                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS



In Re: A.J.                                                                      FILED
                                                                                 May 24, 2013
No. 13-0074 (Braxton County 12-JA-30)                                       RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA


                                MEMORANDUM DECISION

       Petitioner Father, who is the former stepfather to the subject child, filed this appeal, by
counsel Daniel Grindo. This appeal arises from the Circuit Court of Braxton County, which
adjudicated petitioner as a neglectful parent by order entered on December 21, 2012. The
guardian ad litem for the child, David Karickhoff, has filed a response supporting the circuit
court’s order. The Department of Health and Human Resources (“DHHR”), by its attorney
Angela Alexander Walters, 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 August of 2012, the DHHR filed the underlying abuse and neglect petition after
neighboring campers reported hearing petitioner repeatedly beating the subject child at the
family’s campsite. The child’s mother separated and filed for divorce from petitioner shortly
after the camping incident. At the adjudicatory hearing in September of 2012, the circuit court
found that petitioner’s form of punishment made him an abusive and neglectful parent. The
circuit court also found at the adjudicatory hearing that the child’s mother was a non-abusing
parent and returned the child to her. Finding permanency for the child achieved, the circuit court
dismissed this case. Petitioner appeals the circuit court’s adjudicatory order.

         Petitioner argues two assignments of error. First, he argues that the circuit court’s
findings of neglect in its adjudicatory order were not supported by the evidence. He asserts that
the testimony provided at the adjudicatory hearing was inconsistent; he argues, for instance, that
the child’s mother indicated that the beating occurred inside of the tent, whereas the child
testified that he was beaten outside of the tent. Second, petitioner argues that the circuit court
erred by not proceeding to the dispositional phase of abuse and neglect proceedings, as provided
by Rule 32(a) of the Rules of Procedure for Child Abuse and Neglect. Rather, the circuit court
dismissed the case without proceeding to disposition and, therefore, denied petitioner the
opportunity to seek an improvement period or to argue for an appropriate parenting plan with the
child.




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        In response, the child’s guardian ad litem and the DHHR argue that the circuit court did
not err or abuse its discretion in this case. Respondents argue that the circuit court properly heard
testimony from various witnesses before making its adjudicatory findings on the record and in its
adjudicatory order. Respondents further assert that, more importantly, the circuit court found that
the child achieved permanency with his return to his non-offending biological mother. The
guardian ad litem highlights that Rule 2 of the Rules of Procedure for Child Abuse and Neglect
directs that the purpose behind these rules is to “achieve safe, stable, secure permanent homes for
abuse and/or neglect children and fairness to all litigants.” The child’s guardian ad litem argues
that, with the child doing well with his mother, any further hearings in this matter are moot.

       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 or abuse of discretion in the circuit court’s
adjudication of petitioner and subsequent dismissal of this case. We find that the circuit court
was presented with sufficient evidence upon which it based findings of abuse and neglect. At the
same hearing, the circuit court further found that the child could safely return to his biological
mother who had separated herself from petitioner. The circuit court did not act incongruently
against the purpose and objectives behind the Rules of Procedure for Child Abuse and Neglect
and any further proceedings in this matter are unnecessary based on petitioner no longer being in
the subject child’s life.

       For the foregoing reasons, we affirm.


                                                                                          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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