In Re: Z.G., G.G., A.T. and H.T.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re: Z.G., G.G., A.T., & H.T. FILED
January 14, 2013
RORY L. PERRY II, CLERK
No. 12-0881 (Webster County 12-JA-13, 14, 15 & 16) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father, by counsel Daniel Grindo, appeals the Circuit Court of Webster
County’s order entered on July 28, 2012, terminating his parental rights to his children. The
guardian ad litem, Michael W. Asbury, Jr., 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.
The abuse and neglect petition in this matter was filed after the birth of twins A.T. and
H.T. The petition notes that both Petitioner Father and Respondent Mother have a significant
criminal and drug abuse history. The petition further noted that custody of Petitioner Father’s two
older children was given to the maternal grandparents in January of 2011. Petitioner Father
admitted to the allegations in the petition and was adjudicated as abusive and neglectful. During
the pendency of the case, Petitioner Father was incarcerated based upon parole violations and he
remained incarcerated at disposition. The circuit court terminated his parental rights, finding that
he was addicted to drugs for at least the past ten years, that he had a significant criminal history
based on his drug abuse, and that he had not participated in a drug rehabilitation program.
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
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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).
On appeal, petitioner argues that the circuit court failed to consider the bond between
himself and the children prior to terminating his parental rights. Further, petitioner argues that he
was not properly offered services and states that he was likely to be released from incarceration
prior to the expiration of an improvement period, had one been granted. Finally, petitioner argues
that his termination of parental rights was based in part on not being “required to exhaust every
speculative possibility for rehabilitation,” but the court failed to make a finding that the welfare of
the children would be threatened but for the termination.
The DHHR responds in favor of the termination of parental rights, arguing that
petitioner’s incarceration time is not yet determined. Thus, the DHHR argues that he cannot
participate in any type of improvement period now or in the foreseeable future. The guardian also
responds in favor of the termination of parental rights.
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). This Court finds that the circuit
court was presented with sufficient evidence upon which it could have 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 children’s welfare. Pursuant to West
Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon these
findings. This Court further finds that the circuit court did not base its decision solely on
petitioner’s incarceration, but also noted his significant criminal history and severe drug
addiction.
For the foregoing reasons, the circuit court’s order terminating petitioner’s 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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