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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re G.T.

No. 21-0751 (Harrison County 21-JA-12-2)

MEMORANDUM DECISION

Petitioner Father J.W., by counsel Jenna L. Robey, appeals the Circuit Court of Harrison

County’s September 16, 2021, order terminating his parental and custodial rights to G.T.

1 The 

West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick 

Morrisey and Lee Niezgoda, filed a response in support of the circuit court’s order. The guardian 

ad litem, Dreama D. Sinkkanen, filed a response on behalf of the child in support of the circuit 

court’s order. On appeal, petitioner argues that the circuit court erred in terminating his parental 

and custodial rights and denying him post-termination visitation with 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 affirming the circuit court’s order is appropriate under Rule 21 of the 

Rules of Appellate Procedure.

In January of 2021, the DHHR filed an abuse and neglect petition alleging that the mother 

tested positive for amphetamines, opiates, and THC upon admission to the hospital to give birth to 

the child. She also admitted to using fentanyl the day prior to the child’s birth. Medical records 

revealed that the mother had only one prenatal visit. As to petitioner, the DHHR alleged that he 

was the child’s putative father and was incarcerated at the time of removal. According to the 

guardian, petitioner’s incarceration stemmed from convictions for breaking and entering and 

manufacturing/delivery of a controlled substance. The DHHR alleged that petitioner “knew that 

[the mother] was using drugs, [yet] failed to stop [her] use of illegal drugs while pregnant with his 

child.” The DHHR further alleged that petitioner demonstrated the settled purpose to forego his 

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). 

FILED

March 9, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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duties and parental responsibilities to the child. Petitioner thereafter waived his preliminary 

hearing. 

The court held a series of hearings, ultimately culminating in an adjudicatory hearing for 

petitioner in June of 2021. By this point, petitioner had been confirmed as the child’s father. Based 

on the evidence, the court found that petitioner was incarcerated on July 27, 2020, and was 

scheduled to see the Parole Board on July 1, 2021. Petitioner believed he would be granted parole 

and released no later than July 10, 2021. The court noted that petitioner had been incarcerated for 

the entirety of the child’s life. The court further found that petitioner was presently unable to 

provide for the support and maintenance of the child, and was unable to assume the care, custody, 

and control of the child. Accordingly, the court found that petitioner acted in a manner that 

demonstrated a settled purpose to forego the rights, duties, and parental responsibilities to the child 

and had, in fact, abandoned him. The court adjudicated petitioner as a neglectful parent. 

On July 21, 2021, the court held a dispositional hearing, during which the DHHR 

introduced petitioner’s records from the West Virginia Department of Corrections and 

Rehabilitation and presented testimony from a DHHR worker. Petitioner then testified on his own 

behalf, indicating that he believed he would be released from incarceration in November of 2021. 

The court found, however, that petitioner’s records indicated that he was not parole eligible until 

April of 2022 and had a projected discharge date of 2028. The court then found that since the 

initiation of the proceedings, petitioner had no contact with the DHHR and had not participated in 

services. The court further found that petitioner had never met the child; never provided him with 

any emotional, physical, or financial support; and had no bond with him. Finding that petitioner 

could be incarcerated for several years beyond disposition, the court concluded that there was no 

reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect 

in the near future. The court further found that termination of petitioner’s parental and custodial 

rights was necessary for the child’s welfare, especially considering the child’s young age, the 

adverse effects petitioner’s behavior had on the child, and the child’s need for permanency and 

stability. The court further denied petitioner post-termination visitation with the child “due to the 

tender age of the infant child and the utter lack of any bond between [petitioner] and the child 

brought about by [petitioner’s] absolute absence from the child’s life since birth.” It is from the 

dispositional order that petitioner appeals.

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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 

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The mother’s parental and custodial rights were also terminated below. The permanency 

plan for the child is adoption in the current foster home. 
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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). 

On appeal, petitioner argues that termination was inappropriate because the court erred in 

finding 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. 

