                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: A.O., R.O., R.O., and C.O.                                                  FILED
                                                                                  June 2, 2014
No. 13-1297 (Mercer County 12-JA-70, 71, 72, and 73)                         RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA


                              MEMORANDUM DECISION
         Petitioner Father filed this appeal by his counsel, Gerald R. Linkous, from an order
entered December 6, 2013, in the Circuit Court of Mercer County, which terminated his parental
rights to eight-year-old A.O., seven-year-old R.O.-1, five-year-old R.O.-2, and two-year-old
C.O.1 The guardian ad litem for the children, Michael P. Cooke, filed a response in support of the
circuit court’s order. The Department of Health and Human Resources (“DHHR”), by its
attorney, Michael L. Jackson, also filed a response in support of the circuit court’s order.
Petitioner argues that the circuit court erred in terminating his parental rights when a less
restrictive alternative was available and when its order did not properly set forth factual findings
in support of termination.

        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 DHHR filed an abuse and neglect petition against petitioner in April of 2012. The
petition alleged that petitioner engaged in drug use and domestic violence in the children’s
presence. For instance, R.O.-1 disclosed that petitioner “gives himself shots in the arms.” The
petition also alleged that petitioner physically abused the children and traded most of the
family’s Temporary Assistance for Needy Families (“TANF”) benefits for drugs. At the
adjudicatory hearing, the circuit court found that petitioner abused his children primarily through
their exposure to domestic violence and that petitioner neglected the children primarily through
his substance abuse problems, including trading in household resources for the purchase of
drugs. In January of 2013, the circuit court granted petitioner a post-adjudicatory improvement
period. Only two weeks before the improvement period, petitioner tested positive for oxycontin
and marijuana. As part of the improvement period, petitioner participated in developing a family
case plan with the DHHR, which outlined plans for petitioner to participate in parenting and
adult life skills to learn appropriate parenting and decision making skills, including parenting
techniques and ways to protect the children. Shortly after this plan was implemented, however, at

1
  Because two of the children in this case have the same initials, we have distinguished each of
them using numbers 1 and 2 after their initials in this Memorandum Decision. The circuit court
case numbers also serve to distinguish each child.

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the end of January of 2013, petitioner was arrested for armed robbery. The circumstances of this
robbery were related to petitioner’s substance abuse issues. Petitioner was subsequently
sentenced to consecutive terms in prison for a total of seven to thirty-one years.

        Upon the DHHR’s motion to terminate petitioner’s parental rights, the circuit court held a
dispositional hearing in September of 2013, which continued in October of 2013. The circuit
court heard testimony from petitioner’s caseworker that although they developed a family case
plan together, shortly afterward, petitioner was incarcerated for his attempt to commit a felony,
breaking and entering, and second degree robbery. When the circuit court reconvened the
dispositional hearing in October, the parties reported that petitioner was still incarcerated and
that his motion for reconsideration of his sentence in the criminal matter was still pending. The
circuit court terminated petitioner’s parental rights after finding that the children could not wait
on their father to be released. After the circuit court entered its order terminating petitioner’s
parental rights, petitioner filed this appeal.

        This 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).

        Petitioner raises two assignments of error on appeal. First, petitioner argues that the
circuit court erred by terminating his parental rights instead of using a less restrictive
dispositional sentence. Petitioner asserts that only his custodial rights should have been
terminated because all of the children are in the care and custody of their biological mothers.
Second, petitioner argues that the circuit court’s order terminating his parental rights is
insufficient in that it fails to properly set forth factual findings to support the conclusion that the
termination of petitioner’s full parental rights is necessary. Petitioner asserts that the circuit court
should outline its reasons for terminating his parental rights.

        Upon our review of the record, we find no error by the circuit court in terminating
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


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(1996).” Syl. Pt. 2, In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013). We have also held as
follows:

               “[C]ourts are not required to exhaust every speculative possibility of
       parental improvement . . . where it appears that the welfare of the child will be
       seriously threatened, and this is particularly applicable to children under the age
       of three years who are more susceptible to illness, need consistent close
       interaction with fully committed adults, and are likely to have their emotional and
       physical development retarded by numerous placements.” Syl. Pt. 1, in part, In
       Re: R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 4, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Under West Virginia Code §
49-6-5(b)(3), circumstances in which a parent fails to respond to rehabilitative efforts are
considered those in which there is no reasonable likelihood that the conditions of neglect or
abuse can be substantially corrected in the near future. In cases where a parent is incarcerated
during an abuse and neglect proceeding, we have held as follows:

               When 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, In Re: Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). We also bear in mind the
following:

              “Where it appears from the record that the process established by the
       Rules of Procedure for Child Abuse and Neglect Proceedings . . . has been
       substantially disregarded or frustrated, the resulting order of disposition will be
       vacated and the case remanded for compliance with that process and entry of an
       appropriate dispositional order.” Syl. Pt. 5, In re Edward B., 210 W.Va. 621, 558
       S.E.2d 620 (2001).

Syl. Pt. 6, In re Elizabeth A., 217 W.Va. 197, 617 S.E.2d 547 (2005).

        The record reveals that although petitioner worked with the DHHR to develop a family
case plan, he did not demonstrate compliance with its terms or an understanding of its objectives.
During the pendency of this abuse and neglect proceeding, petitioner tested positive for
oxycontin and marijuana and, within only a few weeks of developing the family case plan,
committed armed robbery under circumstances intertwined with his substance abuse issues. The
DHHR’s primary argument at the dispositional hearing was petitioner’s incarceration. In
reviewing these circumstances, the record shows that the circuit court also considered the crime


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for which petitioner was incarcerated, his length of incarceration, and the children’s best
interests. Coupled with the children’s need for permanency, this evidence was more than
sufficient to support the circuit court’s findings and conclusions that there was no reasonable
likelihood that conditions of abuse and neglect could be substantially corrected in the near future,
and that termination was necessary for the children’s welfare. Pursuant to West Virginia Code §
49-6-5(a)(6), circuit courts are directed to terminate parental rights upon such findings. Although
petitioner contends that this case should be remanded with directions to the circuit court to
outline its reasons for terminating his parental rights, the record is clear that petitioner did not
comply with the terms of his improvement period and that the circuit court considered the
circumstances of petitioner’s incarceration at the dispositional hearing. Therefore, the circuit
court’s order does not substantially disregard or frustrate the principles of the Rules of Procedure
for Child Abuse and Neglect Proceedings.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.


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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