STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In re: I.N. and N.N. FILED 

November 21, 2016 No. 16-0394 (Mingo County 15-JA-61 & 15-JA-62) RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

MEMORANDUM DECISION 

Petitioner B.H., by counsel Susan J. Van Zant, appeals the Circuit Court of Mingo 

County’s April 8, 2016, order terminating petitioner’s custodial rights to sixteen-year-old I.N. 

and ten-year-old N.N.1 The West Virginia Department of Health and Human Resources 

(“DHHR”), by counsel S.L. Evans, filed its response in support of the circuit court’s order. The 

guardian ad litem (“guardian”), Diana Carter Wiedel, filed a response on behalf of the children 

also in support of the circuit court’s order. On appeal, petitioner argues that the circuit court 

erred in terminating his custodial rights to the children.2 

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 

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). 

2

According to the record, the circuit court’s dispositional order terminated petitioner’s 

“parental rights” to the children. However, petitioner is not the biological father of either child. 

Both of the children’s biological fathers had their parental rights terminated in previous abuse 

and neglect proceedings. To be clear, petitioner does not meet the definition of a parent under the 

West Virginia Code. Pursuant to West Virginia Code § 48-1-232, a “ ‘legal parent’ means an 

individual defined as a parent, by law, on the basis of biological relationship, presumed 

biological relationship, legal adoption or other recognized grounds.” Additionally, we have held 

that “[t]he phrase ‘other recognized grounds’ refers to those individuals or entities who have 

been formally accorded parental status or the functional equivalent thereof by way of statute or 

judicial decree . . . .” Syl. Pt. 1, In re Clifford K, 217 W.Va. 625, 619 S.E.2d 138 (2005). It is 

clear that petitioner was the custodian of the children. West Virginia Code § 49-1-204 provides 

that a “‘[c]ustodian’ means a person who has or shares actual physical possession or care and 

custody of a child, regardless of whether that person has been granted custody of the child by any 

contract or agreement.” Inasmuch as the context of the circuit court order unequivocally conveys 

that the circuit court found that it was in the children’s best interest for the circuit court to 

terminate petitioner’s custodial rights, and inasmuch as petitioner has not objected to the 

misnomer, we will refer to petitioner’s rights as “custodial rights” throughout the memorandum 

decision. We affirm the circuit court’s April 8, 2016, dispositional order in full. 

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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 September of 2015, the DHHR filed an abuse and neglect petition against petitioner 

and the mother alleging that they engaged in domestic violence in the children’s presence. The 

petition contained additional allegations that the mother abused illegal drugs, and had a history 

of substance abuse that affected her ability to parent, and that the children were not properly fed 

or clothed. Subsequently, the circuit court held a preliminary hearing wherein the mother 

stipulated to the allegations in the petition. A DHHR worker testified that petitioner reported that 

he and the mother engaged in domestic violence in the children’s presence. According to the 

testimony, the mother repeatedly hit petitioner with her fist. The DHHR worker also testified that 

petitioner reported that the mother abused drugs and that he left the children in her care. Based 

upon the testimony presented, the circuit court removed the children from the home and found 

that the conditions in the home constituted abuse. The circuit court ordered that the children 

remain in the DHHR’s temporary custody and scheduled the matter for an adjudicatory hearing. 

In December of 2015, the circuit court held an adjudicatory hearing wherein it 

determined, based on the previous testimony, that petitioner and the mother abused the children.3 

The circuit court found that petitioner and the mother engaged in domestic violence in the 

children’s presence. The circuit court also found that petitioner failed to protect and supervise the 

children. Petitioner moved for and was granted a post-adjudicatory improvement period. The 

terms of his improvement period included supervised visitation with the children. 

In January of 2016, the circuit court held a status hearing wherein petitioner moved for 

the reinstatement of his “regular contact” with N.N. However, the DHHR’s counsel advised the 

circuit court that N.N. was admitted into Highland Hospital and alleged that petitioner sexually 

abused her. The DHHR also advised the circuit court that I.N. alleged that petitioner physically 

abused her. The DHHR further advised the circuit court that the children alleged that petitioner 

and the mother did not provide them with proper food and clothing. The DHHR indicated that it 

did not provide petitioner with services as a result of the allegations. Petitioner advised the 

circuit court that he was willing to take a polygraph examination in regard to the allegations 

against him. The circuit court determined that, if petitioner “successfully [completed] the 

polygraph examination and the guardian deemed it appropriate,” he could receive services and 

visitation. At a second status hearing in February of 2016, the DHHR advised the circuit court 

that petitioner failed the polygraph examination. As a result, the circuit court ordered that 

petitioner have no further contact with the children based on the above allegations of abuse. 

