                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: N.G., J.G., & M.G.                                                            FILED
                                                                                  January 14, 2013
                                                                               RORY L. PERRY II, CLERK
No. 12-0934 (Raleigh County 11-JA-151, 152, & 153)                           SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                                 MEMORANDUM DECISION

        Petitioner Father, by counsel Stephen P. New, appeals the Circuit Court of Raleigh
County’s amended order entered on July 24, 2012, terminating his parental rights to his children.
The guardian ad litem, Wilbert A. Payne, has filed his response on behalf of the children. The West
Virginia Department of Health and Human Resources (“DHHR”), by William Bands, its attorney,
has filed its response.

         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 Revised Rules of Appellate
Procedure.

        This abuse and neglect petition was filed after Petitioner Father was involved in a car
accident in which he was driving under the influence and had the children in the vehicle
unrestrained. The children at the time were ages two, four, and five. Petitioner Father was later
incarcerated for driving under the influence. He failed to appear at any hearing in the matter, even
after being released from incarceration, failed to contact either the DHHR or his attorney, and
failed to have any contact with his children after the accident. He was adjudicated as an abusing
and neglecting father, and the circuit court terminated his parental rights based on his
abandonment of the children.

       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
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        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,
arguing that during most of the proceedings he was incarcerated and, that upon his release, he was
unable to participate in the proceedings due to being homeless and unable to contact his counsel.
Petitioner also argues that the proceedings in this matter were pending for only twelve months and
that he could have completed an improvement period once he “surfaced.” Petitioner also argues
that he should now be granted an improvement period.

        The DHHR argues in response that petitioner refused to participate in this case in any
manner and this constitutes abandonment of his children. The guardian argues that petitioner had
knowledge of the proceedings in this matter and that he chose not to participate in the proceedings.
The guardian also argues that petitioner’s excuse that he was homeless was not a bar to
participation; that he failed to contact his attorney or the DHHR; and that he could have obtained
assistance to contact someone in this matter.

        This Court has held that “‘courts are not required to exhaust every speculative possibility
of parental improvement . . . where it appears that the welfare of the child will be seriously
threatened . . . .’ Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syl. Pt. 4,
in part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon a review of the record, this
Court finds no error in the circuit court’s termination of parental rights. Petitioner made no effort
to contact anyone involved in this matter, including his children. This Court likewise finds no error
in the denial of an improvement period, as there is no evidence that petitioner would now
participate after not participating in this case in any manner for twelve months.

       For the foregoing reasons, we find no error in the decision of the circuit court and the
termination of parental rights is hereby affirmed.

                                                                                              Affirmed.


ISSUED: January 14, 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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