                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


In re G.G.
                                                                                     FILED
                                                                                   May 14, 2018
No. 17-1125 (Mercer County 15-JA-141)                                            EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 


                                                          MEMORANDUM DECISION
        Petitioner Father V.G., by counsel P. Michael Magann, appeals the Circuit Court of
Mercer County’s November 13, 2017, order terminating his parental, custodial, and guardianship
rights to G.G.1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel Mindy M. Parsley, filed a response in support of the circuit court’s order. The guardian
ad litem (“guardian”), Andrea P. Powell, filed a response on behalf of the child in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating his
parental rights and not allowing him to relinquish his custodial 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.

        On September 4, 2015, the DHHR filed a petition alleging that the child was abused and
neglected due to petitioner’s substance abuse issues. Petitioner waived his preliminary hearing.
On October 16, 2015, the circuit court held an adjudicatory hearing. Petitioner stipulated to the
allegations of abuse and neglect in the petition. The circuit court adjudicated petitioner as an
abusing parent and granted him a post-adjudicatory improvement period. According to the
parties, petitioner relapsed on heroin in August of 2016. Petitioner admitted that he was unable to
maintain sobriety consistently after that time and was unable to maintain consistent housing or
employment. On March 16, 2017, the DHHR filed a motion to terminate petitioner’s parental
rights due to his failure to complete his post-adjudicatory improvement period and failure to
complete an outpatient substance abuse treatment program to address his substance abuse issues.

      On September 27, 2017, the circuit court held a dispositional hearing at which a DHHR
employee testified that petitioner failed to address his substance abuse issues following his
                                                            
              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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relapse, tested positive for drugs, and failed to provide proof of stable housing or employment.
She further testified that she attempted to contact petitioner on several occasions, but was unable
to make contact with him. Petitioner testified that he relapsed on heroin in August of 2016, and
claimed that the relapse was due to the stress of bills and losing out on public benefits. Petitioner
further testified that he believed he should be allowed to relinquish his custodial rights. The
circuit court noted that petitioner chose drugs over his son and that the child is entitled to
stability, which petitioner failed to prove he could provide. The circuit court found no reasonable
likelihood that petitioner could substantially correct the conditions of abuse and neglect in the
near future and that it was necessary for the child’s welfare to terminate petitioner’s parental,
custodial, and guardianship rights. Petitioner appeals the November 13, 2017, dispositional
order.2

              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 proceedings below.

        On appeal, petitioner argues that the circuit court erred in terminating his parental,
custodial, and guardianship rights. Petitioner further asserts that the circuit court should have
employed a less-restrictive disposition and allowed him to relinquish his custodial rights only.
We disagree. West Virginia Code § 49-4-604(b)(6) provides that the circuit court may terminate
parental rights when “there is no reasonable likelihood that the conditions of neglect or abuse can
be substantially corrected in the near future and, when necessary for the welfare of the child.”
Further, West Virginia Code § 49-4-604(c)(1) provides that there is no reasonable likelihood that
the conditions of neglect or abuse can be substantially corrected when the parent has
“demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own or
with help” and, more specifically, “the abusing parent . . . [has] habitually abused or [is] addicted
to . . . controlled substances or drugs, to the extent that proper parenting skills have been


                                                            
              2
         According to the guardian and the DHHR, the non-abusing mother has full custody of
the child.
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seriously impaired and the person . . . [has] not responded to or followed through with the
recommended and appropriate treatment.”

        Here, the record shows that petitioner had a history of substance abuse that affected his
ability to parent the child. Petitioner admittedly relapsed on heroin in August of 2016, after a
brief period of sobriety. Further, petitioner failed to comply with the terms and conditions of his
improvement period, which required him to complete an outpatient drug treatment program,
maintain employment and housing, and remain substance free. Based on this evidence, it is clear
that there was no reasonable likelihood that petitioner could have substantially corrected the
conditions of abuse or neglect in the near future.

        Although petitioner argues that by relinquishing his custodial rights, the child would not
be harmed and petitioner would have an opportunity to achieve sobriety and potentially restore
his custodial rights, we have previously held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the
       use of intervening less restrictive alternatives when it is found that there is no
       reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code
       § 49-4-604(c)] . . . that conditions of neglect or abuse can be substantially
       corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Moreover, it is clear that
termination was necessary for the child’s welfare, given that petitioner failed to correct the
conditions of abuse and neglect. For these reasons, we find no error in the circuit court’s
termination of petitioner’s parental, custodial, and guardianship rights.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 13, 2017, dispositional order is hereby affirmed.

                                                                                        Affirmed.



ISSUED: May 14, 2018


CONCURRED IN BY:

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


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