In Re: S.S. and R.S.
17-0815
| W. Va. | Dec 1, 2017Background
- Children S.S. and R.S. were adopted by grandparents M.S. (petitioner) and V.S. after the biological parents’ rights were terminated for drug abuse.
- In April 2014 V.S. sold controlled substances in the family home while the children were present; he pled guilty and was incarcerated. The circuit court terminated V.S.’s custodial rights and enjoined him from contact with the children; M.S. was ordered to prohibit contact.
- After V.S.’s release in November 2016, he moved back into the family home in violation of the court’s orders; a DHHR investigation in Jan. 2017 found V.S. alone with R.S. and M.S. admitting V.S. was back in the house.
- DHHR filed a new abuse and neglect petition against M.S., alleging failure to protect the children by allowing V.S. contact and residence despite court orders.
- At adjudication M.S. stipulated to portions of the petition; at disposition the court denied an improvement period, found no reasonable likelihood of remedying the conditions, terminated M.S.’s parental rights, and denied post-termination visitation.
Issues
| Issue | Plaintiff's Argument (M.S.) | Defendant's Argument (DHHR/Court) | Held |
|---|---|---|---|
| Whether M.S. was properly adjudicated an abusing parent | M.S. reserved right to challenge sufficiency; contends adjudication was erroneous | M.S. knowingly stipulated to allegations and waived challenge | Adjudication affirmed — stipulation waived appellate challenge |
| Whether termination was improper because less-restrictive alternatives (improvement period) existed | M.S. argued court should have granted an improvement period instead of terminating rights | Court: discretionary denial appropriate; no reasonable likelihood conditions could be corrected | Termination affirmed as proper remedy |
| Whether evidence supported finding of no reasonable likelihood of correction of conditions | M.S. argued she permitted V.S. back for reasons presented at trial | DHHR/court emphasized M.S.’s knowledge of prohibitions and unpersuasive explanations | Court found petitioner not credible; no reasonable likelihood found |
| Whether denial of post-termination visitation was error | M.S. argued close bond justified continued visitation | Therapist and DHHR testified visitation (without V.S.) would confuse young child and be detrimental; S.S. nearly adult and could decide | Denial of post-termination visitation affirmed as not in children’s best interest |
Key Cases Cited
- In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (W.Va. 1996) (standard of review for circuit court findings in non-jury abuse and neglect cases)
- In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (W.Va. 2011) (reinforcing standard of review)
- In re Lacey P., 189 W.Va. 580, 433 S.E.2d 518 (W.Va. 1993) (discretion to grant or deny improvement periods)
- In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (W.Va. 1980) (termination may be used without less-restrictive alternatives when no reasonable likelihood of correction)
- In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (W.Va. 2011) (applies R.J.M. principle regarding termination)
- State v. Jessie, 225 W.Va. 21, 689 S.E.2d 21 (W.Va. 2009) (failure to raise nonjurisdictional issues in circuit court waives appellate review)
- In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (W.Va. 1995) (factors for post-termination visitation)
- In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (W.Va. 2002) (application of Christina L. factors)