In Re: J.G. Jr. ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In Re: J.G. Jr. FILED
March 12, 2013
No. 12-1053 (Mercer County 11-JA-68) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father’s appeal, by counsel Thomas L. Fuda, arises from the Circuit Court of
Mercer County, wherein his parental, custodial, and guardianship rights to the child were
terminated by order entered on August 13, 2012. The West Virginia Department of Health and
Human Resources (“DHHR”), by counsel William Bands, has filed its response. The guardian ad
litem, John Earl Williams Jr., has filed a response on behalf of the child.
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.
On May 4, 2011, the DHHR filed its initial abuse and neglect petition alleging, among
other things, that the parents neglected the child by virtue of leaving him unsupervised and
subjecting him to uninhabitable living conditions. The parents both stipulated to neglect at the
adjudicatory hearing and were granted post-adjudicatory improvement periods. However, the
DHHR eventually sought termination of parental rights, which the circuit court ordered at the
dispositional hearing. On appeal, petitioner alleges that the circuit court erred in terminating his
parental, custodial, and guardianship rights because the evidence supported choosing a less-
restrictive disposition option. Petitioner argues that because of the child’s special needs and a lack
of a suitable adoptive placement, the circuit court should have terminated only his custodial rights
and allowed petitioner to maintain a relationship with the child.
In response, both the DHHR and the guardian ad litem support termination of petitioner’s
parental, custodial, and guardianship rights. Both respondents argue that the evidence below
established that petitioner never followed through with treatment, counseling, or obtaining
employment, and continued to have issues with domestic violence. According to respondents, this
evidence is sufficient to support termination of petitioner’s parental, custodial, and guardianship
rights.
The Court has previously established the following standard of review:
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“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, custodial, and guardianship rights. The circuit court was presented with sufficient
evidence upon which it found that that there was no reasonable likelihood that the conditions of
abuse and neglect could be substantially corrected in the near future and that termination 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 the
termination of petitioner’s parental, custodial, and guardianship rights is hereby affirmed.
Affirmed.
ISSUED: March 12, 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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