                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS
                                                                                   FILED
                                                                                November 26, 2013
In Re: R.W.                                                                  RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
No. 13-0507 (Wood County 12-JA-145)


                                 MEMORANDUM DECISION

        Petitioner Father filed this appeal, by counsel John Woods, from the Circuit Court of
Wood County’s order entered on April 12, 2013. The guardian ad litem for the child, G. Bradley
Frum, filed a response supporting the circuit court’s order. The Department of Health and
Human Resources (“DHHR”), by its attorney Lee A. Niezgoda, has also filed a response in
support of the circuit court’s order. Petitioner filed a reply. Petitioner appeals the circuit court
adjudicating him as an abusing parent, as well as the termination of his parental rights following
the adjudication.

       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.

        In September of 2008, the DHHR filed a petition for abuse and neglect in the Circuit
Court of Gilmer County that alleged Petitioner Father abused and neglected two children.
Petitioner’s parental rights to those children were terminated by order entered February 11, 2009.
That order indicated that petitioner was willing to voluntarily relinquish his parental rights, but
had not yet completed the required forms to do so.1 On October 6, 2012, R.W. was born. Within
days, the DHHR filed a petition for abuse and neglect against petitioner and the child’s mother,
based upon prior terminations of parental rights for each parent. On November 9, 2012,
petitioner agreed to a stipulation that states in relevant part:

       6. [Petitioner] admits as follows:
               a. In January, 2009, [petitioner’s] parental and custodial rights and
               responsibilities to two children were terminated in Gilmer County.2

1
  Petitioner and R.W.’s guardian dispute whether the February of 2009 order was for an
involuntary termination or a voluntary relinquishment of parental rights.
2
  At this point in the copy of the stipulation provided by petitioner in the record, there is a
description of the two children from Ritchie County, and a notation that the DHHR had not been
able to secure documentation of the allegations. However, the description was crossed out. The
document appears to have been signed by the Assistant Prosecuting Attorney and is labeled
“John Woods Copy.” John Woods is petitioner’s counsel.

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               b. These terminations were based in part upon grounds of not complying
               with services or participating in drug screens and [petitioner’s] inability to
               care for the children.
       7. Based upon this stipulation, [petitioner] admits that he has had his parental
       rights to his children terminated in the past within the meaning of the West
       Virginia Code 49-6-1 et. al. [sic]

The stipulation went on to describe petitioner’s willingness to participate in an improvement
period and states that it was in the best interest of the child to remain in the custody of the DHHR
with petitioner receiving a six-month improvement period. The circuit court accepted petitioner’s
stipulation, adjudicated him to be an abusing parent, granted him a six-month improvement
period, and entered an order dated November 14, 2012, stating that the circuit court informed
petitioner

       of the rights and procedures [he] would be waiving and forfeiting if this
       stipulation of facts is accepted by the Court, including the right to contest the
       allegations in the petition, the right to present in a hearing any evidence and
       testimony to refute the allegations, and the right to appeal any adverse
       adjudication. [Petitioner] then replied to the Court that [he] understood and knew
       the rights and privileges which would be waived and forfeited upon the Court’s
       acceptance of the stipulation of facts, and that [he] had not been coerced or
       pressured into the admission[] and stipulation[].

         Sometime between the adjudication and before a review hearing in February of 2013,
petitioner was incarcerated for suspicion of breaking and entering. At the review hearing, the
circuit court terminated petitioner’s improvement period for inability to comply with the terms of
the improvement period due to his incarceration. By order entered April 26, 2013, the circuit
court terminated petitioner’s parental rights to R.W., based upon the stipulation, petitioner’s
inability to comply with services as a result of his incarceration, and the best interest of the child.
It is from this order that petitioner appeals, contesting his adjudication as an abusing parent.

       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).


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Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

        On appeal, petitioner argues that his stipulation did not admit that his prior termination
was involuntary and, therefore, the prior termination cannot be a basis for him being adjudicated
an abusing parent, absent specific allegations of abuse or neglect. Specifically, petitioner argues
that his description of the prior termination did not specify the termination was involuntary and
that the prior termination was a voluntary relinquishment. Petitioner further argues that the
circuit court should have rejected the parties’ stipulation that the prior termination was “based in
part upon grounds of not complying with services or participating in drug screens and
[petitioner’s] inability to care for the children” because, petitioner argues, it was clear error to do
so.

        The circuit court was not clearly erroneous in finding that petitioner stipulated to a prior
involuntary termination. While petitioner is correct that the word “involuntary” was never used
in the stipulation, neither was his prior termination described as “voluntary” or as a
“relinquishment.” The stipulation referred to his termination as being “within the meaning of
West Virginia Code § 49-6-1 et al.,” but the procedure for voluntary relinquishment of parental
rights is described in West Virginia Code § 49-3-1; and West Virginia Code § 49-6-1, et seq.
addresses involuntary termination. Additionally, the circuit court’s adjudication was supported
by the fact that his stipulation included his participation in an improvement period, which would
not be necessary without admitting that the prior termination constituted abuse to R.W. Further,
we find that the circuit court was presented with sufficient evidence upon which it based its
finding that there was no reasonable likelihood to believe that the conditions of abuse and
neglect could be substantially corrected in the near future, and that termination was necessary for
the child’s welfare. At the time of disposition, it was unclear when or if petitioner would be able
to participate in his improvement plan in the near future. 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 affirm the circuit court’s order terminating petitioner’s
parental rights to the subject children.

                                                                                            Affirmed.

ISSUED: November 26, 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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