In March of 2016, the circuit court held a dispositional hearing wherein a DHHR worker 

again testified that the children alleged, in a DHHR interview, that petitioner abused them. The 

DHHR recommended that the circuit court terminate petitioner’s custodial rights based upon the 

3

The record indicates that the preliminary hearing order incorrectly referenced the 

upcoming hearing as the “dispositional hearing.” The typographical error was corrected on the 

record and the hearing proceeded correctly as the adjudicatory hearing. 

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allegations of physical and sexual abuse. Petitioner testified that he never abused the children, he 

and N.N. had a strong bond, and I.N. did not “get along” with him. He also testified that it was in 

the children’s best interests to be placed with him. Petitioner admitted that he knew that the 

mother abused drugs for several years, that it affected her ability to parent, and that he did 

nothing to protect the children. He also admitted that he and the mother engaged in domestic 

violence in the children’s presence and that the children were not properly fed or clothed. By 

order entered on April 8, 2016, the circuit court terminated petitioner’s custodial rights to the 

children. In doing so, it found that petitioner failed to properly clothe and feed the children and 

he knew that the mother abused drugs and did not properly parent the children. The circuit court 

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

be substantially corrected in the near future. It also found that it was in the children’s best 

interest to terminate petitioner’s custodial rights. It is from this order that petitioner now 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). 

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 custodial rights because he corrected the conditions that 

led to the abuse and it was in N.N.’s best interest to be placed with him.4 He also argues that the 

circuit court erred in terminating his custodial rights to N.N. because it was in the child’s best 

interest to be placed with him. In support of his contention, petitioner claims that he lived with 

the children for eight years, had a strong bond with N.N., and he was the only “father-figure” she 

4

Much of petitioner’s argument in support of his appeal is based upon his contention that 

he is N.N’s “psychological parent.” We have previously held that “[a] psychological parent is a 

person who, on a continuing day-to-day basis, through interaction, companionship, interplay, and 

mutuality, fulfills a child’s psychological and physical needs for a parent and provides for the 

child’s emotional and financial support . . . .” Syl. Pt. 3, In re Clifford K, 217 W.Va. 625, 619 

S.E.2d 138 (2005). The record on appeal contains no motion for petitioner to be recognized as a 

psychological or any order granting petitioner such a status. Even if the circuit court determined 

that petitioner was deemed a psychological parent the circuit court could have terminated his 

psychological parental rights based upon the evidence presented. Therefore, it is not necessary 

for this Court to address his argument to affirm the circuit court’s April 8, 2016 order. 

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ever knew. Petitioner contends that it was, therefore, in the child’s best interests to remain in his 

custody. We do not agree. 

Following a review of the record on appeal, it is clear that it was not in the child’s best 

interests to return to petitioner’s custody. At the outset, the circuit court attempted to address 

petitioner’s custodial rights and granted him a post-adjudicatory improvement period pursuant to 

West Virginia Code § 49-4-610(2). He was granted supervised visitation with N.N. because of 

the professed bond with that child. The visitation was interrupted when N.N. was hospitalized at 

Highland Hospital. While in treatment for mental health issues, N.N. disclosed that petitioner 

sexually abused her. Petitioner also admitted that he engaged in domestic violence with the 

mother in the children’s presence, knew that the mother abused drugs, and did not protect the 

children from the mother’s drug abuse. The record on appeal reflects that this was the second 

abuse and neglect proceeding involving petitioner and the mother and that he was aware for 

several years that the mother abused drugs. Based upon the evidence, the circuit court found that 

there was no reasonable likelihood that petitioner could substantially correct the conditions of 

abuse and neglect in the near future. Pursuant to West Virginia Code § 49-4-604(c)(3), there is 

no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected 

when 

[t]he abusing parent or parents have not responded to or followed through with a 

reasonable family case plan or other rehabilitative efforts of social, medical, 

mental health or other rehabilitative agencies designed to reduce or prevent the 

abuse or neglect of the child, as evidenced by the continuation or insubstantial 

diminution of conditions which threatened the health, welfare or life of the child. 

It is clear that the conditions of abuse and neglect not only persisted across two 

proceedings, but actually worsened. Further, the circuit court also found termination was in the 

best interests of the children based upon petitioner’s unwillingness to correct the issues of abuse 

and neglect. Thus, considering the evidence before it, the circuit court correctly terminated 

petitioner’s custodial rights upon its finding that that there was no reasonable likelihood that he 

could substantially correct the conditions of abuse and neglect and that termination was in the 

children’s best interests. In accordance with West Virginia Code § 49-4-604(b)(6), upon such 

findings, circuit courts are directed to terminate custodial rights. 

For the foregoing reasons, we find no error in the circuit court’s April 8, 2016, order, and 

we hereby affirm the same. 

Affirmed. 

ISSUED: November 21, 2016 

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CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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