                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In Re: P.H. & M.H.                                                                FILED
                                                                                 March 31, 2014
                                                                             RORY L. PERRY II, CLERK
No. 13-0718 (Kanawha County 12-JA-285 & 12-JA-286)                         SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA




                                MEMORANDUM DECISION

        Petitioner Father, by counsel D. Adrian Hoosier II, appeals the Circuit Court of Kanawha
County’s order entered on June 25, 2013, terminating his parental rights to his children, P.H., age
3, and M.H., age 7. The West Virginia Department of Health and Human Resources (“DHHR”),
by Michael L. Jackson, its attorney, filed its response. The children’s guardian ad litem, Matthew
A. Victor, filed a response on behalf of the children in support of the circuit court’s order. On
appeal, petitioner argues that the termination was not sufficiently supported by the evidence.

        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 2012, the DHHR filed a petition for abuse and neglect against petitioner
and the children’s mother. The petition alleged that a methamphetamine lab was found in
petitioner’s home, that P.H. was found in the home when the lab was discovered, that petitioner
and the children’s mother also operated a methamphetamine lab in their automobile, and that the
subject children’s parents ingested methamphetamine in the presence of M.H. Petitioner was
arrested and charged with operating a clandestine drug laboratory and child abuse or neglect
creating a risk of injury. The petition further alleged that petitioner had a history of domestic
violence and failed to provide supervision and support to the children, placing them at a risk of
harm. The DHHR later amended the petition to allege that M.H. had thirteen unexcused
absences from school in fall of 2012 and that the children’s mother admitted to caring for the
children while under the influence of methamphetamine. The children were removed to DHHR
custody.

        In April of 2013, at an the adjudicatory hearing, a Child Protective Services (“CPS”)
worker testified that the mother of another of petitioner’s children told her that M.H. and P.H.
visited petitioner’s home on a regular basis, that the subject children’s mother told her that the
children had been in and out of the home on the day the methamphetamine lab was discovered
by law enforcement, and that P.H. was found in a car in the home’s driveway when the lab was
discovered. The children’s mother stipulated to having a drug problem that affected her parenting
and that it resulted in the abuse or neglect of her children. The circuit court found by clear and

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convincing evidence that petitioner abused and neglected the children by exposing them to
methamphetamine labs and other unsafe and unhealthy environments.

        After a dispositional hearing, by order entered June 25, 2013, the circuit court terminated
petitioner’s parental rights, finding that petitioner remained incarcerated, that he had previously
been provided numerous services in a prior abuse and neglect case to address issues of substance
abuse, and that he had failed to demonstrate the capacity to solve his problems of abuse or
neglect. The circuit court concluded there was no reasonable likelihood that the conditions of
abuse or neglect could be substantially corrected in the near future and concluded it was in the
children’s best interests not to return to their parents’ home because their safety could not be
reasonably assured. It is from this order that petitioner appeals.

       This 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).

        On appeal, petitioner argues that the circuit court had no evidence upon which to
adjudicate petitioner as an abusing parent and, ultimately, terminate his parental rights. Petitioner
argues that there was no evidence that any of the children were in the home with meth-making
materials or that he failed to provide for the children’s general welfare. To the contrary, law
enforcement officials testified that they found a methamphetamine lab in petitioner’s home, P.H.
was found in a car in the home’s driveway, and petitioner’s wife stated that the children were in
and out of the house on the day of the drug bust. We hold that these facts constitute a sufficient
basis for finding that petitioner neglected P.H. and M.H. A neglected child is one whose
“physical or mental health is harmed or threatened by a present refusal, failure or inability of the
child’s parent . . . to supply the child with necessary . . . supervision . . . .” W.Va. Code §
49-1-3(11)(A)(i) (2013). Finally, the circuit court correctly found that petitioner failed to
complete the terms of his improvement period due to his incarceration. Based upon the circuit
court’s findings, it was not error to terminate petitioner’s parental rights pursuant to West
Virginia Code § 49-6-5(a)(6). Further, we have previously held that




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       “courts are not required to exhaust every speculative possibility of parental
       improvement . . . where it appears that the welfare of the child will be seriously
       threatened, and this is particularly applicable to children under the age of three
       years who are more susceptible to illness, need consistent close interaction with
       fully committed adults, and are likely to have their emotional and physical
       development retarded by numerous placements.” Syl. Pt. 1, in part, In re R.J.M.,
       164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 4, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

       For the foregoing reasons, we find no error in the circuit court’s decision and the
termination of parental rights is hereby affirmed.

                                                                                      Affirmed.


ISSUED: March 31, 2014


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




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