                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



In re: I.N. and N.N.                                                             FILED
                                                                            November 21, 2016
No. 16-0394 (Mingo County 15-JA-61 & 15-JA-62)                                  RORY L. PERRY II, CLERK

                                                                              SUPREME COURT OF APPEALS

                                                                                  OF WEST VIRGINIA


                                 MEMORANDUM DECISION

        Petitioner B.H., by counsel Susan J. Van Zant, appeals the Circuit Court of Mingo
County’s April 8, 2016, order terminating petitioner’s custodial rights to sixteen-year-old I.N.
and ten-year-old N.N.1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel S.L. Evans, filed its response in support of the circuit court’s order. The
guardian ad litem (“guardian”), Diana Carter Wiedel, 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 terminating his custodial rights to the children.2

      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
       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
       2
         According to the record, the circuit court’s dispositional order terminated petitioner’s
“parental rights” to the children. However, petitioner is not the biological father of either child.
Both of the children’s biological fathers had their parental rights terminated in previous abuse
and neglect proceedings. To be clear, petitioner does not meet the definition of a parent under the
West Virginia Code. Pursuant to West Virginia Code § 48-1-232, a “ ‘legal parent’ means an
individual defined as a parent, by law, on the basis of biological relationship, presumed
biological relationship, legal adoption or other recognized grounds.” Additionally, we have held
that “[t]he phrase ‘other recognized grounds’ refers to those individuals or entities who have
been formally accorded parental status or the functional equivalent thereof by way of statute or
judicial decree . . . .” Syl. Pt. 1, In re Clifford K, 217 W.Va. 625, 619 S.E.2d 138 (2005). It is
clear that petitioner was the custodian of the children. West Virginia Code § 49-1-204 provides
that a “‘[c]ustodian’ means a person who has or shares actual physical possession or care and
custody of a child, regardless of whether that person has been granted custody of the child by any
contract or agreement.” Inasmuch as the context of the circuit court order unequivocally conveys
that the circuit court found that it was in the children’s best interest for the circuit court to
terminate petitioner’s custodial rights, and inasmuch as petitioner has not objected to the
misnomer, we will refer to petitioner’s rights as “custodial rights” throughout the memorandum
decision. We affirm the circuit court’s April 8, 2016, dispositional order in full.


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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 September of 2015, the DHHR filed an abuse and neglect petition against petitioner
and the mother alleging that they engaged in domestic violence in the children’s presence. The
petition contained additional allegations that the mother abused illegal drugs, and had a history
of substance abuse that affected her ability to parent, and that the children were not properly fed
or clothed. Subsequently, the circuit court held a preliminary hearing wherein the mother
stipulated to the allegations in the petition. A DHHR worker testified that petitioner reported that
he and the mother engaged in domestic violence in the children’s presence. According to the
testimony, the mother repeatedly hit petitioner with her fist. The DHHR worker also testified that
petitioner reported that the mother abused drugs and that he left the children in her care. Based
upon the testimony presented, the circuit court removed the children from the home and found
that the conditions in the home constituted abuse. The circuit court ordered that the children
remain in the DHHR’s temporary custody and scheduled the matter for an adjudicatory hearing.

       In December of 2015, the circuit court held an adjudicatory hearing wherein it
determined, based on the previous testimony, that petitioner and the mother abused the children.3
The circuit court found that petitioner and the mother engaged in domestic violence in the
children’s presence. The circuit court also found that petitioner failed to protect and supervise the
children. Petitioner moved for and was granted a post-adjudicatory improvement period. The
terms of his improvement period included supervised visitation with the children.

         In January of 2016, the circuit court held a status hearing wherein petitioner moved for
the reinstatement of his “regular contact” with N.N. However, the DHHR’s counsel advised the
circuit court that N.N. was admitted into Highland Hospital and alleged that petitioner sexually
abused her. The DHHR also advised the circuit court that I.N. alleged that petitioner physically
abused her. The DHHR further advised the circuit court that the children alleged that petitioner
and the mother did not provide them with proper food and clothing. The DHHR indicated that it
did not provide petitioner with services as a result of the allegations. Petitioner advised the
circuit court that he was willing to take a polygraph examination in regard to the allegations
against him. The circuit court determined that, if petitioner “successfully [completed] the
polygraph examination and the guardian deemed it appropriate,” he could receive services and
visitation. At a second status hearing in February of 2016, the DHHR advised the circuit court
that petitioner failed the polygraph examination. As a result, the circuit court ordered that
petitioner have no further contact with the children based on the above allegations of abuse.

