                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS
                                                                                  FILED
In Re: E.D.                                                                     March 16, 2015
                                                                             RORY L. PERRY II, CLERK
No. 14-1072 (Jackson County 13-JA-39)                                      SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Father, by counsel Keisha May, appeals the Circuit Court of Jackson County’s
September 19, 2014, order terminating his parental rights to seven-year-old E.D. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda,
filed its response in support of the circuit court’s order. The guardian ad litem (“guardian”),
Erica Brannon Gunn, filed a response on behalf of the child that supports the circuit court’s
order. On appeal, Petitioner Father argues that the circuit court erred in terminating his parental
rights.

        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 January of 2013, the DHHR filed an abuse and neglect proceeding against petitioner
alleging that he failed to provide the child with proper food, clothing, shelter, supervision,
medical care, or education. The petition also alleged that petitioner was arrested for
manufacturing methamphetamine. Further, petitioner admitted to a history of substance abuse. In
August of 2013, the DHHR filed an amended petition that alleged that petitioner failed to
provide E.D. with emotional and financial support and had not consistently seen E.D. for an
extended period of time.

         The circuit court held an adjudicatory hearing in September of 2013, during which
petitioner admitted that his substance abuse impaired his parenting ability and that he failed to
provide financial and emotional support to E.D. Accordingly, the circuit court adjudicated
petitioner as an “abusive and neglectful” parent. The following month, the circuit court granted
petitioner a post-adjudicatory improvement period. The terms required that petitioner submit to a
psychological and substance abuse evaluation, participate in parenting services and adult life
skills classes, attend Alcohol Anonymous/Narcotics Anonymous meetings, attend individualized
therapy, abstain from alcohol and drugs, and maintain contact with the DHHR.

        In November of 2013, the circuit court sentenced petitioner to a term of incarceration of
one to five years for conspiracy related to his arrest for manufacturing methamphetamines. The
circuit court suspended petitioner’s sentence and placed him on home incarceration. In January
of 2014, petitioner tested positive for Suboxone and marijuana. By order entered January 30,

                                                1
2014, the circuit court revoked petitioner’s home incarceration and imposed the previously
suspended sentence of one to five years in prison.

        In May of 2014, the DHHR filed a motion to revoke petitioner’s improvement period and
to terminate his parental rights. Thereafter, the circuit court held a series of dispositional hearings
to take evidence on the DHHR’s motion. A Child Protective Services worker testified that
petitioner failed to comply with the terms of his improvement period. The worker also testified
that petitioner failed to contact the DHHR for two months while he was on home incarceration.
Petitioner testified that he does not have a home for E.D., that he did not fully comply with the
terms of his improvement period, and that he has not seen E.D. for eighteen months. Importantly,
despite knowing that he was required to maintain contact with the DHHR as part of his
improvement period, petitioner testified that he did not contact the DHHR or participate in any
services for two months while he was on home incarceration. Petitioner also testified that he
tested positive for Suboxone and marijuana while released on home incarceration. Finally,
petitioner testified that he has three other children with whom he has no contact. After
considering the evidence, the circuit court terminated petitioner’s parental rights. It is from this
order that petitioner 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
       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.

        Petitioner argues that the circuit court abused its discretion in terminating his parental
rights because the evidence upon which the termination was based was not clear and convincing.
Petitioner also asserts that the circuit court based its termination of his parental rights upon his
failure to complete his improvement period and his incarceration. We disagree. “[W]hile an
individual’s incarceration may be a criterion in determining whether his/her parental rights
should be terminated, other factors and circumstances impacting his/her ability to remedy the
conditions of abuse and neglect should also be considered when making such a disposition.” In
re Emily, 208 W.Va. 325, 559, 540 S.E.2d 542, 342 (2000). The evidence introduced during the
multiple dispositional hearings supports termination. That evidence was not based on petitioner’s


                                                  2
incarceration. At these hearings, the circuit court heard testimony that petitioner failed to comply
with the terms of his improvement period. Further, petitioner admitted that he did not fully
comply with the terms of his improvement period, has not seen E.D. for eighteen months, failed
to maintain contact with the DHHR, failed to participate in services for two months while he was
on home incarceration, tested positive for Suboxone and marijuana, and does not have contact
with three other children.

        Pursuant to West Virginia Code § 49-6-5(b)(3), a situation in which there is no
reasonable likelihood that the parent can substantially correct the conditions of abuse and neglect
includes one where “[t]he abusing parent . . . [has] not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts . . . designed to reduce or prevent the
abuse or neglect of the child . . . .” As noted above, it is clear that the circuit court had ample
evidence upon which to find that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect and that termination of his parental
rights was necessary for the child’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6),
circuit courts are directed to terminate parental rights upon these findings.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
September 19, 2014, order is hereby affirmed.

                                                                                         Affirmed.

ISSUED: March 16, 2015

CONCURRED IN BY:

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




                                                 3
