In re A.R.-1, 22-0083

CourtSupreme Court of West Virginia
PartiesIn re A.R.-1, A.R.-2, and E.R.
Docket Number22-0083
Decision Date31 August 2022

In re A.R.-1, A.R.-2, and E.R.

No. 22-0083

Supreme Court of Appeals of West Virginia

August 31, 2022

Lewis County 21-JA-46, 21-JA-47, and 21-JA-48


Petitioner Father C.R., by counsel G. Phillip Davis, appeals the Circuit Court of Lewis County's January 12, 2022, order terminating his parental rights to A.R.-1, A.R.-2, and E.R.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Patrick Morrisey and Lee Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Brian W. Bailey, filed a response on behalf of the children also in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in denying him a post-adjudicatory improvement period and in not allowing him to be physically present for the dispositional hearing.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

In April of 2021, the DHHR filed a child abuse and neglect petition against petitioner based upon domestic violence. Specifically, the DHHR alleged that petitioner jumped on the hood of a car in which the mother and the three children were seated. Petitioner had a large knife and began trying to stab the mother through the windshield of the car. The mother began driving the car and petitioner continued to try to stab her through the windshield and driver's window until she rounded a curve in the road, causing petitioner to fall off. Petitioner fled into the woods with the knife but was later arrested and charged with child abuse creating risk of injury. A Child Protective


Services ("CPS") worker spoke to the mother, who described the incident and further reported that petitioner's behavior had been extremely erratic in the weeks leading up to the incident.

At an adjudicatory hearing held in June of 2021, petitioner stipulated to abusing and neglecting the children. Specifically, petitioner admitted that he had been arrested and charged with child abuse creating a risk of injury and that he was currently incarcerated on that charge. Petitioner further admitted that he had anger issues and a substance abuse problem which adversely impacted his ability to properly parent the children. The circuit court accepted petitioner's stipulation and adjudicated him as an abusing parent.

Prior to the dispositional hearing, petitioner's counsel filed a motion requesting that petitioner be transported to the dispositional hearing from his place of incarceration, and the circuit court denied the motion based on the COVID-19 pandemic. In December of 2021, the circuit court held a dispositional hearing. Petitioner appeared via video conference from his place of incarceration, and his counsel objected to the circuit court's prior denial of his motion to transport petitioner to the hearing. The DHHR presented the testimony of a CPS worker, who testified that petitioner had not contacted her during the proceedings and recommended that his parental rights be terminated. A second CPS worker also testified that petitioner had not contacted her during the proceedings. She further indicated that there were no services that could be offered at that time due to his incarceration.

Petitioner testified that his related criminal case was still pending and that his trial was scheduled for February or March of 2022. Petitioner admitted that he would likely be unable to participate in an improvement period while incarcerated, stating "I'm going to be incarcerated for a while; so it's not like I can have anything to do with my kids in here." Petitioner indicated that multiple motions for reduction of bond had been filed in his criminal matter and that all motions had been denied thus far. Petitioner stated that he sought to be released from incarceration so that he could participate in an improvement period or, alternatively, would participate in any services offered by his place of incarceration. Petitioner testified that he had already begun participating in an anger and stress management class, parenting classes, and victim awareness classes.

By order entered on January 12, 2022, the circuit court denied petitioner's request for a post-adjudicatory improvement period and terminated his parental rights. In so doing, the circuit court considered testimony taken at the mother's dispositional hearing which demonstrated that petitioner and the mother had been the subject of two prior child abuse and neglect proceedings. The circuit court also considered the testimony of petitioner's family members at the mother's hearing that they had witnessed domestic violence between petitioner and the mother, including the incident leading to the petition's filing wherein petitioner attempted to stab the mother through the windshield of her vehicle while the children were inside. The circuit court noted petitioner's testimony that he remained incarcerated awaiting trial and that...

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