                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


                                                                                   FILED
In Re: L.Y. and T.M.                                                               May 24, 2013
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
No. 13-0024 (Webster County 12-JA-34 and 35)                                    OF WEST VIRGINIA




                                 MEMORANDUM DECISION

        Petitioner Father filed this appeal, by counsel Steven B. Nanners, from the Circuit Court
of Webster County, which terminated his parental rights by order entered on December 11, 2012.
The guardian ad litem for the children, Michael Asbury Jr., has filed a response supporting the
circuit court’s order. The Department of Health and Human Resources (“DHHR”), by its
attorney Angela Alexander Walters, has also filed a response in support of the circuit court’s
order.

       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 June of 2012, the DHHR filed the underlying petition after the children’s parents were
arrested for killing three individuals shot in the family’s front yard. Child L.Y. was present in the
home during these killings while child T.M. was away at summer camp. At adjudication, both
parents stipulated to the events that occurred at the end of June of 2012 that surrounded the
killing of three people in their front yard and the circuit court found the children abused and
neglected. At the dispositional hearing, the children’s caseworker and psychologist testified of
the children’s stress and nightmares subsequent to these events. Following this dispositional
hearing, the circuit court terminated parental rights to both children. Petitioner Father appeals
this order.

        Petitioner’s sole assignment of error is that the circuit court improperly adjudicated
petitioner and, subsequently, terminated his parental rights when the evidence shows that he was
acting in his family’s self-defense. Petitioner argues that he acted in a manner to protect his wife
and L.Y. by having his wife place L.Y. underneath the bed whenever the violence occurred
outside. He further argues that no allegations of bad parenting have been made in this case. In
response, the children’s guardian ad litem and the DHHR contend that the circuit court properly
decided this matter. Both argue that the parents exposed their children to violence, thereby
causing harm to their children’s mental health with no reasonable likelihood that the conditions
of the home could improve in the near future. They highlight that, earlier that day of the killings,
L.Y. was exposed to an altercation between her parents and the three individuals who were later
killed. Further, the bedroom L.Y. was placed in overlooked the front yard and, after the


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shootings occurred, L.Y. observed her parents attempting to hide one of the dead bodies. Further,
respondents argue that the parents have continued to deny responsibility for any wrongdoing
harmful to their children.

       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 adjudication of abuse and
neglect or in its termination of Petitioner Father’s parental rights. We find that the circuit court
did not err in finding that, due to the parents’ exposure of violence to their children in the home,
the children were abused and neglected as defined in West Virginia Code § 49-1-3. A copy of the
adjudicatory order in the appellate record provides petitioner’s stipulations to the gruesome
events that occurred at the residence. With regard to termination, the appellate record provides
that the circuit court contemplated not only petitioner’s incarceration, but also the children’s best
interests and permanency. We find that the circuit court was presented with sufficient evidence
upon which it based findings that there was no reasonable likelihood to believe that conditions of
abuse and neglect could be substantially corrected in the near future, and that termination was
necessary for the children’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit
courts are directed to terminate parental rights upon such findings.

       For the foregoing reasons, we affirm the circuit court’s order terminating petitioner’s
parental rights to the subject children.


                                                                                          Affirmed.




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ISSUED: May 24, 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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