                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS

In Re: H.P., S.W., and E.W.                                                         FILED
                                                                                   April 16, 2013
                                                                              RORY L. PERRY II, CLERK
No. 12-1408 (Mercer County 11-JA-260, 261 & 262)                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

                                 MEMORANDUM DECISION

        Petitioner Father filed this appeal, by counsel Joseph T. Harvey, from the Circuit Court of
Mercer County which terminated his parental rights by order entered on November 5, 2012. The
guardian ad litem for the children, John E. Williams Jr., has filed a response supporting the
circuit court’s order. The Department of Health and Human Resources (“DHHR”), by its
attorney Lee Niezgoda, also filed a response in support of the circuit court’s order.

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

        In December of 2011, the DHHR filed its abuse and neglect petition against Petitioner
Father. The petition alleged that, although Petitioner Father and the children’s mother no longer
reside together, Petitioner Father has exhibited violent behavior toward the mother in the
children’s presence. For instance, on one evening in December of 2011, Petitioner Father came
to the home and yelled at the mother from outside. He continued to do so throughout the night.
Throughout the last couple of years before the DHHR filed the petition of this case, the mother
had filed a few petitions for Domestic Violence Protective Orders. The circuit court granted
Petitioner Father an improvement period and ordered that he complete a mental health
evaluation. Petitioner Father failed to do so, and during the months before the dispositional
hearing, he was in and out of jail, had no source of income, did not visit with the children, and
continued to leave his mental health and substance abuse issues untreated. The circuit court
terminated Petitioner Father’s parental rights in November of 2012. Petitioner Father appeals this
order.

        On appeal, Petitioner Father argues that the circuit court erred in terminating his parental,
custodial, and guardianship rights to the subject children. He argues that the circuit court should
have only terminated his custodial rights to them in order to allow him in their lives and preserve
any inheritance rights. In response, the children’s guardian ad litem and the DHHR contend that
the circuit court committed no error in terminating Petitioner Father’s parental, custodial, and
guardianship rights. They argue that, although Petitioner Father has mental health conditions, he
made no attempts to utilize available services. Petitioner Father never even completed the mental
health and substance abuse evaluations to determine what services could assist him.




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       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).

        Upon our review, the Court finds no error in the circuit court’s termination of Petitioner
Father’s parental, custodial, and guardianship rights to the subject children. The Court finds that
the circuit court was presented with sufficient evidence upon which it based findings that there
was no reasonable likelihood to believe that conditions of abuse and neglect could be
substantially corrected in the near future, and that termination was necessary for the children’s
welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate
parental, custodial, and guardianship rights upon such findings.

       For the foregoing reasons, we affirm the circuit court’s order terminating petitioner’s
parental, custodial, and guardianship rights to the subject children.


                                                                                        Affirmed.


ISSUED: April 16, 2013

CONCURRED IN BY:

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




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