In Re: S.G.
16-0335
| W. Va. | Nov 14, 2016Background
- Child S.G. was in maternal aunt C.G.’s custody after mother’s drug abuse; DHHR filed an abuse-and-neglect petition in June 2014.
- T.M. (petitioner) later established paternity by genetic testing (Jan. 2015) after initially seeking visitation and requesting testing at a dispositional hearing.
- Evidence showed petitioner had a tattoo of the child, admitted belief of paternity before testing, but provided no financial or other support before or after paternity was established.
- Petitioner agreed to an improvement period (psychological evaluation, supervised visitation, drug screens) but missed numerous supervised visits and drug screens and tested positive for Xanax once.
- At disposition petitioner refused further improvement periods, sought continued visitation (and offered to allow aunt custody), while DHHR, guardian, and aunt requested termination of parental rights.
- Circuit court adjudicated petitioner for neglect (failure to provide/support the child) and terminated his parental rights; West Virginia Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument (T.M.) | Defendant's Argument (DHHR/Other) | Held |
|---|---|---|---|
| Whether adjudication as an abusing parent was erroneous | T.M.: Actions after filing do not show abandonment/neglect; court misapplied abandonment standard | DHHR: Adjudication looks to conditions at petition filing; petitioner failed to provide support and was neglectful | Affirmed: Adjudication for neglect was proper (based on failure to provide/support), not abandonment |
| Whether circuit court misused “abandonment” terminology | T.M.: Court’s dispositional language created erroneous finding of abandonment | DHHR: Dispositional wording was stylistic; adjudication relied on neglect evidence | Affirmed: Term “abandonment” in dispositional order read as neglect; adjudication was for neglect |
| Whether termination of parental rights was warranted given visitation/effort | T.M.: Substantial compliance with improvement plan; missed visits do not justify termination (one missed visit for paintball cited) | DHHR: Repeated missed visits, refusal to continue improvement, and failure to follow case plan show no reasonable likelihood of correction | Affirmed: Termination proper—no reasonable likelihood conditions could be corrected; missed visits evidence of disinterest and noncompliance |
| Whether a less-restrictive dispositional alternative was required | T.M.: Should have retained parental rights with continued visitation (less-restrictive alternative) | DHHR: Continued noncompliance and refusal of further services justify termination for child’s welfare | Affirmed: Termination required for child’s welfare under statutory standards |
Key Cases Cited
- In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (reciting standard of review for circuit-court findings)
- In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (standard for overturning factual findings)
- In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (adjudication looks to conditions at time petition filed)
- In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (parent visitation interest is relevant to potential for improvement)
- State ex rel. Amy M. v. Kaufman, 196 W.Va. 251, 470 S.E.2d 205 (visitation interest as factor in parental potential to improve)
- In re Emily, 208 W.Va. 325, 540 S.E.2d 542 (definition and presumption of abandonment in context of adoption/visitation)