                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS

                                                                                     FILED
                                                                                   October 1, 2013
In Re: B.R. & C.R.                                                             RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
No. 13-0351 (Mingo County 12-JA-36, 12-JA-37, 12-JA-38, & 12-JA-39)              OF WEST VIRGINIA




                                 MEMORANDUM DECISION

        Petitioner Father, by counsel David R. Barney Jr., appeals the Circuit Court of Mingo
County’s March 11, 2013 order terminating his parental rights to B.R. and C.R.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Michael L. Jackson,
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 supporting the circuit court’s order. Petitioner
filed a reply. On appeal, petitioner alleges (1) that the circuit court erred in finding that he
abandoned his children, (2) that the Uniform Family Case Plans entered below were legally and
factually deficient, (3) that the circuit court erred in finding there was no reasonable likelihood
that he could substantially correct the conditions of abuse and neglect in the near future, and (4)
that the circuit court denied him a full and fair dispositional hearing.

       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.

        Sometime in 1999, petitioner pled guilty to two counts of sexual abuse by a parent,
guardian, or custodian and was sentenced to consecutive five to fifteen year terms of
incarceration. While petitioner was incarcerated for these crimes, the DHHR filed its initial
petition on May 29, 2012, alleging that the children’s mother was not providing the children with
adequate supervision and that petitioner was serving a long term of incarceration. On June 19,
2012, the circuit court held an adjudicatory hearing during which it found that petitioner had
neglected the children by his failure to intervene and protect them. Additionally, the circuit court
found that petitioner had abandoned the children. During a later hearing, the circuit court ordered
that petitioner undergo a psychological evaluation. After a dispositional hearing in November of
2012, the children were returned to the legal and physical custody of their mother. In February of



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         The circuit court proceedings concerned two additional children who are not petitioner’s
biological children. Petitioner addresses only B.R. and C.R. in his petition for appeal.
Accordingly, only B.R. and C.R. are addressed in this memorandum decision.
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2013, the circuit court held a dispositional hearing as to petitioner and terminated his parental
rights. Petitioner appeals from the order terminating his parental rights.

       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 termination of petitioner’s
parental rights. To begin, the Court declines to address petitioner’s assignment of error related to
the circuit court’s finding that petitioner abandoned his children. While petitioner argues that
incarceration, per se, is insufficient to support a finding of abandonment, the Court notes that it is
unnecessary to analyze this assignment of error for purposes of this appeal because, in addition to
the finding of abandonment, the circuit court also found that petitioner’s failure to protect the
children constituted neglect. As such, petitioner is an abusing parent as that term is defined in
West Virginia Code § 49-1-3(2), and the circuit court properly adjudicated him as such. Further,
in its dispositional order terminating petitioner’s parental rights, the circuit court did not make any
findings regarding abandonment or rely on the prior finding of abandonment in reaching its
decision to terminate. As such, it is clear that the finding of abandonment was unnecessary in
regards to the circuit court terminating petitioner’s parental rights, and we decline to address the
propriety of the finding on appeal.

        Second, the Court finds no merit in petitioner’s argument that the Family Case Plan in the
circuit court was legally or factually deficient. It is important to note that there is no evidence in
the record that petitioner objected to any alleged deficiency with the case plan below. We have
previously held that “[o]ur general rule is that nonjurisdictional questions . . . raised for the first
time on appeal, will not be considered.” Noble v. W.Va. Dep’t of Motor Vehicles, 223 W.Va. 818,
821, 679 S.E.2d 650, 653 (2009) (quoting Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333,
349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999)).

       While petitioner argues that the case plan “failed to establish, by clear and convincing
evidence, that termination was warranted,” the Court notes that there is no requirement in the

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West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, or any other
authority, that Family Case Plans contain information sufficient to satisfy this burden. To the
contrary, the Court has previously addressed the clear and convincing standard in the context of
abuse and neglect proceedings as follows:

        “W.Va.Code, 49–6–2(c) [1980], requires the State Department of Welfare [now
       the Department of Health and Human Resources], in a child abuse or neglect case,
       to prove ‘conditions existing at the time of the filing of the petition . . . by clear
       and convincing proof.’ The statute, however, does not specify any particular
       manner or mode of testimony or evidence by which the State Department of
       Welfare is obligated to meet this burden.” Syllabus Point 1, In Interest of S.C., 168
       W.Va. 366, 284 S.E.2d 867 (1981).

