In Re: S.S., 16-0748

DHHR filed an abuse and neglect petition after four-year-old A.B. was observed with multiple unexplained bruises; medical testing ruled out a bleeding disorder or medication side-effect.
A.B. reported that petitioner (father C.A.) “whipped” him; petitioner denied abusing A.B. and provided no plausible explanation for the injuries.
S.S. (two-year-old) lived in the same residence and was in petitioner’s custody at times; custody of S.S. was later returned to her biological mother.
The circuit court adjudicated petitioner an abusing parent based on the evidence and testimony and later held a dispositional hearing while petitioner was incarcerated for grand larceny.
The circuit court terminated petitioner’s parental rights to S.S. by order entered September 13, 2016; the child was placed with her biological mother and the DHHR sought affirmance.

Issue	Petitioner’s Argument	DHHR/Guardian’s Argument	Held
Whether termination was error because no less-restrictive alternative was imposed	Court should have ordered an improvement period or less-restrictive alternative	Termination proper because no reasonable likelihood conditions could be corrected given petitioner’s incarceration and failure to participate	Affirmed: termination appropriate where petitioner could not complete an improvement period due to incarceration and lack of rehabilitation
Whether S.S. was shown to be harmed or threatened by petitioner	No evidence S.S. was harmed or threatened	Evidence of abuse to another child in same home supports termination for S.S.’s protection	Affirmed: abuse to A.B. in same residence justified termination as S.S. was exposed to threat
Whether holding dispositional hearing without petitioner present (while incarcerated) was error	Petitioner should have been permitted to attend the dispositional hearing	Circuit court has discretion; petitioner did not request permission to attend	Affirmed: no error where petitioner did not request attendance and court has discretion
Sufficiency of findings that correction of conditions was unlikely	Court failed to expressly find lack of reasonable likelihood conditions could be corrected	Incarceration and inability to participate in reunification sufficed to justify termination even without explicit finding	Affirmed: record supports conclusion termination was appropriate despite lack of specific language

In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (recognizes standard of review for bench findings in abuse/neglect cases)
In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (incarceration can support termination of parental rights; standards reiterated)
In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (termination may be ordered without less-restrictive alternatives when conditions cannot be corrected)
In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (no requirement that each child be directly abused before termination sought)
State ex rel. Jeanette H. v. Pancake, 207 W.Va. 154, 529 S.E.2d 865 (circuit court discretion governs whether incarcerated parent may attend dispositional hearing)
In re Stephen Tyler R., 213 W.Va. 725, 584 S.E.2d 581 (incarcerated respondent must request permission to attend hearing)