                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In re: F.N. and G.N.                                                            FILED
No. 16-0456 (Kanawha County 15-JA-126 & 15-JA-127)
                                                                           November 14, 2016
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

                              MEMORANDUM DECISION
       Petitioner Father C.B., by counsel Matthew A. Victor, appeals the Circuit Court of
Kanawha County’s February 22, 2016, order terminating his parental rights to two-year-old F.N.
and one-year-old G.N.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 (“guardian”), Bryan B. Escue, filed a response on behalf of the children also in
support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in
terminating his parental rights based solely on his incarceration.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 May of 2015, the DHHR filed an abuse and neglect petition against petitioner and the
children’s mother. In the petition, the DHHR alleged that petitioner was arrested and
incarcerated in March of 2015 for fleeing police in a vehicle, speeding, reckless driving,
prohibited driving in a center turn lane, failure to obey traffic control device, driving on an
invalid license revoked for DUI, transferring and receiving a stolen vehicle, and possession of a
controlled substance with the intent to deliver methamphetamine. While it was unclear from the

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
       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 on May 20, 2015. In this memorandum decision, we apply the statutes as they
existed during the pendency of the proceedings below. It is important to note, however, that the
abuse and neglect statutes underwent minor stylistic revisions and the applicable changes have
no impact on the Court’s decision herein.
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allegations whether petitioner was then incarcerated in a regional jail or in a work-release
program, the DHHR claimed that petitioner could not provide parental supervision, housing,
food, clothing, and other necessities to the children because he was under the custodial
supervision of the State of West Virginia for his criminal charges. The DHHR also alleged that
petitioner had an extensive criminal history with eight felony convictions and a history with
Child Protective Services (“CPS”).

        In July of 2015, the circuit court held a preliminary hearing. Petitioner was not present in
person, but he was represented by counsel who admitted that petitioner was incarcerated at that
time. The hearing was continued for purposes of allowing the DHHR to complete its notice to
the parents. In August of 2015, the circuit court held a second preliminary hearing. At that
hearing, petitioner appeared in person and by counsel and was said to have been released from
his incarceration. At the conclusion of that hearing, the circuit court permitted the children to
remain in the temporary custody of the DHHR and scheduled the matter for an adjudicatory
hearing.

        In September of 2015, the circuit court held an adjudicatory hearing. Petitioner was not
present in person, but he was represented by counsel. At that hearing, a CPS worker testified that
petitioner was again incarcerated at that time. The CPS worker explained that petitioner had an
extensive criminal history, which included a record of eight felony convictions. When the CPS
worker attempted to explain his incarceration by stating that she “belie[ved] [petitioner] broke
his probation[,]” the circuit court sustained an objection to her testimony as speculative. At the
conclusion of the hearing, the circuit court found that petitioner “continues to find himself
incarcerated” and that “he’s certainly not able to parent and definitely neglecting his children by
his inability to stay out of jail long enough to even try to parent them.” The circuit court
adjudicated petitioner as an abusing parent.

        In February of 2016, the circuit court held a dispositional hearing. Petitioner was not
present in person, but he was represented by counsel. At that hearing, the CPS worker testified
that petitioner remained incarcerated. The CPS worker explained that it was her understanding
that petitioner was not scheduled to be released from jail “any time soon” and that petitioner
could not complete services to reunify with his children from jail. The CPS worker
recommended that petitioner’s parental rights be terminated because there was no reasonable
likelihood that the abuse and neglect could be corrected in the near future. At the conclusion of
that hearing, the circuit court found that petitioner was not fit to parent and that there was no
likelihood that he could gain the ability to parent in the near future. The circuit court further
found that the children required permanency. Based on those findings, the circuit court
terminated petitioner’s parental rights to the children. This appeal followed.

       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

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       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). Further, our case law is clear that
“in the context of abuse and neglect proceedings, the circuit court is the entity charged with
weighing the credibility of witnesses and rendering findings of fact.” In re Emily, 208 W.Va.
325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478,
525 S.E.2d 669 (1999)); see also Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d
531, 538 (1997) (stating that “[a] reviewing court cannot assess witness credibility through a
record. The trier of fact is uniquely situated to make such determinations and this Court is not in
a position to, and will not, second guess such determinations.”).

        On appeal, petitioner argues that the circuit court erred in terminating his parental rights
to the children based solely on his incarceration. This Court has explained that incarceration may
form the basis for a termination of parental rights. In re Cecil T., 228 W.Va. at 96, 717 S.E.2d at
880. In Cecil T., we explained that

               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. at 91, 717 S.E.2d at 875.

        In this case, the CPS worker testified at the dispositional hearing that petitioner was
incarcerated with eight pending criminal charges, including multiple felonies. Further, the CPS
worker testified that it was her understanding that petitioner was not scheduled to be released
“any time soon[.]” While petitioner now attempts to categorize his incarceration as “temporary,”
the evidence before the circuit court does not support that categorization. It is undisputed that
petitioner was incarcerated, or in a restrictive work release program, at the outset of these
proceedings in May of 2015. He remained incarcerated through the preliminary hearing in July
of 2015; was released from incarceration for a short period in approximately August of 2015;
and was reincarcerated for the remainder of the proceedings below, which included his
incarceration during the adjudicatory hearing in September of 2015 and the dispositional hearing
months later in February of 2016. Further, according to the CPS worker, he would not be

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released “any time soon” and could not complete services to correct the conditions of neglect
from jail.

        Therefore, as to the length of his incarceration, uncontested evidence established that
petitioner was incarcerated throughout the majority of the underlying proceedings and, by the
time of the dispositional hearing, would likely not be released “any time soon[.]” As to the nature
of his offenses, the CPS worker catalogued petitioner’s charges to the circuit court, and those
charges included three felony counts: fleeing police in a vehicle; possession with the intent to
deliver methamphetamine; and transferring and receiving a stolen vehicle. As to the terms of
petitioner’s incarceration, the circuit court heard evidence that petitioner was housed in a
regional jail and could not complete corrective services while so incarcerated. Based on that
evidence, the circuit court found that there was no indication that petitioner could correct the
conditions of neglect in the near future and that the children’s best interests were served by
terminating his parental rights. Following our review of the issue, we find no error in the circuit
court’s order terminating petitioner’s parental rights to the children.

       For the foregoing reasons, we hereby affirm the circuit court’s February 22, 2016, order.

                                                                                        Affirmed.

ISSUED: November 14, 2016


CONCURRED IN BY:

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




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