                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS



In Re: T.T. and T.T.                                                                    FILED
                                                                                        April 28, 2014
                                                                                   RORY L. PERRY II, CLERK
No. 13-1147 (Nicholas County 12-JA-27 and 12-JA-28)                              SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA



                                    MEMORANDUM DECISION

        Petitioner Father, by counsel Sarah Campbell, appeals the Circuit Court of Nicholas
County’s October 7, 2013, order denying his “Motion to Transfer Children to [Petitioner]
Father’s Home.” The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel William Jones, filed its response in support of the circuit court’s order. The guardian ad
litem, Linda Garrett, filed a response on behalf of the children that supports the circuit court’s
order. On appeal, Petitioner Father alleges that the circuit court erred in denying him custody of
T.T. and T.T.

        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 decision is appropriate under Rule
21 of the Rules of Appellate Procedure.

       In 2011, the Bureau for Child Support Enforcement (“BCSE”) filed a petition seeking
child support in the Family Court of Nicholas County for T.T. and T.T. Following a final
hearing, the family court ordered Petitioner Father to pay child support in the amount of $709.54
per month.1 Additionally, the family court adopted the mother’s parenting plan, which did not
grant Petitioner Father any custodial or visitation rights with the children.

        In June of 2012, the DHHR filed an abuse and neglect petition against Petitioner Father,
the children’s mother, and the mother’s boyfriend.2 The petition alleged that domestic violence
between their mother and her boyfriend occurred in the presence of the children.3 The next
month, Petitioner Father moved the circuit court to dismiss him from the proceedings because he


       1
         Petitioner Father did not respond to the petition for child support or make an appearance
in the family court proceeding.
       2
           Petitioner Father resided in Louisiana at the time the petition was filed.
       3
        The mother has three older children who are T.T. and T.T.’s step-siblings. The three
older children, while part of the DHHR’s petition before the circuit court, are not subject to this
appeal.
                                                        1


was a non-offending father. In July of 2012, the DHHR amended the abuse and neglect petition
to reflect that Petitioner Father was a non-offending parent.

         After adjudicating the children’s mother as an abusive and/or neglectful parent, the
circuit court reduced Petitioner Father’s monthly child support obligation to $50 per month. The
circuit court further ordered the DHHR to initiate a Regulation 7 Priority Placement Home Study
in accordance with the Interstate Compact on the Placement of Children (“ICPC”), to determine
if Petitioner Father’s home was an appropriate placement for the children. This home study was
approved stating that “[Petitioner Father’s] home met minimal standards.” However, prior to
transferring custody of T.T. and T.T. to Petitioner Father, the circuit court ordered all of the
children to submit to a psychological evaluation to determine their best interests.

        Following the termination of the mother’s parental rights, the circuit court held a
permanency hearing on April 15, 2013. Eric Walls, a supervised psychologist, testified that all
the children have a strong bond with one another. Mr. Walls also testified that separating the
children “would likely be particularly detrimental to the [step-siblings].” Tiffany Garrett, also a
supervised psychologist, testified that it would be “detrimental to [the step-sibling’s]
psychological and emotional welfare to separate the children.”

        Following the permanency hearing, the circuit court determined that additional evidence
was needed regarding the issue of sibling separation and directed the parties to thoroughly brief
the issue. Also, due to a change in Petitioner Father’s living arraignments, the circuit court
directed the DHHR to initiate another ICPC home study of Petitioner Father’s home.

        The circuit court heard additional testimony during the continued hearing on July 2,
2013. This included testimony that Petitioner Father owed $568.74 in child support arrears, that
Petitioner Father has an active child protective services (“CPS”) case in Louisiana, that Petitioner
Father’s ex-fiancé was the primary caretaker of the children when they visited with him, and that
the children have lived with their maternal grandmother and step-siblings for more than one year.

        The second ICPC home study denied Petitioner Father placement of the children. The
report states that Petitioner Father’s home only has two bedrooms, with one adult and two
children currently residing in the home. Furthermore, Petitioner Father admitted that he has
failed to address the special needs of the children currently in the home, and the Louisiana
Department of Children and Family Services is concerned that the addition of these children,
who both have special needs, would strain the family. Following oral argument, the circuit court
denied Petitioner Father’s “Motion to Transfer Children to [Petitioner] Father’s Home.” It is
from this order that Petitioner Father now 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

                                                     2


       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 Father argues that the circuit court erred in denying him custody of
T.T. and T.T. in light of our holding in Honaker v. Burnside, 182 W.Va. 448, 388 S.E.2d 322
(1989). Petitioner Father argues that it is in the best interest of the children that he be granted
custody because he is a non-offending father and his rights to the custody of his children are
paramount to those of any other person.

       Petitioner Father’s reliance on Honaker is misplaced. In Syllabus Point 1 of Honaker this
Court reiterated that

              “[a] parent has the natural right to the custody of his or her infant child
       and, unless the parent is an unfit person because of misconduct, neglect,
       immorality, abandonment or other dereliction of duty, or has waived such right, or
       by agreement or otherwise has transferred, relinquished or surrendered such
       custody, the right of the parent to the custody of his or her infant child will be
       recognized and enforced by the courts.” Syl. Pt. Whiteman v. Robinson, 145
       W.Va. 685, 116 S.E.2d 691 (1960).

        Upon our review, the Court finds no error in the circuit court’s order denying Petitioner
Father custody of the subject children. The evidence before the circuit court established that
Petitioner Father was an unfit parent due to the dereliction of his parental duties. Petitioner
Father failed to regularly visit with his children, owes $568.74 in child support arrears, and does
not have a strong bond with either child. Furthermore, the circuit court heard testimony that
Petitioner Father has an active CPS case in Louisiana. The circuit court also heard testimony that
Petitioner Father allegedly engaged in domestic violence, abused alcohol, and used corporal
punishment. Additionally, the Louisiana Department of Children and Family Services did not
recommend placement of T.T. and T.T. with Petitioner Father. “As we said in 1925, ‘we must
not lose sight of the rule that obtains in most jurisdictions at the present day, that the welfare of
the child is to be regarded more than the technical legal rights of the parent.’” Brooke B. v. Ray
C. II, 230 W.Va. 355, 362, 738 S.E.2d 21, 28 (2013) (quoting Conner v. Harris, 100 W.Va. 313,
317, 130 S.E. 281, 283 (1925)). For these reasons, the circuit court did not err in finding that it
was in the children’s best interest to deny Petitioner Father placement of T.T and T.T.

      For the foregoing reasons, we find no error in the decision of the circuit court and the
October 7, 2013, order is hereby affirmed.



                                                     3


                                       Affirmed.

ISSUED: April 28, 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




                                 4


