                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                  FILED
In re: G.B. and K.B.-1
                                                                              October 23, 2017
                                                                                RORY L. PERRY II, CLERK
No. 17-0508 (Webster County 17-JA-1 and 17-JA-2)                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA



                              MEMORANDUM DECISION
         Petitioner Father K.B.-2, by counsel Teresa C. Monk, appeals the Circuit Court of
Webster County’s May 3, 2017, order terminating his parental rights to G.B. and K.B.-1.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Mary
Elizabeth Snead, filed a response on behalf of the children also in support of the circuit court’s
order. On appeal, petitioner argues that the circuit court erred in terminating his 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 January of 2017, the DHHR filed an abuse and neglect petition alleging that petitioner
and, D.B., the mother of G.B. and K.B.-1, engaged in domestic violence in the children’s
presence and abused and trafficked drugs in the home. According to the petition, petitioner was
also arrested for battery and burglary following an incident during which he attempted to forcibly
take G.B. out of the mother’s arms during an argument. Petitioner then struck the mother and
G.B. during the same argument and later attempted to enter the mother’s home. Petitioner injured
the children’s grandmother in the process. The petition also alleged that petitioner committed
numerous incidents of domestic violence against the mother over a three-year period. Petitioner
thereafter waived his right to a preliminary hearing.

       In February of 2017, the circuit court held an adjudicatory hearing wherein the circuit
court heard testimony from the mother, Sergeant Matt Diez, and a DHHR worker. Petitioner did

       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). Because petitioner and one of the children share the same
initials, we will refer to the child as K.B.-1 and to petitioner as K.B.-2 throughout this
memorandum decision.


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not testify on his own behalf. The circuit court also heard evidence that petitioner previously had
his parental rights terminated to another child. By order entered on February 15, 2017, the circuit
court adjudicated petitioner as an abusing parent and found that he engaged in domestic violence
in the children’s presence; struck the child, G.B.; and had his parental rights terminated to
another child due to incidents involving domestic violence.

        In April of 2017, the circuit court held a dispositional hearing wherein it found that
petitioner’s case was one of aggravated circumstances due to his prior termination based on
domestic violence and his inability to successfully complete an improvement period or comply
with the circuit court’s orders. The circuit court also noted petitioner’s history of domestic
violence. Based on the evidence presented, by order dated May 3, 2017, the circuit court
determined that the circumstances of petitioner’s current incarceration made his participation in
an improvement period impossible, found that there was no reasonable likelihood he could
substantially correct the conditions of abuse and neglect, and terminated his parental rights to the
children. It is from that order that petitioner appeals.

         The Court has previously established the following standard of review in cases such as
these:

                 “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’s parental rights.

        Petitioner’s argument on appeal is that the circuit court erred in terminating his parental
rights to the children instead of granting his request to terminate only his custodial rights. He
also argues that the “only problem with correcting his problems was the fact that he was
incarcerated.” We disagree. West Virginia Code § 49-4-604(b)(6) provides that a circuit court is
directed to terminate parental rights upon findings that there is “no reasonable likelihood that the
conditions of neglect or abuse can be substantially corrected in the near future” and that
termination is necessary for the children’s welfare. West Virginia Code § 49-4-604(c)(3)
provides that “no reasonable likelihood that conditions of neglect or abuse can be substantially
corrected” exists when “[t]he abusing parent . . . ha[s] not responded to or followed through with
a reasonable family case plan or other rehabilitative efforts[.]”

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        In this case, the circuit court was presented with evidence that petitioner engaged in
domestic violence in the children’s presence, struck one of the children, and had his parental
rights previously terminated to another child due to incidents involving domestic violence. The
circuit court also found that, in the five years between abuse and neglect proceedings involving
petitioner, “he made no effort to change his behavior.” The circuit court noted that petitioner did
not request an improvement period in the present case. Given petitioner’s complete lack of
improvement during these proceedings, we find no error in the circuit court’s termination order.
The circuit court properly found that petitioner was not reasonably likely to substantially correct
the conditions of abuse and neglect in the near future, and it is clear from the record that the
children’s welfare necessitated the termination of petitioner’s parental rights. Accordingly, we
find no error below.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 3, 2017, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: October 23, 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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