                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


In Re: L.M, S.W., J.W., and K.W.                                                      FILED
                                                                                     March 31, 2014
                                                                                 RORY L. PERRY II, CLERK
No. 13-1104 (Mercer County 12-JA-172 through 12-JA-175)                        SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA



                                   MEMORANDUM DECISION

        Petitioner Father, by counsel Elizabeth French, appeals the Circuit Court of Mercer
County’s October 1, 2013, order terminating his parental, custodial, and guardianship rights to
L.M, S.W., J.W., and K.W.1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel William Jones, filed its response in support of the circuit court’s order.
The guardian ad litem, Allison Huson, filed a response on behalf of the children also supporting
the circuit court’s order. On appeal, Petitioner Father alleges that the circuit court erred in
terminating his parental, custodial, and guardianship rights.

        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 decision is appropriate under Rule
21 of the Rules of Appellate Procedure.

        In October of 2012, the DHHR filed an abuse and neglect petition against Petitioner
Father. The petition alleged that Petitioner Father committed multiple acts of domestic violence
in the presence of the children. By order entered on March 20, 2013, Petitioner Father stipulated
that he abused the children by committing acts of domestic violence in their presence. The circuit
court then granted Petitioner Father a post-adjudicatory improvement period.2

        Thereafter, Petitioner Father was arrested for the manufacture/delivery of a controlled
substance and was sentenced to a term of incarceration of two to twenty years. At the
dispositional hearing on September 13, 2013, the circuit court heard testimony from a child
protective services worker. After considering the evidence and the arguments of counsel, the
circuit court terminated Petitioner Father’s parental, custodial, and guardianship rights. It is from
this order that Petitioner Father now appeals.

       The Court has previously established the following standard of review:


       1
           Petitioner Father is the biological father of K.W. only.
       2
       The record is devoid of any information regarding the length of the post-adjudicatory
improvement period or its terms and conditions.
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               “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 Father alleges that the circuit court erred in terminating his parental,
custodial, and guardianship rights to the children based solely upon his incarceration. This Court
has stated:

               When no factors and circumstances other than incarceration are raised at a
       disposition hearing in a child abuse and neglect proceeding with regard to a
       parent’s ability to remedy the condition of abuse and neglect in the near future,
       the circuit court shall evaluate whether the best interests of a child are served by
       terminating the rights of the biological parent in light of the evidence before it.
       This would necessarily include but not be limited to consideration of the nature of
       the offense for which the parent is incarcerated, the terms of the confinement, and
       the length of the incarceration in light of the abused or neglected child’s best
       interests and paramount need for permanency, security, stability and continuity.

Syl. Pt. 3, Id. The case of In re: Cecil T. also recognized that “this Court has never held that
incarceration can not [sic] be the sole basis for terminating parental rights.” Id. at 96, 717
S.E.2d at 880.

        During disposition, the circuit court heard testimony that Petitioner Father was sentenced
to a term of incarceration of two to twenty years for the manufacture/delivery of a controlled
substance. The circuit court also correctly considered that Petitioner Father could no longer
participate in his improvement period because of the length of his incarceration. “[I]ncarceration
may unreasonably delay the permanent placement of the child deemed abused or neglected, and
the best interests of the child would be served by terminating the incarcerated person’s parental
rights.” Id. at 97, 717 S.E.2d at 881. The circuit court then determined that it was in the
children’s best interest to terminate his parental, custodial, and guardianship rights to achieve
permanency, security, stability, and continuity. This Court finds that the circuit court did not
violate the principles of In re: Cecil T. in this case.




                                                      2


      For the foregoing reasons, we find no error in the decision of the circuit court and the
October 1, 2013, order is hereby affirmed.


                                                                                    Affirmed.

ISSUED: March 31, 2014

CONCURRED IN BY:

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




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