In re N.S., H.S., B.S., A.S., and J.S. ( 2018 )


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  •                                                       STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    FILED
    In re N.S., H.S., B.S., A.S., and J.S.
    May 14, 2018
    EDYTHE NASH GAISER, CLERK
    No. 18-0030 (Barbour County 17-JA-31, 32, 33, 34, and 38)
    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    MEMORANDUM DECISION
    Petitioner Father T.S., by counsel Keith Skeen, appeals the Circuit Court of Barbour
    County’s December 11, 2017, order terminating his parental rights to N.S., H.S., B.S., A.S., and
    J.S.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
    Brandolyn N. Felton-Ernest, filed a response in support of the circuit court’s order and a
    supplemental appendix. The guardian ad litem (“guardian”), Terri L. Tichenor, 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 his parental rights without imposing a less-restrictive
    alternative, and in terminating his parental rights without due process.
    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.
    The DHHR filed a petition in May of 2017 alleging that petitioner perpetrated multiple
    acts of domestic violence against the mother in the presence of the children. The DHHR alleged
    an extensive history of domestic violence and DHHR intervention beginning in 2009. The
    DHHR further alleged that the children were exhibiting aggressive behaviors and that those
    behaviors were a product of their environment. The circuit court ordered the removal of the
    children.
    Later in May of 2017, the circuit court held a preliminary hearing. Petitioner, who was
    incarcerated due to his violation of bond conditions and a domestic violence protective order
    (“DVPO”), did not appear, but was represented by counsel. The mother testified that the
    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
    domestic violence began when petitioner began abusing methamphetamine, prescription pills,
    and alcohol. The mother testified that petitioner struck her multiple times, with his fists and with
    objects, in the presence of the children, but denied that petitioner had ever been aggressive
    towards the children. The mother testified that the violence has resulted in “a few” DVPOs and
    in law enforcement intervention. The mother testified to an incident in which petitioner
    threatened to kill one or more of the children, which caused their schools to go on lockdown to
    ensure the safety of their children and others. The school attendance director testified that
    petitioner was placed upon the “predator” list and barred from entering any school property
    following those threats. The children’s mother denied having contact with petitioner since the
    most recent DVPO was issued, but described a recent incident where petitioner passed her on the
    street and threatened to slit her and her boyfriend’s throats. The circuit court found that the
    children were in imminent danger of further abuse or neglect and that their continuation in the
    home of the mother was contrary to their welfare.
    Petitioner attended the adjudicatory hearing in July of 2017, with counsel. The circuit
    court took testimony from the mother that was substantially similar to the testimony produced at
    the preliminary hearing and took judicial notice of the mother’s prior testimony along with
    various criminal and family court files. The circuit court noted the following: petitioner was
    previously convicted of three domestic battery charges and was granted alternative sentencing in
    the form of community corrections for the most recent charge in September of 2016; In May of
    2017, petitioner appeared at the community corrections office and blamed the DHHR
    intervention with the children on the mother; petitioner then threatened to “slit someone’s throat”
    and that, if he found the mother’s boyfriend, he would “shoot him and then himself;” petitioner
    stated that he had firearms buried on his property; petitioner was involuntarily committed for
    mental health treatment that day; and petitioner’s community corrections sentence was also
    revoked which resulted in his incarceration. The circuit court found that petitioner, despite
    entering a guilty plea in his criminal case, continued his threats of violence against the mother.
    Ultimately, the circuit court concluded that petitioner was an abusing parent and that the infant
    children were abused children. The mother was granted an improvement period and petitioner’s
    case was set for a dispositional hearing.2
    In October of 2017, petitioner was incarcerated and did not attend the dispositional
    hearing, but was represented by counsel. Petitioner moved for a post-dispositional improvement
    period, which both the DHHR and the guardian opposed. Counsel for petitioner proffered that he
    would be granted parole in December of 2017 and would then be able to participate in an
    improvement period. The circuit court noted petitioner’s testimony in the most recent criminal
    case that he “experiences anger so severe that he has ‘blackouts’ and does not remember his
    actions[.]” Further, as evidenced by “the public meltdown” in May of 2017, the circuit court
    found that petitioner was unable to correct his violence towards his family even while under the
    supervision of community corrections. Ultimately, the circuit court found that petitioner was a
    danger to the infant children and there was no likelihood that he could correct the conditions of
    2
    Before the dispositional hearing was held, petitioner moved for new counsel and current
    counsel was appointed.
    2
    abuse that led to the filing of the petition. Accordingly, the circuit court denied petitioner’s
    motion for a post-dispositional improvement period and terminated petitioner’s parental rights in
    its December 11, 2017, “Order Following Disposition Hearing.” Petitioner now appeals that
    order.3
    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, this Court
    finds no error in the proceedings below.
    On appeal, petitioner argues that the circuit court erred in terminating his parental rights
    without first granting him an improvement period. Petitioner asserts he should have been given
    an opportunity to participate in services. We disagree. 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) (“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) (“It is within the court’s discretion to grant an
    improvement period within the applicable statutory requirements”). We have also held that a
    parent’s “entitlement to an improvement period is conditioned upon the ability of the [parent] to
    demonstrate ‘by clear and convincing evidence, that the [parent] is likely to fully participate in
    the improvement period . . . .’” In re Charity H., 215 W.Va. 208, 215, 
    599 S.E.2d 631
    , 638
    (2004). Further, the circuit court has discretion to deny an improvement period when no
    improvement is likely. In re Tonjia M., 212 W.Va. 443, 448, 
    573 S.E.2d 354
    , 359 (2002).
