                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS

                                                                                     FILED
In re S.M.                                                                         April 9, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
No. 17-0986 (Marion County 15-JA-120)                                                OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
        Petitioner Father R.J., by counsel Scott A. Shough, appeals the Circuit Court of Marion
County’s September 28, 2017, order terminating his parental rights to S.M.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Terri L.
Tichenor, filed a response on behalf of the child in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in relying solely on his incarceration at
disposition.

        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 December of 2015, the DHHR filed an abuse and neglect petition that alleged that the
parents’ substance abuse rendered them unable to safely parent the child. According to the
petition, the parents left controlled substances and drug paraphernalia within reach of the child.
The petition further alleged that the parents were charged criminally with felony child neglect
creating risk of injury based on the actions alleged in the petition. The petition additionally
alleged that petitioner perpetrated domestic violence in the home. Petitioner was incarcerated
prior to the preliminary hearing on the related criminal charge and a revocation of probation for a
prior criminal offense.

       In March of 2016, the circuit court adjudicated petitioner, who remained incarcerated,
upon his stipulation that his substance abuse negatively affected his ability to parent the child
and that he abused controlled substances while caring for the child. Thereafter, the matter was
continued multiple times while the mother participated in an improvement period. Petitioner
remained incarcerated during this time.
                                                            
              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).
                                                                   1

 
        In August of 2017, the circuit court held a final dispositional hearing, during which it
found that petitioner’s continued incarceration prevented him from providing care for the child
or otherwise participating in services to remedy the issues of abuse and neglect. Ultimately, the
circuit court terminated petitioner’s parental rights.2 It is from the dispositional 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 proceedings below.

        On appeal, petitioner cites to only one authority in support of his argument. Specifically,
petitioner alleges that “the sole basis for the termination of his parental rights was incarceration
and that therefore pursuant to this [C]ourt’s holding in In Re: Cecil T.[,] 228 W.Va. 89, 717
S.E.2d 873 (2011) the lower court erred in terminating his parental rights.” We disagree, as
petitioner’s argument misstates Cecil T., wherein we noted that “this Court has never held that
incarceration can not be the sole basis for terminating parental rights.” 228 W.Va. at 96, 717
S.E.2d at 880. Accordingly, petitioner’s entire argument on appeal to this Court is without
support from any controlling authority.

        Moreover, the record is clear that termination was appropriate. Specifically, petitioner
admitted at adjudication that his substance abuse negatively impacted his ability to parent the
child and that he abused controlled substances while the child was in his care, custody, and
control. At disposition, the circuit court found that petitioner failed to participate in any services
to remedy these conditions. Indeed, on appeal to this Court, petitioner acknowledges that any
treatment he may have undergone during the proceedings was insufficient to establish that he
remedied the conditions of abuse and neglect.


                                                            
              2
       The mother voluntarily relinquished her parental rights during the proceedings below.
According to respondents, the permanency plan for the child is adoption by a relative.
                                                               2

 
        According to West Virginia Code § 49-4-604(c)(1), a situation in which there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected in the
near future includes one in which

       [t]he abusing parent . . . [has] habitually abused or [is] addicted to alcohol,
       controlled substances or drugs, to the extent that proper parenting skills have been
       seriously impaired and the person or persons have not responded to or followed
       through the recommended and appropriate treatment which could have improved
       the capacity for adequate parental functioning[.] 
 
Based upon the evidence, and in accordance with this statute, the circuit court found that there
was no reasonable likelihood that petitioner could substantially correct the conditions of abuse
and neglect in the near future. The circuit court additionally found that termination of petitioner’s
parental rights was necessary for the child’s welfare. West Virginia Code § 49-4-604(b)(6)
permits circuit courts to terminate parental rights upon these findings. Accordingly, we find no
error in the circuit court’s termination of petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 28, 2017, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: April 9, 2018


CONCURRED IN BY:

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




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