Syl. Pt. 3, In re Randy H., 220 W.Va. 122, 640 S.E.2d 185 (2006). For these reasons, the Court
declines to find error in regard to the case plans submitted below.

        As to petitioner’s assignment of error regarding the appropriateness of the dispositional
hearing, the Court finds no violation of petitioner’s due process rights. While petitioner argues
that the circuit court should have granted a continuance because his counsel was appointed only
three weeks prior to the dispositional hearing and did not obtain the case file until the day of the
hearing, the record shows that the file was available for copying and counsel had sufficient time
to obtain and review the same in anticipation of the hearing. Further, the Court finds no merit in
petitioner’s argument that alleged hearsay evidence introduced during the dispositional hearing
constituted error. Specifically, petitioner argues that he should have been allowed to subpoena his
children to testify as to their wishes for disposition because the only evidence in this regard was
provided by a Child Protective Services (CPS) worker. However, in regard to children testifying
in such cases, Rule 8(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings states, in pertinent part, that

       there shall be a rebuttable presumption that the potential psychological harm to the
       child outweighs the necessity of the child’s testimony and the court shall exclude
       this testimony if the potential psychological harm to the child outweighs the
       necessity of the child’s testimony. Further, the court may exclude the child’s
       testimony if (A) the equivalent evidence can be procured through other reasonable
       efforts . . . .

        In this case, it is clear that it was not error to deny petitioner’s request for the children to
testify because the psychological harm of such testimony far outweighed its necessity. Requiring
the children to testify was simply unnecessary in light of the equivalent testimony provided by
various DHHR employees who had discussed the children’s wishes with them in anticipation of
the dispositional hearing. The circuit court specifically found that “[t]he subject children are
fearful of contact with [petitioner],” and that “[petitioner’s] prior contact with the subject children
has contributed to the subject children’s emotional problems.” For these reasons, it is clear that
petitioner was unable to rebut the presumption that the potential psychological harm to the

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children outweighed the necessity of the children’s testimony, especially in light of the equivalent
evidence available.

        Petitioner additionally asserts error in the holding of the dispositional hearing in regard to
the report of his psychological evaluation. As support, petitioner asserts that the psychologist
recommended he receive supervised visitation with his children. However, the Court finds no
error in this regard because the circuit court would not be bound to follow any such
recommendation if made. Further, contrary to petitioner’s argument that the report recommends
that his parental rights not be terminated, the report simply does not contain a recommendation as
to a final disposition in this matter. Specifically, the report recommends that “all visits with
[petitioner’s] children if granted by the courts be supervised” because of his conviction for sex
crimes against minors and his “long standing drug dependence problems.” (emphasis added). As
such, the Court finds no error in the circuit court’s decision to deny petitioner a continuance to
subpoena the psychologist’s testimony or in limiting cross-examination of a DHHR employee as
to the report.

        Finally, 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 abuse or neglect in the near
future. Specifically, the circuit court found that petitioner was “presently unwilling or unable to
adequately care for the subject children’s needs” based upon his incarceration and the fact that
“[petitioner] has participated in at risk behaviors that have endangered the subject children.” 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 includes
one wherein “[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.”
Because petitioner was unable to properly care for the children, the circuit court’s finding is not
error. Based upon this finding, as well as the evidence that terminating petitioner’s parental rights
was necessary for the children’s welfare, the circuit court correctly terminated petitioner’s
parental rights as required by West Virginia Code §49-6-5(a)(6).

        Most importantly, however, we have previously held that “‘[i]n a contest involving the
custody of an infant the welfare of the child is the polar star by which the discretion of the court
will be guided.’ Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221
(1948).” Syl. Pt. 3, In re Frances J.A.S., 213 W.Va. 636, 584 S.E.2d 492 (2003). In this case, it is
clear that the children’s best interests necessitated termination of petitioner’s parental rights,
especially in light of the circuit court’s findings that the children are fearful of contact with
petitioner and that prior contact with the children had contributed to their emotional problems. For
these reasons, the Court finds no error in the termination of petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
March 11, 2013 order is hereby affirmed.



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                                        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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