                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: J.P.-1, K.P., & S.M.
                                                                                       FILED
                                                                                  November 23, 2015
                                                                                  RORY L. PERRY II, CLERK
No. 15-0590 (Mingo County 14-JA-20, 14-JA-21, & 14-JA-22)                       SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA



                               MEMORANDUM DECISION
        Petitioner Father J.P.-2, by counsel Susan J. Van Zant, appeals the Circuit Court of
Mingo County’s May 29, 2015, order accepting his voluntary relinquishment of his parental
rights to J.P.-1, K.P., and S.M.1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel S.L. Evans, filed its response in support of the circuit court’s order. The
guardian ad litem, Diana Carter Wiedel, filed a response on behalf of the children. On appeal,
petitioner alleges that the circuit court erred in denying him continued visitation with the
children.2

        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.

        In January of 2014, the DHHR received a referral that S.M. witnessed several instances
of sexual abuse that her parents were alleged to have perpetrated on other teenagers. The referral
also stated that the parents offered their children alcohol and would physically abuse their
children. Child Protective Services (“CPS”) interviews over the next two months uncovered
additional allegations from a litany of individuals against the parents for an array of

       1
         The record on appeal indicates that petitioner is the biological father of J.P.-1 only.
According to the record, it was not until the dispositional hearing below that petitioner was
informed that he is not K.P.’s biological father. However, during the proceedings below,
petitioner voluntarily relinquished his parental rights to J.P.-1 and also his custodial rights to, at
least, K.P. Because he alleges on appeal that the circuit court erred in terminating his visitation
rights “to the children,” and out of an abundance of caution in ensuring the safety of all the
children involved, the Court will address the circuit court’s rulings as they apply to all the
children below.
       2
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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inappropriate and possibly illegal conduct, including maintaining inappropriate sexual
relationships with minors, abuse of controlled substances, and providing alcohol and controlled
substances to minors, among other allegations. CPS also discovered allegations of unsuitable
conditions in the home, including a lack of running water and food. Ultimately, CPS
substantiated neglect for a dangerous living environment, lack of supervision, emotional abuse,
and exposing the children to the sexual abuse of the other teenage victims. At some point, the
mother was charged with one count of sexual abuse by a parent, guardian, or custodian for
having an inappropriate relationship with a female student. The mother later pled guilty to one
count of third-degree sexual assault and is required to register as a sex offender.

        In May of 2014, the DHHR filed an abuse and neglect petition against the parents based
upon the investigation outlined above. The DHHR alleged that the parents failed to provide
appropriate supervision and subjected the children to unsuitable living conditions as well as
mental and emotional abuse by subjecting the children to inappropriate sexual relationships and
drug use. In June of 2014, the circuit court held an adjudicatory hearing, during which the circuit
court heard testimony from S.M., M.H., K.H., and CPS worker Lee Ann Blankenship. After
considering the testimony, the circuit court found that the DHHR failed to meet its burden of
proof in regard to the allegations of abuse and neglect and dismissed the petition. The circuit
court also ordered that the children be returned to the parents within fifteen days, though the
transfer of custody was stayed several times below pending the guardian’s subsequent appeal to
this Court.

        In July of 2014, the guardian appealed the circuit court’s order dismissing the petition
below. Ultimately, the Court reversed and remanded the matter for the entry of an adjudicatory
order finding the parents to be abusing parents and for further proceedings consistent with the
West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings and West Virginia
Code § 49-6-1 to § 49-6-12. In re: J.P., K.P., and S.M., No. 14-0668 (W.Va. Supreme Court,
November 24, 2014) (memorandum decision).

        After the matter was remanded, the circuit court held a dispositional hearing in April of
2015, during which petitioner requested that the matter be continued because of the
unavailability of a witness. The circuit court granted that motion and the matter was rescheduled
for May 13, 2015. At the rescheduled hearing, petitioner’s witness again did not appear.
Ultimately, petitioner voluntarily relinquished his parental rights to J.P.-1 and his custodial rights
to K.P., and the circuit court denied him visitation with the children. Petitioner appeals from the
dispositional order.

       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

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       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 proceedings below.

        In discussing continued visitation with children after a parent’s parental rights are no
longer intact, we have stated that

               the circuit court may nevertheless in appropriate cases consider whether
       continued visitation or other contact with the abusing parent is in the best interest
       of the child. Among other things, the circuit court should consider whether a close
       emotional bond has been established between parent and child and the child’s
       wishes, if he or she is of appropriate maturity to make such request. The evidence
       must indicate that such visitation or continued contact would not be detrimental to
       the child’s well being and would be in the child’s best interest.” Syl. Pt. 5, In re
       Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002). In the instant matter, the
record is clear that petitioner did not request visitation with the children following his voluntary
relinquishment of parental rights. Similarly, the record is clear that petitioner presented no
evidence below that continued contact with the children would be in their best interest. To the
contrary, the record shows that continued visitation with petitioner would not be in the children’s
best interest given the nature and prevalence of the allegations against them, including providing
the children with alcohol and committing acts of sexual abuse against other minors in the
children’s presence. For these reasons, we find no error in regard to the circuit court denying
petitioner continued contact with the children.

        In support of this argument, petitioner also alleges that his “parental rights should not
have been terminated even though he voluntarily relinquished” those rights, and that the
evidence below did not establish that there was no reasonable likelihood that he could
substantially correct the conditions of abuse and neglect in the near future such that termination
was required under West Virginia Code §49-6-5(b)(3). The Court, however, declines to address
these allegations because they have no basis in fact from the proceedings below. The record is
clear that petitioner voluntarily relinquished his parental rights to the children and that no
involuntary termination occurred.

        Further, to the extent petitioner argues that the circuit court erred in accepting his
voluntary relinquishment, the Court finds no error. In support of his lone assignment of error,
petitioner asserts that he decided to voluntarily relinquish his parental rights after a witness failed
to appear for the continued dispositional hearing. However, the record shows that although he
requested, and was granted, a continuance at the initial dispositional hearing because of this

                                                  3


witness’s failure to appear, petitioner did not request any continuance at the rescheduled
dispositional hearing. Thereafter, petitioner voluntarily relinquished his parental rights to the
children. Pursuant to West Virginia Code § 49-6-7, “[a]n agreement of a natural parent in
termination of parental rights shall be valid if made by a duly acknowledged writing, and entered
into under circumstances free from duress and fraud.” The record shows that petitioner entered
the written relinquishment freely and voluntarily. Indeed, on appeal, petitioner fails to even
allege that he entered into the relinquishment under any fraud or duress.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 29, 2015, order is hereby affirmed.


                                                                                       Affirmed.

ISSUED: November 23, 2015


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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