In Re: J.W. and A.W.
17-0575
| W. Va. | Nov 22, 2017Background
- DHHR filed an abuse-and-neglect petition after discovery that multiple children left with a maternal aunt were living in squalid conditions, one child with a broken tooth and others filthy with scratches, rashes, and inadequate nourishment/medical care.
- Petitioner (father E.N.) was incarcerated on an attempted first-degree murder conviction with a three-to-fifteen-year sentence and a minimum release date in 2022; he waived a preliminary hearing and stipulated to adjudication.
- CPS observed hazardous home and yard conditions, animal feces throughout the residence, and children in poor physical condition; one child had an upper respiratory infection.
- The children (J.W. and A.W.) were placed with foster parents who sought to adopt them and their half-sibling (X.W.), creating a permanency plan of adoption to keep siblings together.
- At disposition, DHHR recommended termination of petitioner’s parental rights; the circuit court found no reasonable likelihood petitioner could correct conditions and terminated his parental and custodial rights; petitioner appealed.
Issues
| Issue | Petitioner’s Argument | DHHR / Circuit Court’s Argument | Held |
|---|---|---|---|
| Whether terminating parental rights was improper because it rested solely on petitioner’s incarceration | Termination relied only on incarceration and court should have used a less-restrictive alternative | Court considered nature of offense, length/terms of confinement, petitioner’s pre‑incarceration parenting, inability to follow a case plan, and children’s need for permanency | Affirmed: termination supported by factors beyond incarceration and best interests analysis |
| Whether a less‑restrictive dispositional alternative should have been imposed | A less‑restrictive option (e.g., guardianship) would better protect petitioner’s rights | Adoption served children’s stability, permanency, sibling placement, and petitioner couldn’t remedy neglect imminently | Affirmed: termination appropriate; less‑restrictive alternative not required |
| Whether petitioner could substantially correct conditions under West Virginia law | Petitioner argued mitigating factors (unspecified) weigh against finding no reasonable likelihood of correction | Petitioner’s incarceration prevented participation in the family case plan and he had limited prior caregiving; conditions threatened children’s welfare | Affirmed: no reasonable likelihood of correction; termination necessary for children’s welfare |
| Whether the Cecil T. factors were properly applied | Petitioner contended the court misapplied factors or weighed them improperly | Court evaluated nature of offense (attempted murder), confinement length/uncertainty, prior parenting, and adoptive placement stability | Affirmed: Cecil T. factors support termination |
Key Cases Cited
- In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996) (standard of review for circuit-court factual findings in abuse and neglect cases)
- In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011) (factors to evaluate when a parent is incarcerated at disposition)
- In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980) (termination may be employed without intervening less-restrictive alternatives when no reasonable likelihood of correction exists)
- In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011) (reiterating standard that termination is appropriate where corrective likelihood is lacking)