                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


In Re: C.S. & L.S.                                                                FILED
                                                                                February 11, 2013
                                                                             RORY L. PERRY II, CLERK
No. 12-0742 (Clay County 11-JA-04 & 11-JA-05)                              SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

                                MEMORANDUM DECISION

       Petitioner Father filed this appeal, by counsel Wayne King, from the Circuit Court of
Clay County which terminated his parental rights by order entered on May 23, 2012. The
guardian ad litem for the children, Michael Asbury Jr., has filed a response supporting the circuit
court’s order. The Department of Health and Human Resources (“DHHR”), by its attorney
William Bands, also filed a response 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.

        DHHR initiated this case in January of 2011 based on allegations that the younger child’s
mother and boyfriend kept an unclean and unsanitary home and exposed the child to drug use.
The older child had been residing with her biological mother before and throughout this case.
Petitioner Father is the biological father of both children and was named as a non-offending
parent at the inception of this case. Throughout the proceedings, the circuit court directed
Petitioner Father to participate in services, drug screens, and visitation, with which Petitioner
Father only minimally complied. Although he was mostly compliant with paying child support,
he was noncompliant with drug screens and maintaining contact with DHHR. After Petitioner
Father’s refusal to produce a urine sample after a hearing in August of 2011 and he
impermissibly left the courthouse, the circuit court ordered no further contact between Petitioner
Father and the children. DHHR filed an amended petition in December of 2011 to include
allegations against Petitioner Father for his abandonment and neglect of the children. After a
series of hearings on Petitioner Father’s case, the circuit court ultimately terminated Petitioner
Father’s parental rights to the subject children. Petitioner Father 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


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       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).

         Petitioner Father argues three assignments of error. First, Petitioner Father argues that the
circuit court erred in terminating his parental rights on the basis that he abandoned the children
when the circuit court had ordered that he not have contact with the children. In response, the
children’s guardian ad litem and DHHR argue that Petitioner Father stopped exercising his
visitation rights before this order was entered. Petitioner Father last visited with the children in
July of 2011; the circuit court ordered no further contact in September of 2011. Respondents also
argue that Petitioner Father made no attempts to contact his attorney or DHHR subsequent to this
order and throughout the remainder of the proceedings. They assert that his only contact was
with his mother by one phone call in the autumn of 2011 and, on the morning of the dispositional
hearing, a single telephone call to the circuit clerk’s office. Upon our review, the Court finds no
error in the circuit court’s termination of Petitioner Father’s parental rights based on his
abandonment. The Court finds that the circuit court was presented with sufficient evidence upon
which it based findings that Petitioner Father would not comply with an improvement period,
that there were no reasonable grounds to believe that conditions of neglect could be substantially
corrected, and that termination was in the children’s best interests. Pursuant to West Virginia
Code § 49-6-5(b)(4), abandonment of children constitutes a ground for finding no likelihood that
conditions can be substantially corrected and pursuant to West Virginia Code § 49-6-5(a)(6),
circuit courts are directed to terminate parental rights upon such findings.

        Next, Petitioner Father argues that the circuit court erred when it placed restrictions and
requirements on his conduct when he was a non-offending parent in this case. Petitioner Father
asserts that he frequently requested that the children be placed with him in his custody. In
response, the guardian ad litem and DHHR contend that a circuit court is not prohibited from
placing constraints on a non-offending parent’s activities and visitations with his or her children.
They argue that Petitioner Father was well aware of the circuit court’s orders that all parents
involved, including himself, abstain from alcohol and drugs. Nevertheless, he did not comply
with this direction, and he did not fully participate in his services before or after the amended
petition alleging abandonment was filed against him. Further, Petitioner Father’s assertion that
he requested custody of the children at every hearing is not supported by the record. Upon our
review, the Court finds no error in the circuit court’s directions to Petitioner Father throughout
the duration of this case.

        Lastly, Petitioner Father argues that the circuit court erred in denying placement of the
children in his care. He reiterates his assertion that the abuse and neglect petition did not contain
allegations against him as a non-offending parent. In response, the guardian ad litem and DHHR
contend that there is not a statutory requirement to place children with a parent who is considered
a non-offending parent. Moreover, DHHR properly filed an amended petition in December of


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2011 to include Petitioner Father in the case and the case thereafter proceeded on this amended
petition. Under West Virginia Code § 49-6-3, the placement of subject children with a biological
parent is not required. Respondents further argue that Petitioner Father’s request for custody in
August of 2011 was properly denied due to his failure to take the drug screen ordered at that
hearing together with his impermissible exit from the courthouse that day, and also due to his
nonparticipation from the case. Upon our review of the record, the Court finds no error in the
circuit court’s decision to deny placement of the children with Petitioner Father.

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


                                                                                       Affirmed.

ISSUED: February 11, 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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