    The circuit court did not err in denying petitioner’s motion for a post-dispositional
    improvement period because it was unlikely petitioner would make any improvement. Petitioner
    3
    The mother retains her parental rights and is currently participating in an improvement
    period. The children are presently placed with a relative. The permanency plan for the children is
    either return to the mother’s care or adoption in their current placement. J.S. has reached the age
    of maturity and, according to the parties, now lives with petitioner.
    3
    was participating in community corrections as an alternative sentence for a third-offense
    domestic battery conviction before the petition was filed. Petitioner’s immediate response to the
    petition was a “public meltdown,” including threats against the children’s mother and her
    boyfriend that necessitated involuntarily commitment of petitioner and resulted in a revocation of
    his alternative sentence. Apparently, petitioner made these violent, detailed statements in the
    community corrections office. Petitioner was under close supervision with obvious consequences
    for further violent acts but made no change from the pattern of domestic violence detailed in the
    mother’s testimony. Further, petitioner took no action to remedy his violent tendencies.
    Petitioner argues that the DHHR did not provide services to remedy the conditions of abuse.
    However, the circuit court found that the DHHR did make reasonable efforts to achieve
    permanency in both its adjudicatory and dispositional orders. Further, the circuit court found that
    the continual domestic violence against the mother in the presence of the children was clear and
    convincing evidence of chronic abuse by the petitioner. West Virginia Code § 49-4-604(b)(7)(A)
    provides that the DHHR is not required to make reasonable efforts to preserve the family if the
    circuit court determines that “[t]he parent has subjected the child, another child of the parent, or
    any other child . . . to . . . chronic abuse.” As such, it is clear that the DHHR was absolved of its
    statutory duty to make such efforts, despite the fact it nonetheless chose to do the same.
    Accordingly, we find that petitioner is not entitled to relief on this issue. The circuit court has
    discretion in its decision to grant an improvement period, and we find no abuse of discretion in
    this case.
    The same evidence supports the circuit court’s termination of petitioner’s parental rights.
    West Virginia Code § 49-4-604(b)(6) provides that, upon findings that “there is no reasonable
    likelihood that the conditions of neglect or abuse can be substantially corrected in the near future
    and, when necessary for the welfare of the [children],” the circuit may terminate the parental
    rights of an abusing parent. We have previously held that “[c]ourts are not required to exhaust
    every speculative possibility of parental improvement . . . where it appears that the welfare of the
    child will be seriously threatened . . . .” Cecil T., 228 W.Va. at 
    91, 717 S.E.2d at 875
    (quoting
    Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 
    266 S.E.2d 114
    (1980)). The circuit court
    correctly found that there was no reasonable likelihood that the conditions of neglect or abuse
    could be corrected in the near future because petitioner could not correct the conditions under the
    close supervision of his alternative sentence. Petitioner continued to make threats and pose a
    danger to the children’s mother even while in the community corrections office. Additionally,
    the circuit court correctly found that it was necessary for the welfare of the children to terminate
    petitioner’s parental rights. Petitioner’s past actions included threats against one or more of the
    children. Petitioner’s unpredictable behavior continued to threaten the children and he made no
    effort to change his behavior. Accordingly, we find no error in the circuit court’s termination of
    petitioner’s parental rights.
    Petitioner’s final argument is that the circuit court erred and denied him due process by
    holding hearings in his absence. Specifically, petitioner argues that the circuit court should have
    considered the multiple factor test set forth in In re Stephen Tyler R., 213 W.Va. 725, 
    584 S.E.2d 581
    (2003), and concluded that petitioner should have been transported to these hearings.
    However, we have held that
    4
    an incarcerated parent who is a respondent to an abuse and neglect proceeding
    must inform the circuit court in which such case is pending that he/she is
    incarcerated and request the court’s permission to attend the hearing(s) scheduled
    therein. Once the circuit court has been so notified, by the respondent parent
    individually or by the respondent parent’s counsel, the determination of whether
    to permit the incarcerated parent to attend such hearing(s) rests in the court’s
    sound discretion.
    Stephen Tyler R., 213 W.Va. at 
    734, 584 S.E.2d at 590
    (2003) (emphasis added). Petitioner does
    not cite to a place in the record where he requested to be transported to the dispositional hearing
    or where counsel objected to his absence. “‘Our general rule is that nonjurisdictional questions . .
    . raised for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc.,
    206 W.Va. 333, 349 n.20, 
    524 S.E.2d 688
    , 704 n.20 (1999).” Noble v. W.Va. Dep’t of Motor
    Vehicles, 223 W.Va. 818, 
    679 S.E.2d 650
    (2009). Accordingly, we find that petitioner is entitled
    to no relief on this basis.
    Lastly, because the proceedings in circuit court regarding the mother are still ongoing,
    this Court reminds the circuit court of its duty to establish permanency for the children. 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
    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 children
    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.
    5
    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
    December 11, 2017, order is hereby affirmed.
    Affirmed.
    ISSUED: May 14, 2018
    CONCURRED IN BY:
    Chief Justice Margaret L. Workman
    Justice Robin Jean Davis
    Justice Menis E. Ketchum
    Justice Allen H. Loughry II
    Justice Elizabeth D. Walker
    6