                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS

                                                                                      FILED
In Re: M.R.                                                                         October 1, 2013

                                                                                RORY L. PERRY II, CLERK

                                                                              SUPREME COURT OF APPEALS

No. 13-0493 (Mercer County 11-JA-154)                                             OF WEST VIRGINIA


                                  MEMORANDUM DECISION

        Petitioner Father, by counsel Michael P. Cooke, appeals the Circuit Court of Mercer
County’s April 15, 2013 order terminating his parental rights to the child, M.R. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Angela Alexander
Walters, filed its response in support of the circuit court’s order. The guardian ad litem, Ryan J.
Flanigan, filed a response on behalf of the child supporting the circuit court’s order. On appeal,
petitioner alleges that the circuit court erred in finding there was no reasonable likelihood that the
conditions of neglect could be substantially corrected in the near future.

       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 July of 2011, the DHHR filed a petition against the parents due to Respondent Mother
being homeless, unemployed, and without resources to properly care for M.R.1 The petition
alleged that petitioner was incarcerated in Wisconsin and failed to provide for the child’s basic
needs, including food, clothing, and shelter. Petitioner was initially incarcerated when the child
was three months old and remained incarcerated throughout these proceedings. After resolving
service of process issues related to petitioner’s incarceration, the circuit court held an adjudicatory
hearing in October of 2011, during which the child was adjudicated as neglected and petitioner
was granted a post-adjudicatory improvement period. Over the next several months, petitioner
filed disclosures related to courses he was completing while incarcerated. Petitioner received his
G.E.D. during this period and also provided the circuit court with an Earned Release Program
Memo of Agreement. This document constituted an agreement between petitioner and the
Wisconsin Division of Corrections for petitioner to participate in a rehabilitation program that
would allow him early release from incarceration.

       During this period, the circuit court ordered petitioner’s post-adjudicatory improvement
period be extended several times. In July of 2012, the circuit court held a dispositional hearing
1
  Another child, L.R., was also the subject of the petition, but petitioner is not that child’s
biological parent nor has he ever had contact with that child. As such, petitioner raised no
argument in regard to this child, and L.R. is not the subject of this memorandum decision.

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and granted petitioner a dispositional improvement period, and the circuit court continued this
improvement period following a review hearing. Thereafter, the DHHR filed a motion to
terminate petitioner’s parental rights upon allegations that petitioner had ceased communication
with M.R. and that his release date had been changed from February of 2013 to December of
2013 due to his own misconduct. In April of 2013, the circuit court held a dispositional hearing
and terminated petitioner’s parental rights upon a finding that there was no reasonable likelihood
that petitioner could substantially correct the conditions of neglect in the near future. It is from
this 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 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 finding that there was no
reasonable likelihood that petitioner could substantially correct the conditions of neglect in the
near future. This finding was based upon the fact that petitioner ceased communication with his
child in May of 2012. Further, the circuit court based this finding on the fact that petitioner’s
projected date of release from incarceration had been moved to December of 2013 due to
petitioner’s misconduct. According to the circuit court, petitioner had no meaningful relationship
with M.R. because he was incarcerated from the time she was three months old until disposition,
when M.R. was five years old.

        According to West Virginia Code § 49-6-5(b)(3), a circumstance in which there is no
reasonable likelihood that conditions of abuse or neglect can be substantially corrected in the near
future includes conditions in which

       [t]he abusing parent . . . [has] not responded to or followed through with a
       reasonable family case plan or other rehabilitative efforts of social, medical,
       mental health or other rehabilitative agencies designed to reduce or prevent the
       abuse or neglect of the child, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child[.]

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In the present case, the evidence outlined above supports the circuit court’s finding as to the lack
of a reasonable likelihood that petitioner could substantially correct the conditions of neglect in
the near future. It is undisputed that petitioner was not scheduled to be released from prison until
at least eight months after the dispositional hearing. As such, it is clear that petitioner could not
substantially correct the conditions of neglect in the near future, as he was adjudicated of
neglecting the child by failing to provide for her basic needs.

        While petitioner argues that the circuit court erred in making this finding because it
disregarded our prior holding in In re Cecil T, we find no merit to this argument. In that case, we
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, In re Cecil T, 228 W.Va. 89, 717 S.E.2d 873 (2011). The record is clear that the circuit
court considered factors in addition to petitioner’s incarceration, including his lack of contact with
M.R. The circuit court was presented with evidence that, while incarcerated, petitioner had
previously spoken with M.R. on the phone and had written her letters. However, evidence at
disposition established that petitioner ceased communication with the child in May of 2012.
Petitioner argues that the circuit court did not comply with this syllabus point because it failed to
consider the offense for which he was incarcerated and the length of his incarceration, but the
record is clear that the circuit court considered factors other than petitioner’s incarceration at
disposition. As such, we find no error in the circuit court’s findings.

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

                                                                                           Affirmed.
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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