In re N.W.-1 and N.W.-2 ( 2024 )

FILED
November 26, 2024
C. CASEY FORBES, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re N.W.-1 and N.W.-2
No. 23-655 (Marion County CC-24-2022-JA-141 and CC-24-2022-JA-142)
MEMORANDUM DECISION
Petitioner Father N.W.-31 appeals the Circuit Court of Marion County’s June 27, 2023,
order terminating his parental and custodial rights to N.W.-1 and N.W.-2, arguing that the circuit
court erred in failing to impose a less restrictive dispositional alternative.2 Upon our review, we
determine that oral argument is unnecessary and that a memorandum decision affirming the circuit
court’s order is appropriate. See W. Va. R. App. P. 21.
The DHS filed a petition in November 2022, in which it alleged that the petitioner’s
incarceration following his arrest for murder constituted abandonment and rendered him unable to
care for the children. The petitioner later stipulated to the allegation at an adjudicatory hearing in
February 2023. Accordingly, the court adjudicated the petitioner of abusing and neglecting the
children based upon his abandonment.
The matter came on for a final dispositional hearing in May 2023. The petitioner sought a
continuance pending the outcome of his criminal trial scheduled for August 2023. Citing Rule 53
of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, the DHS
1
The petitioner appears by counsel Michael Safcsak. The West Virginia Department of
Human Services appears by counsel Attorney General Patrick Morrisey and Assistant Attorney
General Andrew T. Waight. Counsel Diane D. Michael appears as the children’s guardian ad litem.
Additionally, pursuant to West Virginia Code § 5F-2-1a, the agency formerly known as
the West Virginia Department of Health and Human Resources was terminated. It is now three
separate agencies—the Department of Health Facilities, the Department of Health, and the
Department of Human Services. See W. Va. Code § 5F-1-2. For purposes of abuse and neglect
appeals, the agency is now the Department of Human Services (“DHS”).
2
We use initials where necessary to protect the identities of those involved in this case.
See W. Va. R. App. P. 40(e). Because the children and the petitioner share the same initials, we
use numbers to differentiate them.
3
That rule provides as follows: “Under no circumstances shall a child abuse and neglect
proceeding be delayed pending the initiation, investigation, prosecution, or resolution of any other
proceeding, including, but not limited to, criminal proceedings.”
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objected to a continuance. The court denied the motion. In support of disposition, the DHS
presented a witness who testified that the petitioner was incarcerated for the entirety of the
proceedings, had no visits with the children, and received no remedial services as a result of his
incarceration. The petitioner requested disposition under West Virginia Code § 49-4-604(c)(5)
because the children were in a kinship placement and so that he could seek modification after his
criminal trial depending on the outcome. The court denied this request and terminated the
petitioner’s parental and custodial rights. In support, the court found that there was no reasonable
likelihood that the petitioner could remedy the conditions of abuse and neglect in the future. The
court additionally found that it was in the children’s best interests to terminate the petitioner’s
rights. Accordingly, the court terminated the petitioner’s parental and custodial rights to the
children.4 The petitioner appealed from the dispositional order. Subsequent to the filing of the
petitioner’s brief, the respondents provided supplemental updates to this Court in which they
indicated that the petitioner was convicted of multiple crimes, including first-degree murder. The
DHS indicated that the petitioner “will serve life imprisonment without parole.”
On appeal from a final order in an abuse and neglect proceeding, this Court reviews the
circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re
Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Before this Court, the petitioner raises a single
assignment of error in which he alleges that the circuit court should have granted him disposition
under West Virginia Code § 49-4-604(c)(5). However, it is critical to note that the petitioner does
not challenge the circuit court’s findings upon which termination was based. Namely, that there
was no reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected in the near future and that termination of his rights was in the children’s best interests.
