                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: T.M.                                                                       FILED
                                                                                May 22, 2017
                                                                                RORY L. PERRY II, CLERK
No. 16-0820 (Kanawha County 15-JA-123)                                        SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Father J.M., by counsel Matthew A. Victor, appeals the Circuit Court of
Kanawha County’s August 15, 2016, order terminating his parental rights to T.M.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. The guardian ad litem (“guardian”), Jason S.
Lord, filed a response on behalf of the child also in support of the circuit court’s order. On
appeal, petitioner 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 May of 2015, the DHHR filed an abuse and neglect petition alleging that the mother
left the child, then four years old, without proper supervision in a partially burned mobile home
filled with dangerous debris. Petitioner was initially listed as a non-offending parent. Also in
May of 2015, the circuit court held a preliminary hearing wherein petitioner advised the circuit
court that he was incarcerated and anticipated he would be released from incarceration in June of
2015. He also indicated that he was willing to participate in reunification services upon his
release. The circuit court ordered that petitioner “avail himself upon his release of supervised
visitation with his child, and random drug screens.” In December of 2015, the DHHR filed an
amended petition wherein it alleged that petitioner did not contact the DHHR regarding
reunification services after he was released from incarceration in June of 2015. According to the
amended petition, petitioner was reincarcerated in October of 2015. The amended petition also
alleged that petitioner failed to provide his child with the “necessary food, clothing, supervision,
and housing at times since the birth of the [child].” The amended petition further alleged that

       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).


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petitioner failed to provide the child with financial support and this failure placed the child at risk
of harm.

         In March of 2016, the circuit court held an adjudicatory hearing wherein petitioner
testified that he had been incarcerated since October of 2015 on a criminal charge. He also
testified that he was previously released from incarceration in June of 2015, but did not know
how to “get in touch with the caseworker” and was not “allowed to talk to his child.” Petitioner
orally requested a post-adjudicatory improvement period. A DHHR worker testified that
petitioner never paid child support for the child or provided her with any other form of support.
The worker also testified that petitioner failed to contact the DHHR to avail himself of
reunification services as previously ordered. At the conclusion of the hearing, the circuit court
adjudicated petitioner as an abusing parent and found that he “failed to support his child
financially and emotionally.” The circuit court also denied petitioner’s request for a post­
adjudicatory improvement period.

        In May of 2016, the circuit court held a dispositional hearing. A DHHR worker testified
that the DHHR was seeking termination of petitioner’s parental rights because he failed to
contact the DHHR or participate in services. The worker also testified that he had not supported
the child or “prepared himself to take care of her.” Petitioner did not testify but orally requested a
post-dispositional improvement period. At the conclusion of the hearing, the circuit court found
that petitioner failed to avail himself of reunification services and that he did not have contact
“with his child, nor the [DHHR], during his times of freedom.” The circuit court also found that
there was no reasonable likelihood petitioner could substantially correct the conditions of abuse
and neglect, terminated his parental rights to the child, and denied his motion for a post-
dispositional improvement period.2 It is from that August 15, 2016, 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).



       2
        Petitioner’s parental rights to T.M. were terminated below. The parental rights of T.M.’s
mother, V.C., were terminated in a separate proceeding. According to the guardian, the child was
placed with her maternal great-grandmother and the permanency plan is adoption in the home.
                                                  2


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.

        On appeal, petitioner argues that the circuit court erroneously terminated his parental
rights based solely on his incarceration at the time of the dispositional hearing. This is not the
case. With regard to incarceration, we have explained that incarceration may support the
termination of parental rights based on the analysis of a series of factors. See Cecil T., 228 W.Va.
at 91, 717 S.E.2d at 875 (holding that “[a]lthough we have not adopted a per se rule regarding
the impact incarceration has on a termination of parental rights decision, we have likewise not
said that the facts surrounding a parent’s incarceration may never form the basis for terminating
parental rights.”). Further, we have held that

                [w]hen no factors and circumstances other than incarceration are raised at
        a disposition hearing in a child abuse and neglect proceeding with regard to a
        parent’s ability to remedy the condition of abuse and neglect in the near future,
        the circuit court shall evaluate whether the best interests of a child are served by
        terminating the rights of the biological parent in light of the evidence before it.
        This would necessarily include but not be limited to consideration of the nature of
        the offense for which the parent is incarcerated, the terms of the confinement, and
        the length of the incarceration in light of the abused or neglected child’s best
        interests and paramount need for permanency, security, stability and continuity.

Id. at 91, 717 S.E.2d at 875, Syl. Pt. 3.

        In the present case, the circuit court was free to consider petitioner’s incarceration as a
basis for the termination of his parental rights. However, contrary to petitioner’s argument on
appeal, the circuit court based its ruling on several factors in addition to petitioner’s
incarceration. Prior to his termination, petitioner took no steps to contact the DHHR or begin
reunification services while he was free from incarceration. Petitioner also had a long history of
not supporting the child and reincarceration, none of which had been remedied since the filing of
the amended petition. 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 include 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[.]” We have also held
that “[t]ermination . . . may be employed without the use of intervening less restrictive
alternatives when it is found that there is no reasonable likelihood . . . that conditions of neglect
or abuse can be substantially corrected.” Syl. Pt. 7, in part, In re Katie S., 198 W.Va. at 89, 479
S.E.2d at 600 (1996). Beyond his incarceration, the circuit court based termination upon
petitioner’s failure to avail himself of reunification services or to support the child. Given the
circumstances presented, there was no reasonable likelihood that the conditions of abuse and
neglect could be substantially corrected in the near future.

        Moreover, pursuant to West Virginia Code § 49-4-604(6), circuit courts are directed to
terminate parental rights upon findings that there is no reasonable likelihood the conditions of
abuse and neglect can be substantially corrected in the near future and when necessary for the
child’s welfare. Furthermore, the child requires stability and permanency. Thus, as the circuit

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court also found, termination of petitioner’s parental rights was necessary for the child’s well­
being. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate
parental rights upon such findings. For these reasons, we find no error in the circuit court’s order
terminating petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 15, 2016, order is hereby affirmed.

                                                                                         Affirmed.

ISSUED: May 22, 2017


CONCURRED IN BY:

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




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