                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

                                                                                  FILED
In re: S.K. & A.K.                                                            March 13, 2017
                                                                               RORY L. PERRY II, CLERK
No. 16-0863 (Monongalia County 15-JA-44 & 15-JA-45)                          SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner guardian ad litem Scott A. Shough appeals the Circuit Court of Monongalia
County’s August 16, 2016, order granting the children’s father disposition pursuant to West
Virginia Code § 49-4-604(b)(5).1 The West Virginia Department of Health and Human
Resources (“DHHR”), by counsel Lee Niezgoda, filed a response in support of petitioner’s
appeal. The children’s father J.K., by counsel DeAndra Burton, filed a response supporting the
circuit court’s order. On appeal, petitioner alleges that the circuit court erred in failing to
terminate the father’s parental 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 order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In July of 2015, the DHHR filed an abuse and neglect petition against the parents that
alleged issues of substance abuse and domestic violence in the home. In August of 2015, the
circuit court held an adjudicatory hearing during which the parents entered stipulations to the
allegations in the petition. Both parents further moved the circuit court for post-adjudicatory
improvement periods. The circuit court thereafter granted the parents’ motions and awarded
them both post-adjudicatory improvement periods. It is undisputed that the father was not only
compliant with services during his improvement period, but also made appropriate progress in
implementing the lessons from those services.

       Beginning in February of 2016, the father was incarcerated as a result of an unrelated
criminal charge of attempted murder. The father was unable to post bond following his
incarceration and remained in custody while he awaited trial. As a result, the father was unable to
continue participating in services.

       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).


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       In April of 2016, the circuit court extended the father’s improvement period while he
remained incarcerated. Additionally, the mother continued her compliance with services, and, in
June of 2016, the circuit court returned the children to her custody. Following her successful
completion of the post-adjudicatory improvement period, the circuit court dismissed the mother
from the proceedings.

        In August of 2016, the circuit court held a dispositional hearing in regard to the father,
who remained incarcerated awaiting trial. Both the guardian ad litem and the DHHR
recommended the circuit court terminate the father’s parental rights because of his inability to
participate in services. Instead, the circuit court imposed disposition under West Virginia Code §
49-4-604(b)(5) by allowing the children to remain in the mother’s legal and physical custody.
The circuit court based its ruling, in part, upon the presumption of innocence in criminal
proceedings. According to the circuit court, it could not find that the father was unable to correct
the conditions of abuse and neglect based solely upon his incarceration because he had not yet
been convicted of a crime and, thus, could be released from incarceration.2 The circuit court
further found that “the testimony and evidence presented supports a finding that [the father] was
compliant with the terms and conditions of his improvement period prior to his incarceration.”
As such, the circuit court declined to terminate the father’s parental rights. It is from this order
that petitioner 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). Upon our review, the Court finds
no error in the circuit court’s dispositional decision below.

       On appeal, both petitioner and the DHHR argue that the circuit court erred in failing to
terminate the father’s parental rights because there was no reasonable likelihood the father could
substantially correct the conditions of abuse and neglect. Moreover, both petitioner and the

       2
         Petitioner’s criminal trial was originally scheduled for March 7, 2017. However, as of
that date, petitioner’s trial had been continued and no new trial date had been set.
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DHHR argue that our prior holdings required termination of petitioner’s parental rights. In
support of this argument, both parties cite to our prior holdings, wherein we have stated that

               “[a]t the conclusion of the improvement period, the court shall review the
       performance of the parents in attempting to attain the goals of the improvement
       period and shall, in the court’s discretion, determine whether the conditions of the
       improvement period have been satisfied and whether sufficient improvement has
       been made in the context of all the circumstances of the case to justify the return
       of the child[ren].” Syllabus Point 6, In the Interest of Carlita B., 185 W.Va. 613,
       408 S.E.2d 365 (1991).

Syl. Pt. 4, In re Faith C., 226 W.Va. 188, 699 S.E.2d 730 (2010). Petitioner and the DHHR’s
reliance on these holdings is misplaced, as the circuit court did not determine that the children
should be returned to the father’s custody. To the contrary, the circuit court implemented
disposition under West Virginia Code § 49-4-604(b)(5), whereby it was permitted to place the
children in the “care, custody, and control” of the mother.

        Further, both petitioner and the DHHR are incorrect in arguing that the circuit court was
required to terminate petitioner’s parental rights pursuant to West Virginia Code § 49-4­
604(b)(6) because there was no reasonable likelihood the conditions of abuse and neglect could
be substantially corrected and termination was necessary for the children’s welfare. In fact, the
circuit court found exactly the opposite. The circuit court not only found that the father’s
constitutional rights and the presumption of innocence “prevent[ed] the [circuit] [c]ourt from
making a finding that [the father] will be unable to remedy the conditions of abuse or neglect in
the near future[,]” it also found that termination of his parental rights was inappropriate. These
findings were based, in part, upon the fact that “the testimony and evidence presented support[] a
finding that [the father] was compliant with the terms and conditions of his improvement period
prior to his incarceration.” As such, it is clear that the circuit court had the discretion to impose
disposition under West Virginia Code § 49-4-604(b)(5).

       Finally, in discussing a parent’s incarceration in the context of abuse and neglect
proceedings, we have held as follows:

               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.

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, syl. pt. 3. Having reviewed the record on appeal,
the parties’ arguments, and the pertinent legal authority, we find no error in the circuit court’s
finding that, due to the nature of the father’s incarceration, the children’s welfare did not

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necessitate termination of parental rights. As outlined above, the circuit court was required to
consider multiple factors because the father’s incarceration was the sole issue raised at
disposition. Under the specific circumstances of this case, we find no error in the circuit court’s
determination that the terms and length of petitioner’s incarceration mitigated against
termination of parental rights. As such, we find that the circuit court did not err in ordering
disposition pursuant to West Virginia Code § 49-4-604(b)(5).

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 16, 2016, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: March 13, 2017


CONCURRED IN BY:

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




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