                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: K.W. IV and A.W.                                                                FILED
                                                                                     June 2, 2014
No. 13-1041 (McDowell County 09-JA-46 and 09-JA-47)                               RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


                               MEMORANDUM DECISION
        Petitioner Father, by counsel Joshua Miller, appeals the Circuit Court of McDowell
County’s September 20, 2013, order terminating his parental rights to K.W. IV and A.W. (“the
children”). The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel William Jones, filed its response in support of the circuit court’s order. The children’s
guardian ad litem, R. Keith Flinchum, filed a response on their behalf that supports the circuit
court’s order. The foster parents, intervenors below, by counsel Paige Flanigan, also filed a
response in support of the circuit court’s order. On appeal, petitioner alleges that the circuit court
erred in terminating his parental rights and denying post-termination visitation.

        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 September of 2009, the West Virginia State Police responded to a violent altercation at
Petitioner Father’s house after he allegedly threatened two individuals with a pistol and
committed domestic violence against the subject children’s mother. Several days later, the
DHHR received a referral that the children’s mother was having a sexual relationship with a
juvenile. The referral also stated that the home was unsanitary and that there were unsecured pill
bottles and dangerous weapons within the children’s reach. Based upon these allegations, the
DHHR filed a petition for immediate custody of the minor children.

        In June of 2010, Petitioner Father stipulated that domestic violence occurred in the
presence of the children and that he failed to provide A.W. with proper nutrition. As a result, the
circuit court adjudicated Petitioner Father as a neglectful parent. The circuit court granted
Petitioner Father a post-adjudicatory improvement period to address issues regarding domestic
violence, anger management, and A.W.’s malnutrition.

        In August of 2011, the circuit court held a dispositional hearing. The circuit court heard
testimony that Petitioner Father had successfully completed all of the services required by the
circuit court during his post-adjudicatory improvement period. The circuit court also heard
testimony that Petitioner Father had allegedly sexually abused K.W. IV. As a result, the circuit
court continued the dispositional hearing and directed Petitioner Father to undergo a “sex

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offender psychological [evaluation].” Petitioner Father’s psychological evaluation revealed that
while Petitioner Father was of average intelligence, the expert could not “recommend the
independent return of the children to him or unsupervised visitation at the current time.” Further
the psychologist opined that even with parenting classes, anger management classes, and
substance abuse counseling that he would consider Petitioner Father’s prognosis as “guarded.”
The circuit court also found that Petitioner Father’s “inability to control his anger is an emotional
illness that renders him incapable of exercising proper parenting skills.” Following the continued
dispositional hearing, the circuit court terminated Petitioner Father’s parental rights on the
grounds that he had failed to accept responsibility for A.W.’s “malnutrition/failure to thrive”1
and that his “inability to control his anger is an emotional illness that renders him incapable of
exercising proper parenting skills.”2 It is from this order that Petitioner Father now 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
       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 first argues that his rights should not have been terminated.
Petitioner Father contends that he successfully completed his improvement period and remedied
the conditions of neglect that led to the filing of this petition. Petitioner Father also argues that
the circuit court erred in terminating his parental rights based on an emotional illness that did not
exist.

       This Court recently held that “[i]n making the final disposition in a child abuse and
neglect proceeding, the level of a parent’s compliance with the terms and conditions of an
improvement period is just one factor to be considered. The controlling standard that governs
any dispositional decision remains the best interests of the child.” Syl. Pt. 4, In re B.H., No. 13­
0342, 2014 WL 537757 (W.Va. Feb. 5, 2014). While the circuit court heard evidence that
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           The GAL argued that Petitioner Father still referred to his daughter as “small boned.”
       2
        During the dispositional hearing the circuit court heard testimony from two expert
witnesses regarding the allegations of sexual abuse. After considering the testimony, the circuit
court found that the DHHR “failed to prove [the] allegations by clear and convincing evidence.”
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Petitioner Father successfully completed the terms and conditions of his improvement period, the
circuit court remained concerned about Petitioner Father’s ability to provide appropriate care for
his children and his history of emotional outbursts and domestic violence. This evidence
constitutes a circumstance in which there is no reasonable likelihood that the conditions of abuse
or neglect could be substantially corrected in the near future under West Virginia Code §§ 49-6­
5(b)(3) and (6). Circuit courts are directed to terminate parental rights upon this finding and
when termination is necessary for the children’s welfare pursuant to West Virginia Code § 49-6­
5(a)(6). Upon our review, the Court finds no error in the circuit court’s termination of Petitioner
Father’s parental rights because the circuit court found that there was no reasonable likelihood
that Petitioner Father could substantially correct the conditions of abuse or neglect in the near
future.

         Petitioner Father next argues that the circuit court erred in denying his motion for post
termination visitation. Petitioner Father asserts that he has a strong bond with the children and
that it is in the children’s best interest to have post-termination visitation. Petitioner Father also
argues that the circuit court failed to consider the fact that he had exercised his supervised
visitation with his children.

                “‘When parental rights are terminated due to neglect or abuse, the circuit
       court may nevertheless in appropriate cases consider whether continued visitation
       or other contact with the abusing parent is in the best interest of the child. Among
       other things, the circuit court should consider whether a close emotional bond has
       been established between parent and child and the child’s wishes, if he or she is of
       appropriate maturity to make such request. The evidence must indicate that such
       visitation or continued contact would not be detrimental to the child’s well being
       and would be in the child’s best interest.’ Syllabus Point 5, In re Christina L., 194
       W.Va. 446, 460 S.E.2d 692 (1995).” Syl. Pt. 8, In re Katie S., 198 W.Va. 79, 479
       S.E.2d 589 (1996).

Syl. Pt. 8, In re: Charity H., 215 W.Va. 208, 599 S.E.2d 631 (2004).

        Our review of the record supports the circuit court’s decision denying Petitioner Father
post-termination visitation with his children. After considering all of the evidence, including
Petitioner Father’s psychological evaluation, the circuit court found that Petitioner Father’s
mental illness prevents him from “exercising proper parenting skills.” Additionally, the circuit
court found that “both children would benefit from structure and stability and that continued
association with [Petitioner Father] would only upset them and hinder them from a sense of
normalcy.” For these reasons the Court finds no error in the circuit court’s decision denying
Petitioner Father post-termination visitation.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
September 20, 2013, order is hereby affirmed.

                                                                                           Affirmed.




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ISSUED: June 2, 2014

CONCURRED IN BY:

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




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