1 

### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

In re A.B., S.B., and T.B.

No. 18-0656 (Berkeley County 16-JA-26, 16-JA-27, and 16-JA-28)



### MEMORANDUM DECISION

Petitioner Father C.B., by counsel Jared Adam s, appeals the Circui t Court of Berkeley County’s June 13, 2018, order denying his motion for post-termination visitation with the
children. 1 The West Virginia Department of H ealth and Human Resources (“DHHR”), by counsel Brandolyn N. Felton-Ernest, filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), William Pren tice Young, filed a respons e on behalf of the children in support of the circuit court’s order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying hi m the opportunity to testify in support of his request for post-termination visitation. 2

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21
of the Rules of A ppellate Procedure.

On February 24, 2016, an abuse a nd neglect petition was filed al leging petitioner sexually abused his daughter, A.B. Petiti oner was adjudicated as an abus ing parent and, subsequently, on March 31, 2016, petitioner voluntarily relinquished his parental ri ghts to all three children. Thereafter, petitioner pled guilty to three counts of in cest and one count of first-degree sexual abuse with a victim under the age of twelve. He was sentenced to incarceration for a cumulative sentence of twenty to seventy years and to fi fty years of supervised release under specific
restrictions and conditions.

In January of 2018, petitioner filed a moti on for post-termination visitation and a memorandum in support. The circuit court granted petitioner leave to app ear for a hearing on the

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 Petitioner does not raise any error regarding the voluntary re linquishment of his parental rights to the children. 

### FILED
November 19, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 motion via telephone. On May 14, 2018, the circuit court held a hearing on petitioner’s motion for post-termination visitation. Petitioner’s counsel was unsuccessful in his attempts to reach petitioner by telephone, despite having previously made the appropriate arrangements with the staff at Mt. Olive Correctional Complex. Counsel fo r petitioner moved to continue the hearing to allow petitioner to testify by telephone. However, the guardia n objected and asserted that further
consideration of the motion wa s unnecessary and unwarranted. U pon considering the arguments of counsel, the circuit court f ound that “the nature of the underlying circumstances renders
further evidence on the issue manifes tly unnecessary.” Syl. Pt. 5, in part, In re Marley M . 231 W.Va. 534, 544 745 S.E.2d 572 (2013). The circ uit court found that the underlying circumstances included, but were not limited to the following: (1) petitioner sexually abused his eleven-year-old daughter; (2) peti tioner voluntarily relinquished his parental rights; (3) petitioner pled guilty to criminal incest charges and was sentenced to a minimum of twenty years of incarceration, and at the time of his earliest possible release date all the children will have reached the age of majority; and (4) the only child of appropriate maturity to request visitation with petitioner does not want such visitatio n. The circuit court further found that posttermination visitation was not in the children’s best interests. Ultimately, the circuit court denied petitioner post-termination vis itation in its June 13, 2018, order. 3 It is from this order that petitioner appeals.

The Court has previously establishe d 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 sh all 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. Th ese findings shall not be set aside by a reviewing court unless cl early erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the revi ewing 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 diffe rently, 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, this Court finds no error in the pr oceedings below.

In his sole assignment of erro r on appeal, petitioner argues that the circuit court erred in denying him the opportunity to testify in support of his motion for post-term ination visitation. In

3 The mother’s parental rights were termin ated blow. According to respondents, the permanency plan for A.B. is adoption by her paternal grandfather w ho lives in Oregon. The permanency plan for S.B. and T.B. is adoption by their paternal grandmother who lives in West Virginia.3 support, he contends that the ci rcuit court’s ruling “unnecessarily conflicts with the [c]ircuit [c]ourt’s prior decision to grant [petitioner] the opportunity to present his testimony.” He further asserts that if his testimony wa s truly manifestly unnecessary, th e circuit court should not have ruled that he could present his testimony. We do not find petitioner’s argument compelling.

We have held as follows:

“When parental rights are terminated due to neglect or abuse, the circuit court may nevertheless in appropriate cas es consider whether continued visitation
or other contact with the a busing parent is in the best interest of the child. Among other things, the circuit court should cons ider whether a close emotional bond has been established between parent and child a nd the child’s wishes, if he or she is of appropriate maturity to make such request . The evidence must indicate that such
visitation or continued contact would not be detrimental to the child’s well being
and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L. , 194 W.Va. 446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D ., 211 W.Va. 79, 562 S.E.2d 147 (2002). We have also held that

[a] parent whose rights have been te rminated pursuant to an abuse and neglect petition may request post-termina tion visitation. Such request should be brought by written motion, properly noti ced for hearing, whereupon the court should hear evidence and arguments of couns el in order to c onsider the factors established in Syllabus Point 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995), except in the even t that the court concl udes the nature of the underlying circumstances renders furthe r evidence on the issue manifestly

unnecessary.

Marley M. , 231 W.Va. at 535, 745 S.E.2d at 57 4, Syl. Pt. 5. Here, the record is clear that due to the egregious nature of petitione r’s sexual abuse of A.B., post-term ination visitation is not in the children’s best interests. Further, according to the record, A.B. is the only child of appropriate maturity to request post-termina tion visitation. However, she does not desire such visitation with petitioner. It is uncontested that the circuit court considered the evidence and arguments of counsel. Therefore, we agree with the circuit c ourt that due to the na ture of the underlying circumstances, the presentation of further ev idence on the issue was manifestly unnecessary. Thus, the circuit court did not err in denying petiti oner post-termination visitation with the children without hearing his testimony.

For the foregoing reasons, we find no error in the decision of the circuit court, and its June 13, 2018, order is hereby affirmed.

Affirmed.4 ISSUED : November 19, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Paul T. Farrell sit ting by temporary assignment