                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS

                                                                                    FILED
                                                                                  October 1, 2013
In Re: P.S., T.S., and S.S.                                                   RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

                                                                                OF WEST VIRGINIA

No. 13-0295 (Barbour County 11, JA-37, 11-JA-38, and 11-JA-39)


                                 MEMORANDUM DECISION

        Petitioner Father filed this appeal, by counsel Roger D. Curry, from the Circuit Court of
Barbour County, which terminated his parental rights to child S.S. by order entered on February
25, 2013.1 The guardian ad litem for the child, Karen Hill Johnson, has 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 contends that the circuit court should have terminated his custodial
rights only, not his parental rights.

       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 October of 2011, the DHHR filed its petition initiating this abuse and neglect case. The
petition alleged that a domestic dispute occurred between petitioner and the child’s mother on
October 11, 2011. Both parents waived their rights to a preliminary hearing and, at adjudication,
each stipulated to daily drug use and to their history of domestic violence. The circuit court
granted both parents six-month improvement periods and placed child S.S. with petitioner’s
father. In August of 2012, each parent pled guilty to one count of possession with the intent to
manufacture a controlled substance. Following the dispositional hearing in October of 2012, the
circuit court terminated petitioner’s parental rights to S.S. and maintained S.S.’s placement with
his paternal grandfather. Petitioner now appeals.2

       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
1
 Petitioner is the biological father of S.S. only. P.S. and T.S. are S.S.’s half-siblings and have
different fathers.
2
  Petitioner’s counsel, Roger D. Curry, provides in his appellate brief that, at the time the petition
for appeal was filed, petitioner’s whereabouts were unknown.

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       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).

        Petitioner’s sole argument on appeal is that the circuit court improperly ordered
termination of his parental rights, rather than terminating only his custodial rights. Petitioner
concedes that he is currently unable to care for S.S., but contends that there would have been no
danger to the child if the circuit court had refrained from permanently terminating petitioner’s
parental rights to S.S. Petitioner highlights that S.S. is in the care and physical custody of his
grandfather. He argues that if he is later able to rehabilitate himself and reenter the community,
termination of his custodial rights only would allow him to possibly once again parent S.S.
Petitioner asserts that the child would not be harmed by “waiting some period of time” in hopes
of family restoration.

         Upon our review of the record, we find no error or abuse or discretion in the termination
of petitioner’s parental rights. “‘Although parents have substantial rights that must be protected,
the primary goal in cases involving abuse and neglect, as in all family law matters, must be the
health and welfare of the children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589
(1996).” Syl. Pt. 2, In re Timber M., -- W.Va. --, 743 S.E.2d 352 (2013). The record supports the
circuit court’s thorough findings concerning petitioner’s unwillingness and inability to conquer
his drug addiction. Additionally, at the time this appeal was filed, petitioner’s counsel provided
that petitioner’s whereabouts were unknown, leaving doubt that petitioner intends to improve his
circumstances with S.S. The record and the circuit court’s findings support its conclusions that
there was no reasonable likelihood to believe that conditions of abuse and neglect could be
substantially corrected in the near future, and that termination was necessary for the child’s
welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate
parental rights upon such findings. Our review of the record does not provide support for
anything short of the terminating petitioner’s parental rights to warrant overturning the circuit
court.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.




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ISSUED: October 1, 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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