1 

STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS

In Re: P.H.-1, P.H.-2, and H.H. 

No. 13-0613 (Wood County 11-JA-01, 11-JA-02, and 11-JA-03)

MEMORANDUM DECISION 

 Petitioner Father filed this appeal, by counsel Ernest M. Douglass, from the Circuit Court 

of Wood County, which terminated his parental rights to the subject children1

 by order entered 

on May 13, 2013. The guardian ad litem for the children, James M. Bradley Jr, filed a response 

supporting the circuit court’s order. The Department of Health and Human Resources 

(“DHHR”), by its attorney Lee A. Niezgoda, also filed a response in support of the circuit court’s 

order. In response to the guardian ad litem and the DHHR, petitioner filed a reply. 

 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. 

 In January of 2011, the DHHR filed the abuse and neglect petition that initiated the 

instant case. The petition alleged incidents of domestic violence at home and discussed 

petitioner’s issues with substance abuse. One of the domestic violence incidents included an 

episode in 2009 for which petitioner was charged with two counts of battery against his exgirlfriend’s son and another individual, and at which the subject children were present in the 

home. Petitioner waived his rights to a preliminary hearing and, at adjudication, entered 

stipulations that (1) there was an episode of domestic violence in the home in the presence of the 

children, and (2) that petitioner has an alcohol abuse problem that has affected his ability to 

properly parent and supervise his children. The circuit court granted petitioner a postadjudicatory improvement period directed with terms and conditions and, in late 2011, it 

extended petitioner’s improvement period. Despite this extension, petitioner did not fully 

participate with services, maintained minimal contact with the children, and was charged with 

aggravated DUI (driving under the influence) in January of 2012. Following the dispositional 

hearing in July of 2012, the circuit court terminated petitioner’s parental rights, but allowed 

visitation with P.H.-1 and P.H.-2. From this termination order, petitioner now appeals. 

The Court has previously established the following standard of review: 

 

1 Because two of the children in this case have the same initials, we have distinguished each of 

them using numbers 1 and 2 after their initials in this Memorandum Decision. The circuit court 

case numbers also serve to distinguish each child. 

FILED 

October 21, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
2 

“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). 

 Petitioner claims the circuit court erred in three ways: (1) termination was not necessary 

for the children’s welfare because permanency was achieved through their placements with their 

respective mothers; (2) petitioner substantially completed his improvement period and corrected 

the conditions that led to the children’s neglect; and (3) the circuit court erred by accepting 

petitioner’s stipulation to neglect when the circuit court failed to adequately examine him, 

pursuant to Rule 26 of the West Virginia Rules for Child Abuse and Neglect Proceedings, to 

determine if he understood the content and consequences of the stipulation. 

 Upon our review of the record, we find no error or abuse of discretion by the circuit 

court regarding the issues raised by petitioner. First, the record supports the circuit court’s 

decision to terminate petitioner’s parental rights despite the fact that the children have achieved 

permanency. “‘Although parents have substantial rights that must be protected, the primary goal 

in cases involving abuse and neglect, as in all family law matters, must be the health and welfare 

of the children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 2, In re 

Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013). The children’s guardian ad litem asserts that, 

despite the circuit court’s permission for petitioner to visit with P.H.-1 and P.H.-2 after 

termination, petitioner has not contacted the children in over a year, nor have the children 

contacted him with a desire for visitation. Our review of the record further provides that, prior to 

termination, petitioner had not been in contact with the children for over one year. The guardian 

ad litem’s response on appeal provides that the subject children are thriving in their respective 

mothers’ homes. Petitioner has failed to articulate how preserving his parental rights to the 

children would promote their best interests. 

Second, the record supports the circuit court’s basis for termination on petitioner’s failure 

to substantially comply with his improvement period. West Virginia Code § 49-6-12(d) provides 

that, “When any improvement period is granted to a respondent pursuant to the provisions of this 

section, the respondent [parent] shall be responsible for the initiation and completion of all terms 

of the improvement period . . . .” Further, West Virginia Code § 49-6-5(b)(3) provides that a 

respondent parent’s failure to follow through with a reasonable family case plan warrants 
3 

circumstances in which there is no reasonable likelihood that conditions of neglect or abuse can 

be substantially corrected. After previously extending petitioner’s improvement period, the 

circuit court made clear and thorough findings at disposition that petitioner failed to follow the 

case plan and that his absence from his children’s lives had a negative impact. Petitioner’s failure 

to complete his improvement period was demonstrated by his arrest for aggravated DUI and his 

failure to attend therapy and Alcoholics Anonymous and Narcotics Anonymous meetings. Our 

review of the dispositional hearing transcript also reflects that petitioner has not taken full 

responsibility for his issues, has failed to pay ordered child support, and has failed to complete 

directed services as part of his improvement period. 

Finally, we find no error in the circuit court’s acceptance of petitioner’s stipulation to 

neglect at adjudication. Rule 26 of the West Virginia Rules of Procedure for Abuse and Neglect 

Proceedings outlines the procedure under which a respondent parent must voluntarily enter 

stipulations to abuse and/or neglect.2

 The record includes copies of petitioner’s written 

stipulation to neglect, the circuit court’s adjudicatory order that entered petitioner’s stipulation, 

and a copy of the hearing transcript at which petitioner orally entered his stipulations. All three 

documents reflect petitioner’s comprehension of his stipulation to neglect. For instance, the 

transcript includes an assertion by petitioner’s attorney that he and petitioner discussed 

petitioner’s right to have a full hearing concerning the petition’s allegations and that petitioner 

agreed to stipulate to neglect. The transcript reflects that the circuit court determined petitioner 

understood the content and consequences of his decision to stipulate to neglect. We find that the 

circuit court satisfied the requirements of Rule 26. 

Having reviewed of the record and the issues petitioner raises on appeal, we find that the 

circuit court’s findings support its conclusions that there was no reasonable likelihood to believe 

that the conditions of abuse and neglect could be substantially corrected in the near future, and 

that the 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 such findings. 

 For the foregoing reasons, we affirm. 

 

 

2

 Rule 26 provides, in part: “(a) Required information. – Any stipulated or uncontested 

adjudication shall include the following information: (1) Agreed upon facts supporting court 

involvement regarding the respondent’s(s’) problems, conduct, or condition; and (2) A statement 

of respondent’s(s’) problems or deficiencies to be addressed at the final disposition.” Subsection 

(b) provides the following: 

Voluntariness of consent. – Before accepting a stipulated or uncontested 

adjudication, the court shall determine that the parties understand the content and 

consequences of the admission or stipulation, the parties voluntarily consent, and 

that the stipulation or uncontested adjudication meets the purposes of these rules 

and controlling statute and is in the best interests of the child. 
4 

 Affirmed. 

ISSUED: October 21, 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