                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                   FILED
In Re: R.S.                                                                      June 15, 2015
                                                                              RORY L. PERRY II, CLERK
No. 14-1192 (Mercer County 14-JA-56)                                        SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Father J.C., by counsel Michael P. Cooke, appeals the Circuit Court of Mercer
County’s November 6, 2014, order terminating his parental rights to nine-year-old R.S. The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Michael
Jackson, filed its response in support of the circuit court’s order. The guardian ad litem
(“guardian”), William O. Huffman, filed a response on behalf of the child also in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating his
parental rights based solely on his incarceration.1

        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 April of 2014, the DHHR filed an abuse and neglect petition alleging that petitioner
failed to provide the child with adequate support and abandoned the child due to his
incarceration in the Commonwealth of Virginia on several felony and misdemeanor convictions.
In August and September of 2014, the circuit court held two adjudicatory hearings. The circuit
court heard evidence that petitioner was incarcerated as alleged in the petition. Petitioner’s
counsel admitted that his anticipated release date is October of 2020. Based on petitioner’s
incarceration and his failure to provide the child with support of any kind, the circuit court found
that petitioner had neglected the child.

        Following the dispositional hearing in October of 2014, the circuit court found that
petitioner could not correct the conditions of neglect in the near future and that termination of his
parental rights was necessary for the child’s welfare. Based on these findings, by order entered
on November 6, 2014, the circuit court terminated petitioner’s parental rights to the child. This
appeal followed.

       1
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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       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 assigns error to the circuit court’s termination of his parental rights
based solely on his incarceration until the year 2020. This Court has explained that

               [w]hen no factors and circumstances other than incarceration are raised at
       a disposition hearing in a child abuse and neglect proceeding with regard to a
       parent’s ability to remedy the condition of abuse and neglect in the near future,
       the circuit court shall evaluate whether the best interests of a child are served by
       terminating the rights of the biological parent in light of the evidence before it.
       This would necessarily include but not be limited to consideration of the nature of
       the offense for which the parent is incarcerated, the terms of the confinement, and
       the length of the incarceration in light of the abused or neglected child’s best
       interests and paramount need for permanency, security, stability and continuity.

Syl. Pt. 3, Id. At the outset, we note that our opinion in In re: Cecil T. recognized that “this Court
has never held that incarceration can not [sic] be the sole basis for terminating parental rights.”
Id. at 96, 717 S.E.2d at 880. However, despite petitioner’s argument to the contrary, the record
clearly demonstrates that the circuit court relied upon several factors in terminating petitioner’s
parental rights in addition to his incarceration. The circuit court considered petitioner’s failure to
provide for the child in the past, as well as his inability to do so in the near future due to the
length of his incarceration; his inability to develop or participate in a family case plan; and the
child’s best interests given the child’s current age and his age at the time of petitioner’s release in
2020. Therefore, the circuit court did not violate the principles of In re: Cecil T, and we find no
error in the circuit court’s termination of parental rights in this matter.

       Moreover, the circuit court properly found that petitioner could not correct the conditions
of neglect in the near future and that termination was necessary for the child’s welfare. See Id. at
97, 717 S.E.2d at 881 (stating that “incarceration may unreasonably delay the permanent
placement of the child deemed abused or neglected, and the best interests of the child would be

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served by terminating the incarcerated person’s parental rights.”) 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 find no error in the circuit court’s November 6, 2014,
order, and we hereby affirm the same.


                                                                                       Affirmed.

ISSUED: June 15, 2015


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISSENTING AND WRITING SEPARATELY:

Justice Robin Jean Davis
Justice Menis E. Ketchum




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Justice KETCHUM, with whom Justice DAVIS joins, dissenting:


       The record demonstrates that each reason for terminating the father’s parental rights stem
from his incarceration. Parental rights should not be terminated when the sole basis is a parent’s
incarceration.

        The child will be fourteen years old when the father is released from prison in 2020. The
father should have an opportunity to establish a relationship with his child. I dissent.


       The record demonstrates that each reason for terminating the father’s parental rights stem
from his incarceration. Parental rights should not be terminated when the sole basis is a parent’s
incarceration.

        The child will be fourteen years old when the father is released from prison in 2020. The
father should have an opportunity to establish a relationship with his child. I dissent.




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