In Re: A.S.-1
16-0549
| W. Va. | Nov 14, 2016Background
- DHHR filed an abuse-and-neglect petition (Sept. 2015) alleging father (A.S.-2) failed to provide for his child (A.S.-1) due to longstanding criminal activity, violent history, and substance abuse; mother had chronic drug abuse issues.
- Father stipulated at adjudication to the petition’s allegations and was adjudicated an abusing parent.
- Father sought a post-adjudicatory improvement period; hearings revealed extensive criminal convictions (including violent offenses), repeated parole violations, long history of drug use, and psychological evaluations giving a guarded prognosis and increased risk to reoffend.
- Father presented certificates from rehabilitative programs (some completed during prior incarcerations) and testified he would comply; he was paroled in April 2016.
- The circuit court denied improvement-period motions and, finding no reasonable likelihood father could substantially correct conditions of abuse/neglect, terminated his parental rights in May 2016.
- The Supreme Court of Appeals of West Virginia affirmed, concluding the record supported denial of improvement periods and termination given father’s propensity to reoffend, substance abuse history, and inability to provide for the child.
Issues
| Issue | Father’s Argument | DHHR/Court’s Argument | Held |
|---|---|---|---|
| Whether denial of post-adjudicatory improvement period was erroneous | Parole and willingness to comply plus completion of programs show he was likely to participate and should receive an improvement period | Long history of reoffending, relapse after prior programs, guarded psychological prognosis — unlikely to comply or remedy conditions | Affirmed: court did not abuse discretion in denying improvement period; father unlikely to comply by clear-and-convincing standard |
| Whether termination of parental rights was improper because father’s neglect was merely “passive” due to incarceration | Incarceration caused inability to parent; passive neglect differs from active abuse and does not warrant termination | Father’s criminal conduct and substance abuse caused his incarceration and resulted in failure to supervise/ provide; statutory neglect includes inability to supply supervision due to parent’s conduct | Affirmed: termination proper — father’s actions led to neglect and no reasonable likelihood of correction |
| Whether court improperly relied on criminal convictions outside statutes governing certain crimes | Father argued court should not base disposition on unrelated convictions and parental rights aren’t forfeited solely for criminal convictions | Criminal history and propensity to reoffend are relevant to whether father can remain free to parent and correct conditions; court did not terminate solely for past convictions | Affirmed: court may consider broader criminal history and its relevance to future risk and ability to remedy neglect |
| Whether a less-restrictive dispositional alternative was required | Father argued improvement period or placement in rehabilitation (Miracles Happen) would be sufficient | Evidence showed prior similar programs failed and child welfare demanded permanency; termination is authorized where no reasonable likelihood of substantial correction exists | Affirmed: termination authorized under statutory standard and justified by record |
Key Cases Cited
- In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996) (standard of review and clearly erroneous rule for circuit court findings)
- In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011) (parental convictions alone do not automatically forfeit parental rights; courts may consider relevant history)
- In re M.M., 236 W.Va. 108, 778 S.E.2d 338 (2015) (discretion to grant or deny improvement periods)
- In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (court discretion on improvement periods)
- In re Charity H., 215 W.Va. 208, 599 S.E.2d 631 (2004) (parent’s entitlement to improvement period conditioned on clear-and-convincing likelihood to fully participate)
- In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980) (courts need not pursue speculative possibilities of parental improvement when child’s welfare is threatened)