        In March of 2016, the circuit court held a dispositional hearing wherein a DHHR worker
again testified that the children alleged, in a DHHR interview, that petitioner abused them. The
DHHR recommended that the circuit court terminate petitioner’s custodial rights based upon the

       3
        The record indicates that the preliminary hearing order incorrectly referenced the
upcoming hearing as the “dispositional hearing.” The typographical error was corrected on the
record and the hearing proceeded correctly as the adjudicatory hearing.
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allegations of physical and sexual abuse. Petitioner testified that he never abused the children, he
and N.N. had a strong bond, and I.N. did not “get along” with him. He also testified that it was in
the children’s best interests to be placed with him. Petitioner admitted that he knew that the
mother abused drugs for several years, that it affected her ability to parent, and that he did
nothing to protect the children. He also admitted that he and the mother engaged in domestic
violence in the children’s presence and that the children were not properly fed or clothed. By
order entered on April 8, 2016, the circuit court terminated petitioner’s custodial rights to the
children. In doing so, it found that petitioner failed to properly clothe and feed the children and
he knew that the mother abused drugs and did not properly parent the children. The circuit court
concluded that there was no reasonable likelihood that the conditions of abuse and neglect could
be substantially corrected in the near future. It also found that it was in the children’s best
interest to terminate petitioner’s custodial rights. It is from this order that petitioner now appeals.

       The Court has previously established the following standard of review:

               “Although conclusions of law reached by a circuit court are subject to de
       novo review, when an action, such as an abuse and neglect case, is tried upon the
       facts without a jury, the circuit court shall make a determination based upon the
       evidence and shall make findings of fact and conclusions of law as to whether
       such child is abused or neglected. These findings shall not be set aside by a
       reviewing court unless clearly erroneous. A finding is clearly erroneous when,
       although there is evidence to support the finding, the reviewing court on the entire
       evidence is left with the definite and firm conviction that a mistake has been
       committed. However, a reviewing court may not overturn a finding simply
       because it would have decided the case differently, and it must affirm a finding if
       the circuit court’s account of the evidence is plausible in light of the record
       viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223,
       470 S.E.2d 177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). On appeal, petitioner argues that
the circuit court erred in terminating his custodial rights because he corrected the conditions that
led to the abuse and it was in N.N.’s best interest to be placed with him.4 He also argues that the
circuit court erred in terminating his custodial rights to N.N. because it was in the child’s best
interest to be placed with him. In support of his contention, petitioner claims that he lived with
the children for eight years, had a strong bond with N.N., and he was the only “father-figure” she

       4
         Much of petitioner’s argument in support of his appeal is based upon his contention that
he is N.N’s “psychological parent.” We have previously held that “[a] psychological parent is a
person who, on a continuing day-to-day basis, through interaction, companionship, interplay, and
mutuality, fulfills a child’s psychological and physical needs for a parent and provides for the
child’s emotional and financial support . . . .” Syl. Pt. 3, In re Clifford K, 217 W.Va. 625, 619
S.E.2d 138 (2005). The record on appeal contains no motion for petitioner to be recognized as a
psychological or any order granting petitioner such a status. Even if the circuit court determined
that petitioner was deemed a psychological parent the circuit court could have terminated his
psychological parental rights based upon the evidence presented. Therefore, it is not necessary
for this Court to address his argument to affirm the circuit court’s April 8, 2016 order.
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ever knew. Petitioner contends that it was, therefore, in the child’s best interests to remain in his
custody. We do not agree.

        Following a review of the record on appeal, it is clear that it was not in the child’s best
interests to return to petitioner’s custody. At the outset, the circuit court attempted to address
petitioner’s custodial rights and granted him a post-adjudicatory improvement period pursuant to
West Virginia Code § 49-4-610(2). He was granted supervised visitation with N.N. because of
the professed bond with that child. The visitation was interrupted when N.N. was hospitalized at
Highland Hospital. While in treatment for mental health issues, N.N. disclosed that petitioner
sexually abused her. Petitioner also admitted that he engaged in domestic violence with the
mother in the children’s presence, knew that the mother abused drugs, and did not protect the
children from the mother’s drug abuse. The record on appeal reflects that this was the second
abuse and neglect proceeding involving petitioner and the mother and that he was aware for
several years that the mother abused drugs. Based upon the evidence, the circuit court found that
there was no reasonable likelihood that petitioner could substantially correct the conditions of
abuse and neglect in the near future. Pursuant to West Virginia Code § 49-4-604(c)(3), there is
no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected
when

       [t]he abusing parent or parents have not responded to or followed through with a
       reasonable family case plan or other rehabilitative efforts of social, medical,
       mental health or other rehabilitative agencies designed to reduce or prevent the
       abuse or neglect of the child, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child.

        It is clear that the conditions of abuse and neglect not only persisted across two
proceedings, but actually worsened. Further, the circuit court also found termination was in the
best interests of the children based upon petitioner’s unwillingness to correct the issues of abuse
and neglect. Thus, considering the evidence before it, the circuit court correctly terminated
petitioner’s custodial rights upon its finding that that there was no reasonable likelihood that he
could substantially correct the conditions of abuse and neglect and that termination was in the
children’s best interests. In accordance with West Virginia Code § 49-4-604(b)(6), upon such
findings, circuit courts are directed to terminate custodial rights.

       For the foregoing reasons, we find no error in the circuit court’s April 8, 2016, order, and
we hereby affirm the same.


                                                                                          Affirmed.


ISSUED: November 21, 2016




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CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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