to the prior involuntary termination persisted; his status as a
sex offender; and the “credible threats of domestic violence” involving petitioner. Simply put,
petitioner cannot be entitled to relief on the basis that the court failed to undertake the analysis in
Cecil T. mentioned above, because such analysis was not required.
Petitioner also argues that a less restrictive disposition was appropriate, but we have
explained as follows:
2
The permanency plan is for the child to remain in the custody of the nonabusing mother.
2
“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(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).
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Here, the court made the requisite
findings based upon substantial evidence, thereby demonstrating that a less restrictive alternative
was not appropriate. As such, 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
January 4, 2022, order is hereby affirmed.
Affirmed.
ISSUED: September 20, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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