In support, petitioner asserts that he testified that he believed he would be eligible for parole in 

November of 2021 and that he would be compliant with services once released. Critically, 

however, this argument ignores the fact that the DHHR introduced evidence contradicting 

petitioner’s self-serving testimony concerning his possible release from incarceration. As noted 

above, petitioner’s records indicated that he would not be parole eligible until April of 2022 and 

could remain incarcerated until 2028. Ultimately, the court was free to weigh the credibility of 

petitioner’s testimony in conjunction with the DHHR’s probative evidence on the subject of 

petitioner’s potential release, and we decline to disturb its findings on appeal. Michael D.C. v. 

Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997) (“A reviewing court cannot assess 

witness credibility through a record. The trier of fact is uniquely situated to make such 

determinations and this Court is not in a position to, and will not, second guess such 

determinations.”). Further supporting the circuit court’s decision concerning the appropriate 

weight to afford petitioner’s testimony, it is important to note that petitioner informed the court at 

an earlier hearing that he believed he would be released from incarceration in July of 2021, yet he 

remained incarcerated throughout the proceedings. As such, we find no error in the court’s 

determination that there was no reasonable likelihood the conditions of abuse and neglect could 

be substantially corrected in the near future.

Petitioner also argues that the court erred in finding that termination of his parental and 

custodial rights was necessary for the child’s welfare because the child was placed with relatives

and could have remained there indefinitely. We do not find this argument compelling, however, 

as we have explained that “[w]here parental rights have been terminated pursuant to [West Virginia 

Code § 49-4-604], and it is necessary to remove the abused and/or neglected child from his or her 

family, an adoptive home is the preferred permanent out-of-home placement of the child.” Syl. Pt. 

2, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Indeed, on appeal to this court, 

both respondents indicate that the child’s permanency plan is adoption, which could not be 

finalized without termination of petitioner’s rights. Further, as the court found, termination was 

necessary for the child’s welfare because it would provide the one-year-old with stability and 

permanency. We agree, and find no error in this determination. 

Having concluded that the court did not err in making these findings, we also conclude that 

termination of petitioner’s parental and custodial rights was appropriate. Indeed, West Virginia 

Code § 49-4-604(c)(6) permits the termination of parental and custodial rights upon these findings. 

While petitioner believes that the less restrictive disposition set forth in West Virginia Code § 49-
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4-604(c)(5), permitting a court to place a child in a temporary guardianship, would have been more 

appropriate, we do not agree. As this Court has long held, 

“[t]ermination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, [West Virginia 

Code § 49-4-604] . . . may be employed without the use of intervening less 

restrictive alternatives when it is found that there is no reasonable likelihood under 

[West Virginia Code § 49-4-604(d)] . . . that conditions of neglect or abuse can be 

substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 

114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Further, we have explained 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.

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, Syl. Pt. 3. On appeal, petitioner does not allege that 

the circuit court failed to comply with this directive, and our review indicates that the court 

undertook the necessary considerations. As such, we find no error in the court’s termination of 

petitioner’s parental and custodial rights. 

Finally, petitioner argues that the circuit court erred in denying him post-termination 

visitation with the child. However, petitioner provides no evidence in support of this argument and 

does not otherwise challenge the court’s finding that there was an “utter lack of any bond” between 

him and the child. We have previously explained that post-termination visitation is only 

appropriate when there is a close emotional bond between the parent and the child. Syl. Pt. 5, In 

re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995) (directing circuit courts in ruling on posttermination visitation to “consider whether a close emotional bond has been established between 

parent and child”). Because petitioner cannot establish a bond of any kind with the child, we find 

no error in the denial of post-termination visitation. 

For the foregoing reasons, we find no error in the decision of the circuit court, and its 

September 16, 2021, order is hereby affirmed.

Affirmed.

ISSUED: March 9, 2022
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CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice Alan D. Moats sitting by temporary assignment