Circuit courts are permitted to terminate parental and custodial rights upon these findings, in
accordance with West Virginia Code § 49-4-604(c)(6), and the petitioner’s failure to challenge
them in any way leaves him entitled to no relief. See Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558,
712 S.E.2d 55 (2011) (quoting Syl. Pt. 2, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980))
(“Termination of parental rights . . . 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.”).
We must, however, address the circuit court’s reliance on the petitioner’s incarceration as
a basis for termination by noting the following:
When 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, the circuit
court shall evaluate whether the best interests of a child are served by terminating
the rights of the biological parent in light of the evidence before it. This would
necessarily include but not be limited to consideration of the nature of the offense
for which the parent is incarcerated, the terms of the confinement, and the length of
the incarceration in light of the abused or neglected child’s best interests and
paramount need for permanency, security, stability and continuity.
4
The mothers’ parental and custodial rights were also terminated. The permanency plan
for the children is adoption in the current placement.
2
In re Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, Syl. Pt. 3. The record here shows that the
circuit court failed to undertake this required analysis prior to terminating the petitioner’s parental
and custodial rights. However, that does not preclude this Court from undertaking its own analysis
based upon the parties’ updates. See Syl. Pt. 5, In re A.F., 246 W. Va. 49, 866 S.E.2d 114 (2021)
(quoting Syl. Pt. 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965)) (“This Court may,
on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on
any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by
the lower court as the basis for its judgment.”).
The circumstances of In re A.F. were almost identical to those presently before this Court.
There, we found that a circuit court’s analysis of the In re Cecil T. factors was lacking, in part,
because it was based on evidence of the parent’s pre-trial incarceration. In re A.F., 246 W. Va. at
55, 866 S.E.2d at 120. However, despite finding that the circuit court’s In re Cecil T. analysis was
erroneous, we nonetheless noted that this was “not the end of our inquiry,” given that the Court
had sufficient information from the parties’ updates to conduct its own In re Cecil T. analysis. Id.
at 56, 866 S.E.2d at 121. Based on that analysis, the Court ultimately affirmed the termination of
parental rights in that matter. Id. at 57, 866 S.E.2d at 122.
Here, the petitioner’s argument that he could possibly correct the conditions of abuse and
neglect because he believed he could be released from incarceration is entirely without merit, given
his subsequent conviction and the reality that he will remain incarcerated for life. As we stated in
In re A.F., “the nature of the offense is an important factor that a court must consider when
conducting a Cecil T. analysis.” Id. at 55, 866 S.E.2d at 120. Given the serious nature of the offense
and the length of the petitioner’s incarceration, it is clear that application of the required factors
supports the termination of the petitioner’s parental and custodial rights. Further, termination of
the petitioner’s rights was clearly in the children’s best interests, given that he will not be released
from incarceration, the mothers’ rights have been terminated, and the children are preparing for
adoption. Accordingly, in consideration of all the necessary factors set forth in In re Cecil T., we
conclude that the petitioner is entitled to no relief.
For the foregoing reasons, we find no error in the decision of the circuit court, and its June
27, 2023, order is hereby affirmed.
Affirmed.
ISSUED: November 26, 2024
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice C. Haley Bunn
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CONCURRING, IN PART, AND DISSENTING, IN PART:
Justice John A. Hutchison
Justice William R. Wooton
Wooton, Justice, concurring, in part, and dissenting, in part, joined by Justice Hutchison:
I concur with the majority’s conclusion: “The record here shows that the circuit court failed
to undertake . . . [the In re Cecil T.] required analysis prior to terminating the petitioner’s parental
and custodial rights.” See In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Specifically, in
syllabus point three of In re Cecil T., this Court unequivocally held
[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, the circuit court shall
evaluate whether the best interests of a child are served by
terminating the rights of the biological parent in light of the
evidence before it. This would necessarily include but not be limited
to consideration of the nature of the offense for which the parent is
incarcerated, the terms of the confinement, and the length of the
incarceration in light of the abused or neglected child’s best interests
and paramount need for permanency, security, stability and
continuity.
