                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


In Re: J.C.
                                                                                    FILED
                                                                                   October 1, 2013
                                                                               RORY L. PERRY II, CLERK
No. 13-0393 (Braxton County 12-JA-21)                                        SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                                 MEMORANDUM DECISION

       Petitioner Father filed this appeal, by counsel David Karickhoff, from the April 11, 2013
order of the Circuit Court of Braxton County that terminated his parental and custodial rights to
J.C. The guardian ad litem, Clinton Bischoff, filed a response supporting the circuit court’s
order. The Department of Health and Human Resources (“DHHR”), by its attorney Angela
Walters, filed a response in support of the circuit court’s order. Petitioner Father filed a reply. On
appeal, Petitioner Father argues that the circuit court erred in terminating his parental and
custodial 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 July of 2012, the DHHR filed a petition alleging that Petitioner Father failed to supply
the child with necessary food, clothing, shelter, supervision, medical care, or education. The
petition also alleged that Petitioner Father abused the child by allowing the biological mother to
consume illegal drugs while she was pregnant and that he engaged in domestic violence. The
DHHR filed an amended petition in August of 2012, alleging that Petitioner Father had a prior
substantiated abuse and neglect case in which he declined to participate in DHHR services. On
August 30, 2012, the circuit court held an adjudicatory hearing during which Petitioner Father
admitted to knowing about the biological mother’s history of substance abuse; that there was a
domestic dispute in March of 2012, that did not involve law enforcement; and that he had a
previous abuse and neglect case which was substantiated and that he declined to participate in
DHHR services and opted to have no further contact with the children.

        Petitioner Father was granted a post-adjudicatory improvement period during the
biological mother’s dispositional hearing held on September 19, 2012. Specifically, Petitioner
Father was ordered to remain drug and alcohol free, to submit to random drug screens, to refrain
from engaging in domestic violence, to attend parenting classes, to obtain fit and suitable
housing, and to not come within 1,000 feet of the mother. A review hearing was held on
December 18, 2012, during which the circuit court found that Petitioner Father was compliant
with the terms and conditions of his improvement period. However, on January 10, 2013, the
DHHR filed a motion to terminate Petitioner Father’s post-adjudicatory improvement period for
violating its terms. In February of 2013, the circuit court suspended Petitioner Father’s visitation


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and scheduled an evidentiary hearing on the DHHR’s motion. Shortly after Petitioner Father’s
visitation rights were suspended the circuit court held an evidentiary hearing on February 22,
2013, and terminated his parental rights. It is from this order that Petitioner Father appeals.
Petitioner Father argues that the circuit court did not follow proper procedure in the disposition
of this case and there was no additional evidence of abuse or neglect.

       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 Father could substantially correct the conditions of abuse
and neglect in the foreseeable future. West Virginia Code § 49-6-5(b)(3) states that a
circumstance in which there is no reasonable likelihood that the conditions of abuse or neglect
can be substantially corrected in the near future circumstances in which “[t]he abusing parent . . .
[has] not responded 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.” A child protective services worker testified
that Petitioner Father stopped attending parenting skills classes, batterer’s group, and visitation.
Petitioner testified the he maintained a relationship with the biological mother and stopped
participating in services in direct violation of his improvement period. Petitioner Father even
appeared with the biological mother during the hearing despite having been ordered to stay 1,000
feet away from her as a term and condition of his improvement period. For these reasons, and
because the circuit court found that termination was in the child’s best interest, the circuit court
did not err in terminating Petitioner Father’s parental and custodial rights to the child as directed
by West Virginia Code 49-6-5(a)(6).

       For the foregoing reasons, we affirm the circuit court’s order terminating Petitioner
Father’s parental and custodial rights.

                                                                                          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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