In Re: A.S., H.S.-1, K.S.-1, K.S.-2 and G.S. ( 2017 )

STATE OF WEST VIRGINIA FILED
SUPREME COURT OF APPEALS
May 22, 2017
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
In re: A.S., H.S.-1, K.S.-1, K.S.-2 and G.S. OF WEST VIRGINIA
No. 16-0747 (Kanawha County 16-JA-94, 16-JA-95, 16-JA-96, 16-JA-97, & 16-JA-98)
MEMORANDUM DECISION
Petitioner Father H.S., by counsel Robby N. Long, appeals the Circuit Court of Kanawha
County’s July 11, 2016, order terminating his parental and custodial rights to A.S., H.S.-1, K.S.­
1, K.S.-2 and G.S. and denying his motion for an improvement period.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Michael L. Jackson, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Robin R.
Louderback, 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 denying his request for a post-adjudicatory
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.
In February of 2016, the DHHR filed an abuse and neglect petition against petitioner and
his girlfriend.2 Specifically, the petition alleged that the parties engaged in domestic violence in
the children’s presence and toward the children who lived in the home. The petition also alleged
that petitioner had an extensive history with Child Protective Services (“CPS”) and recently
completed a post-adjudicatory improvement period in a previous abuse and neglect case alleging
the same issues. Also, in February of 2016, the circuit court held a preliminary hearing but
continued the matter due to scheduling issues. Ultimately, in March of 2016, petitioner waived
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). Further, because some of the children and petitioner share
the same initials, we will refer to the children as H.S.-1, K.S.-1, and K.S.-2 throughout this
memorandum decision.
2
Petitioner’s girlfriend, N.S., is also G.S.’s mother.
1
his right to the preliminary hearing. The circuit court ordered that petitioner participate in
domestic violence counseling, submit to random drug screening, and undergo a psychological
evaluation. The circuit court further ordered that petitioner have no contact with his girlfriend.
In April of 2016, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the allegations in the petition and the circuit court adjudicated him as an abusing
parent. Specifically, petitioner admitted that he engaged in domestic violence in the children’s
presence. Following the adjudicatory hearing, petitioner filed a written motion for a post­
adjudicatory improvement period.
In June of 2016, the circuit court held a dispositional hearing during which it heard
testimony that petitioner and his girlfriend continued to have contact with each other, in violation
of the circuit court’s order. G.S.’s foster mother testified that she saw petitioner and his girlfriend
together at the Town Center Mall located in Charleston, West Virginia. The girlfriend testified
that she had constant contact with petitioner during the underlying proceedings and requested a
domestic violence protective order against him prior to the dispositional hearing. Petitioner
admitted to having constant contact with the girlfriend, despite the circuit court’s prohibition
against the same. He also admitted to meeting her at the Town Center Mall. The circuit court
also heard from the children wherein they recounted extensive domestic violence incidents
perpetrated by petitioner and his girlfriend against each other and the children.3 The children
expressed fear of petitioner and did not want to return to the home. Further, although he was
attending the required parenting and life skills services, petitioner’s case worker opined that
petitioner would not change his parenting habits based on the worker’s observations. He testified
that a previous abuse and neglect petition filed against petitioner and his girlfriend contained the
same allegations as the current petition. He further testified that petitioner and his girlfriend
completed an improvement period in the earlier case and within in a few months the current
petition was filed. Additionally, he testified that, despite losing the children, petitioner and his
girlfriend would not end their “toxic relationship” with one another. Another provider testified to
concerns over the parties’ ongoing relationship, especially in light of the children’s expressed
fear of the parties. As such, the circuit court found that there was no reasonable likelihood
petitioner could substantially correct the conditions of abuse and neglect, terminated his parental
rights to the children, and denied his motion for a post-adjudicatory improvement period, by
order entered on July 11, 2016.4 It is from that order that petitioner appeals.
3
On March 23, 2016, the circuit court held two separate in-camera interviews with
petitioner’s two oldest children, who appeared with the guardian. At the dispositional hearing,
the prosecuting attorney moved the circuit court to make the transcripts of the children’s
testimony a part of the record for dispositional purposes. The circuit court granted the motion.
4
All parental and custodial rights of all parents to G.S. were terminated below. The
guardian states that G.S. is in a foster home and the permanency plan is adoption therein.
Petitioner’s parental rights to A.S., H.S.-1, K.S.-1, and K.S.-2 were terminated below.
Additionally, the mother of those children, T.S., is deceased. The guardian states that A.S., H.S.­
1, K.S.-1, and K.S.-2, were placed in foster homes and the permanency plan is adoption therein.
2
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, the Court finds
no error in the circuit court’s denial of petitioner’s motion for a post-adjudicatory improvement
period.5
Petitioner argues that the circuit court erred in denying his motion for a post-adjudicatory
improvement period. In support of his argument, petitioner asserts that he acknowledged his
“problems” and participated in services. Upon our review, however, the Court finds that
petitioner failed to satisfy the applicable burden to obtain an improvement period. 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”).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 respondent 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).
Here, it is clear from the record on appeal that petitioner failed to demonstrate his ability
to fully participate in an improvement period. Petitioner has an extensive history of domestic
violence. The circuit court was presented with evidence that, despite receiving previous services,
petitioner continued to contact his girlfriend and engaged in verbal and physical altercations with
her. Petitioner’s own testimony supports the circuit court’s finding that he was unlikely to make
a meaningful change with regard to his parenting issues. It is clear from the record that petitioner
failed to accept responsibility for his actions and their impact on the children, as he repeatedly
5
Petitioner does not raise any issue on appeal regarding the circuit court’s termination of
his parental rights to A.S., H.S.-1, K.S.-1, K.S.-2, and G.S. As such, we do not address those
terminations in this memorandum decision.
3
violated the circuit court’s order. “Failure to acknowledge the existence of the problem, i.e., the
truth of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator of said
abuse and neglect, results in making the problem untreatable and in making an improvement
period an exercise in futility at the child’s expense.” In re Timber M., 231 W.Va. 44, 55, 743
S.E.2d 352, 363 (2013) (quoting Charity H., 215 W.Va. at 217, 599 S.E.2d at 640). As such, it is
clear that petitioner failed to establish that he was likely to fully participate in a post-adjudicatory
improvement period and we find no error in the circuit court denying petitioner’s motion.
Accordingly, we find no error below.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 11, 2016, order is hereby affirmed.
Affirmed.
ISSUED: May 22, 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
4