228 W. Va. at 91, 717 S.E.2d at 875, Syl. Pt.3 (emphasis added).
However, notwithstanding the clear directive in In re Cecil T. that the duty to evaluate the
facts of a case rests with the circuit court and not with this Court, the majority goes on to decide
the merits of the appeal – affirming the circuit court’s termination of the petitioner father N.W.-3’s
parental rights – based on its own evaluation of factual information never presented below.
As set forth in my separate opinion in In re A.F., 246 W. Va. 49, 866 S.E.2d 114 (2021),
another case in which the circuit court had failed to do a proper In re Cecil T. analysis but the
majority nonetheless affirmed:
[T]he proper remedy for that error is vacation of the order and
remand for adequate fact-finding and analysis by the circuit court. It
is not the place of this Court to step into the adjudicatory role of the
circuit court and preemptively resolve the case after finding error—
particularly where additional, critical facts have been developed
pending appeal. This Court has long held that “[w]hen the requisite
procedure is not followed in an abuse and neglect case[ ] . . . the
order resulting from such deviation will be vacated and the case will
be remanded for entry of an order that satisfies the procedural
4
requirements[.]” In re Emily G., 224 W. Va. 390, 396, 686 S.E.2d
41, 47 (2009).
In re A.F., 246 W. Va. at 57, 866 S.E.2d at 122 (Wooton, J., concurring, in part, and dissenting, in
part).
Despite the clear directive in In re Cecil T. that the circuit court “shall evaluate” whether
the child’s best interests were served by terminating the petitioner’s parental rights due to his
incarceration, the circuit court did no such analysis. See 228 W. Va. at 91, 717 S.E.2d at 875, Syl.
Pt.3. Instead of vacating the legally infirm dispositional order and remanding the case to the court
for the requisite evaluation of the evidence before it, the majority determines that it can simply
“undertak[e] its own analysis based upon the parties’ updates[,]” which indicate that the petitioner
was convicted on August 15, 2024, of multiple crimes including first-degree murder, and, based
upon the jury’s failure to recommend mercy, the petitioner “will serve life imprisonment without
parole.”
1
However, the status updates2 filed by the guardian ad litem and the West Virginia Department
of Human Services in this Court only contain information – not evidence – which critically was
not even available at the time of the circuit court’s decision.
Succinctly stated, the majority has again “determined that, despite the circuit court’s failure
to properly consider and apply the balancing test set forth in Cecil T., the late-developed record is
adequate to post-hoc affirm the petitioner’s termination.” In re A.F., 246 W. Va. at 58, 866 S.E.2d
at 123. As was the case in In re A.F., “[t]here is simply nothing in the record before this Court
which adequately salvages the circuit court’s otherwise erroneous dispositional order terminating
petitioner’s parental rights.” Id. at 60, 866 S.E.2d at 125. Accordingly, I respectfully dissent to
the majority’s affirmation of the court’s termination of the petitioner’s parental rights.
I do not suggest that upon consideration of the fully developed record as mandated by In
re Cecil T., the circuit court may not properly determine that termination of the petitioner’s rights
is in best interests of the children. See 228 W. Va. at 91, 717 S.E.2d at 875, Syl. Pt.3. Rather, I
dissent from the majority’s determination that it can do its own factfinding on appeal rather than
remanding the matter to the circuit court – the exclusive forum for factfinding in an abuse and
neglect case.
For the foregoing reasons, I respectfully concur, in part, and dissent, in part. I am
authorized to state that Justice Hutchison joins me in this separate opinion.
1
At the time of the circuit court’s decision, the evidence before the court was that the
petitioner was incarcerated and was in jail awaiting trial on the charges of several crimes, including
first-degree murder. The petitioner was adjudicated as abusing and neglecting based on this
evidence as he voluntarily stipulated to abandonment due to his incarceration and inability to care
for his children.
2
The status updates were filed on September 27, 2024, and September 19, 2024, long after
the circuit court’s order, which is the subject of this appeal, was entered on June 27, 2023.
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