                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS

                                                                                        FILED
In re M.G., J.G.-1, J.G.-2, A.G.-1, and C.G.                                          April 9, 2018
                                                                                    EDYTHE NASH GAISER, CLERK
                                                                                    SUPREME COURT OF APPEALS
No. 17-1020 (Wayne County 16-JA-78, 79, 80, 81, and 85)                                 OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
        Petitioner Father A.G.-2, by counsel Shawn Bartram, appeals the Circuit Court of Wayne
County’s October 20, 2017, order terminating his parental rights to M.G., J.G.-1, J.G.-2, A.G.-1,
and C.G.1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel S.L. Evans, filed a response in support of the circuit court’s order and a supplemental
appendix. The guardian ad litem (“guardian”), Melia Atwell Adkins, 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 upon insufficient evidence that he
failed to correct the conditions of abuse and/or neglect.

        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 June of 2016, the DHHR filed an abuse and neglect petition against petitioner and
         2
A.R. The DHHR alleged that it received two referrals regarding issues with truancy, lice, and
unsanitary home conditions. A seven-day protection plan was implemented and then extended
for forty-eight hours in order to allow petitioner and A.R. to seek treatment for their mental
                                                            
              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). Additionally, because two of the children share the same
initials, we will refer to them as J.G.-1 and J.G.-2, respectively, throughout this memorandum
decision. One of the children and petitioner also share the same initials and so we will refer to
them as A.G.-1 and A.G.-2, respectively, throughout this memorandum decision.
              2
                  A.R. is the mother of A.G.-1 and C.G., who was born during the proceedings.




                                                                   1

 
health issues. Child Protective Services (“CPS”) opened a case at that time in order to provide
services, but ultimately filed the instant petition due to continued concerns. The DHHR also
alleged that petitioner admitted to abusing marijuana, exhibited aggressive behavior, and refused
to return the three oldest children to their mother, J.H.

        The circuit court held an adjudicatory hearing in August of 2016, during which petitioner
stipulated to substance abuse and inappropriate housing for the children. Petitioner tested
positive for cocaine and marijuana at the time of the hearing. The circuit court granted legal
custody of the children to the DHHR, but ordered that physical placement of the children remain
with petitioner and A.R.

        In September of 2016, the circuit court held a dispositional hearing during which it found
that petitioner and A.R. continued to have substance abuse issues and inappropriate housing. As
such, the circuit court found that it was contrary to the best interests of the children to remain in
petitioner’s custody and placed M.G., J.G.-1, and J.G.-2 in foster care, and placed A.G.-1 with
his maternal grandfather. The circuit court granted petitioner a six-month post-adjudicatory
improvement period and ordered that he undergo a psychological evaluation.

        Several review hearings were held throughout the improvement period and petitioner was
described as moderately compliant with the terms and conditions. However, in July of 2017,
petitioner was arrested and charged with maintaining a dwelling for the purpose of selling a
controlled substance. Due to his arrest, petitioner and A.R. were evicted from their home. A.R.
gave birth to C.G., petitioner’s child, in August of 2017, and the DHHR filed a petition
requesting custody of the newborn shortly thereafter. The circuit court held an adjudicatory
hearing in September of 2017 and found that C.G. was neglected based on the ongoing CPS case
and the four older children remaining in the custody of the DHHR, petitioner and A.R.’s eviction
from their home, and petitioner’s arrest. Accordingly, petitioner was adjudicated as an abusing
parent. The circuit court placed C.G. with A.G.-1, in the home of their maternal grandfather.

        In October of 2017, the circuit court held a dispositional hearing. Petitioner failed to
attend but was represented by counsel. The circuit court provided an in-depth overview of the
occurrences and previous findings in the case to date. The circuit court noted that petitioner
participated in services but did not internalize the information taught or correct the circumstances
of abuse or neglect. Petitioner missed several drug screens, tested positive for marijuana on at
least three occasions, and for opiates and amphetamines on one occasion. The circuit court noted
that petitioner ceased attending his mental health treatment and admitted to self-medicating.
Further, petitioner did not interact with the children during his supervised visitation due to
excessive cellphone usage. After the circuit court’s summarization, a DHHR worker testified that
petitioner made no progress in his improvement period, failed to obtain employment, failed to
maintain suitable housing, and discontinued his mental health treatment. After hearing evidence,
the circuit court found that there was no reasonable likelihood that petitioner could correct the
conditions of neglect in the near future and that termination of his parental rights was in the




                                                 2

 
children’s best interests. It is from the October 20, 2017, dispositional order terminating
petitioner’s parental rights that he appeals.3

              The Court has previously established the following standard of review in cases such as
this:

                      “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 erred in terminating his parental rights.
Specifically, petitioner argues that the circuit court erred in finding sufficient evidence to
terminate his parental rights when the DHHR only presented the testimony of one witness at the
dispositional hearing. We disagree.  West Virginia Code § 49-4-604(b)(6) provides that circuit
courts are to terminate parental rights upon findings that there is “no reasonable likelihood that
the conditions of neglect or abuse can be substantially corrected in the near future” and that
termination is necessary for the child’s welfare. Pursuant to West Virginia Code § 49-4-
604(c)(3), a situation in which there is no reasonable likelihood that the conditions of abuse or
neglect can be substantially corrected includes one in which “[t]he abusing parent . . . ha[s] not
responded to or followed through with a reasonable family case plan or other rehabilitative
efforts[.]” 

         Here, the circuit court spent ample time reviewing petitioner’s performance and
reiterating its previous findings on the record during the dispositional hearing. After reviewing
the record and hearing the testimony of the DHHR worker, the circuit court found that sufficient
evidence existed to find that there was no reasonable likelihood that petitioner could correct the
                                                            
              3
        The parental rights of A.R., the mother of A.G.-1 and C.G., were terminated below. The
children were placed with their maternal grandfather and the permanency plan is adoption in that
home. The parental rights of J.H., the mother of M.G., J.G.-1, and J.G.-2, were also terminated
below. The children were placed with a foster family and the permanency plan is adoption in that
home.




                                                               3

 
conditions of abuse and neglect. Petitioner stipulated to abusing and/or neglecting his children
based upon his substance abuse and inadequate housing but did not correct either of these issues,
despite having received substantial services throughout the post-adjudicatory improvement
period. At the time of the dispositional hearing, petitioner was unemployed and homeless due, in
part, to his arrest for attempting to sell controlled substances out of his home and resulting
eviction. Petitioner continued to test positive for controlled substances throughout the
proceedings below and failed to complete his mental health treatment. Therefore, we find that,
based upon its review of the record in its entirety and the testimony of the DHHR worker, the
circuit court did not err in finding that there was no reasonable likelihood that petitioner could
correct the conditions of abuse and/or neglect and that termination was necessary for the
children’s welfare. As mentioned above, circuit courts are to terminate parental rights upon such
findings.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 20, 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
 




                                                4

 
