                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: T.K.                                                                        FILED
                                                                                 March 31, 2014
                                                                             RORY L. PERRY II, CLERK
No. 13-0950 (Nicholas County 13-JA-28)                                     SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA



                                 MEMORANDUM DECISION

        Petitioner Father, by counsel Sarah R. Campbell, appeals the Circuit Court of Nicholas
County’s August 15, 2013, order terminating his parental rights to T.K. The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel William P. Jones, filed its
response in support of the circuit court’s order. The guardian ad litem, Julia R. Callaghan, filed a
response on behalf of the child supporting the circuit court’s order. On appeal, petitioner alleges
that the circuit court erred in terminating his parental rights based solely on his incarceration.

        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.

        The subject child, T.K., was born in May of 2010. Since June of 2010, the child has
resided with his maternal ex-step-grandfather. In April of 2012, petitioner was sentenced to a
term of incarceration of one to five years for the offense of unlawful wounding in a criminal case
unrelated to the abuse and neglect matter. Thereafter, in April of 2013, the DHHR filed an abuse
and neglect petition against the parents upon allegations that the mother abused alcohol and
controlled substances and engaged in domestic violence with her boyfriend. The petition further
alleged that petitioner was incarcerated and failed to provide the child with food, shelter,
developmental support, and medical care.

        In May of 2013, the circuit court held an adjudicatory hearing, finding petitioner to be an
abusing parent due to his lack of contact with the child and failure to provide any support. In
June of 2013, the circuit court held a dispositional hearing and terminated petitioner’s parental
rights upon findings that petitioner only visited his child on two or three occasions, and that he
had not seen the child since October of 2010 when the child was five months old. Additionally,
the circuit court noted that petitioner had never paid child support or provided for the child in
any way. It is from the dispositional order that petitioner 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

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       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. We have previously held
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. Petitioner argues that it was error for the circuit court to terminate his parental
rights upon his incarceration, but fails to recognize that the circuit court based termination on
many other factors. These include petitioner’s failure to visit with the child well before his
incarceration for unlawful wounding and his failure to provide the child with support of any
kind. As such, the circuit court was not required to undertake the analysis described above, and
petitioner’s argument that his incarceration was based upon a crime that was not committed in
the child’s presence is irrelevant.

        Further, while petitioner argues that he should have been entitled to a less restrictive
dispositional alternative because he was going to be parole eligible shortly after the dispositional
hearing and because he completed programs while incarcerated that are consistent with services
offered during an improvement period, the Court finds no merit to this argument. Nothing in the
record indicates that the circuit court failed to consider these issues, and it ultimately found that
there was no reasonable likelihood that petitioner could correct the conditions of abuse or neglect
in the near future and that termination was necessary for the child’s welfare. These findings were
supported by the evidence set forth above, as well as the additional finding that petitioner had no
bond with the child. West Virginia Code § 49-6-5(a)(6) directs circuit courts to terminate
parental rights upon such findings. Therefore, termination of petitioner’s parental rights was
appropriate.



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      For the foregoing reasons, we find no error in the decision of the circuit court and its
August 15, 2013, order is hereby affirmed.


                                                                                    Affirmed.

ISSUED: March 31, 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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