                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



In Re: A.P. & G.P.                                                               FILED
                                                                                 May 24, 2013
No. 12-1443 (Clay County 12-JA-76 & 77)                                     RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA


                                 MEMORANDUM DECISION

    Petitioner Father’s appeal, by counsel Wayne King, arises from the Circuit Court of Clay
County, wherein his parental rights were terminated by order entered on November 30, 2012. The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Angela
Alexander Walters, has filed its response. The guardian ad litem, Kevin C. Duffy, has filed a
response on behalf of the children.

       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.

        On May 24, 2012, the DHHR entered into a protection plan with Petitioner Father, as well
as with the children’s mother, grandparents, and great-grandparents; the plan disallowed
Petitioner Father direct or indirect contact with the children. On May 31, 2012, the DHHR filed
an abuse and neglect petition, alleging that Petitioner Father sexually abused A.P. when she was
three years old. The DHHR further alleged that Petitioner Father had not kept a home fit for the
children to live in, and that he had threatened to take the children from their maternal great-
grandparents who were caring for them. On July 5, 2012, the adjudicatory hearing was held; the
circuit court denied visitation to Petitioner Father because of his alleged sexual contact with the
children. The youngest child was found by the circuit court to be sexually abused by Petitioner
Father. Both children were found to have been abused due to the sexual abuse, as well as the
conditions in the home. On November 20, 2012, Petitioner Father’s parental rights were
terminated by order of the circuit court, finding that there is no reasonable likelihood of the
conditions of abuse and neglect being substantially corrected in the near future.

       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

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       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 argues two assignments of error: that the circuit court erred in
terminating his parental rights and in denying him an improvement period. First, regarding
termination, he argues that there was not clear and convincing evidence of sexual misconduct
with his youngest daughter because the oldest daughter recanted her testimony that he had
inappropriately touched her, there were inconsistencies in the testimony of his youngest daughter,
and no physical evidence supported the finding of sexual misconduct. The guardian and the
DHHR dispute that there was any ambiguity in the testimony by the daughter describing in detail
how Petitioner Father inappropriately touched her.

        Finally, Petitioner Father argues he should have been afforded an improvement period. He
argues that the condition of his home could have been corrected during a six-month improvement
period, and that he is willing to correct the conditions in the home. The guardian and the DHHR
argue that the basis of the abuse and neglect petition was the sexual abuse by Petitioner Father
and that the DHHR is not required to make reasonable efforts to reunify the children due to the
aggravated circumstances, as defined in West Virginia Code § 49-6-3(d)(1). The guardian further
states that denying an improvement period is consistent with protecting the health and welfare of
the children.

        Petitioner Father has not shown that the circuit court was clearly wrong in finding that
Petitioner Father sexually abused A.P. Petitioner Father’s sexual abuse of A.P. is an aggravating
circumstance that relieves the court of making reasonable efforts to reunify the children with their
father. This Court finds that the circuit court was presented with sufficient evidence upon which it
based its findings that there was no reasonable likelihood that the 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 rights upon these findings.

       For the foregoing reasons, we find no error in the decision of the circuit court, and the
termination of petitioner’s parental rights is hereby affirmed.

                                                                                          Affirmed.




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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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