                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS

In Re: J.Y.                                                                         FILED
                                                                                   May 24, 2013
                                                                              RORY L. PERRY II, CLERK
No. 12-1472 (Clay County 11-JA-44)                                          SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

                                 MEMORANDUM DECISION

       Petitioner Mother filed this appeal, by counsel Daniel Grindo, from the Circuit Court of
Clay County, which terminated her parental rights by order entered on November 13, 2012. The
guardian ad litem for the child, William Lester, has filed a response supporting the circuit court’s
order. The Department of Health and Human Resources (“DHHR”), by its attorney Lee
Niezgoda, and the child’s biological father, by his attorney Kevin Hughart, have both filed
responses 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 May of 2011, the DHHR filed its petition in the instant case. This petition alleged
physical abuse of the child by Petitioner Mother. For instance, Petitioner Mother would pinch
and hit the child without reason and rub numbing gel on the child’s gums in attempts to stop his
crying. On one occasion, Petitioner Mother did not strap the child in his stroller, causing him to
fall out, roll down a hill, and hit a tree. As a result, the child sustained injuries to his head and
ribs. The circuit court granted Petitioner Mother an improvement period, during which she
participated in services and classes. Nevertheless, Petitioner Mother continued to physically
abuse her child throughout this case. Consequently, following the dispositional hearing in
September of 2012, the circuit court terminated Petitioner Mother’s parental rights in its
November of 2012 order. Petitioner Mother appeals this termination.

        Petitioner Mother first argues that the circuit court erred in finding that the conditions of
abuse and neglect could not be corrected in a reasonable period of time. She argues that given
her own young age and her troubled childhood, she should receive more time to participate in
services and programs. In response, all respondents argue that Petitioner Mother continued to
abuse the child after they were placed together in a foster home. Respondents further assert that
Petitioner Mother’s failure to discontinue her abuse of the child reflects her failure to benefit
from the services that were offered to her.

        Petitioner Mother also argues that the circuit court erred when it found that termination of
her parental rights was in the child’s best interests. She argues that by terminating her rights, the
circuit court gave up on her too soon and denied her child the opportunity to have a strong and
positive relationship with his mother. In response, the respondents argue that the circuit court did


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not err in termination based on the child’s best interests. They reiterate that Petitioner Mother
continued to physically abuse her child throughout this case. For instance, the DHHR points out
that one month prior to disposition, Petitioner Mother admitted to still hitting the child for no
reason.

       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
Mother’s parental rights. Our review of the dispositional hearing transcript provides testimony
that, despite completing parenting classes, Petitioner Mother reported to a nurse in August of
2012 that she hits the child “for no reason.” We find that the circuit court was presented with
sufficient evidence upon which it could have 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 child’s welfare. Pursuant to West Virginia
Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon such findings.

       For the foregoing reasons, we affirm the circuit court’s order terminating petitioner’s
parental rights to the subject child.

                                                                                        Affirmed.

ISSUED: May 24, 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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