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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 Adams, appeals the Circuit 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 Health 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 Prentice Young, filed a response 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 him 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 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. 

 

On February 24, 2016, an abuse and neglect petition was filed alleging petitioner sexually 

abused his daughter, A.B. Petitioner was adjudicated as an abusing parent and, subsequently, on 

March 31, 2016, petitioner voluntarily relinquished his parental rights to all three children. 

Thereafter, petitioner pled guilty to three counts of incest 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 fifty years of supervised release under specific 

restrictions and conditions. 

In January of 2018, petitioner filed a motion for post-termination visitation and a 

memorandum in support. The circuit court granted petitioner leave to appear 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). 

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Petitioner does not raise any error regarding the voluntary relinquishment of his parental 

rights to the children. 

FILED 

November 19, 2018 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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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 for petitioner moved to continue the hearing to 

allow petitioner to testify by telephone. However, the guardian objected and asserted that further 

consideration of the motion was unnecessary and unwarranted. Upon considering the arguments 

of counsel, the circuit court found that “the nature of the underlying circumstances renders 

further evidence on the issue manifestly unnecessary.” Syl. Pt. 5, in part, In re Marley M. 231 

W.Va. 534, 544 745 S.E.2d 572 (2013). The circuit court found that the underlying 

circumstances included, but were not limited to the following: (1) petitioner sexually abused his 

eleven-year-old daughter; (2) petitioner 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 visitation. The circuit court further found that posttermination visitation was not in the children’s best interests. Ultimately, the circuit court denied 

petitioner post-termination visitation in its June 13, 2018, order.3

 It is from this order that 

petitioner 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). Upon our review, this Court 

finds no error in the proceedings below. 

In his sole assignment of error on appeal, petitioner argues that the circuit court erred in 

denying him the opportunity to testify in support of his motion for post-termination visitation. In 

 

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The mother’s parental rights were terminated blow. According to respondents, the 

permanency plan for A.B. is adoption by her paternal grandfather who lives in Oregon. The 

permanency plan for S.B. and T.B. is adoption by their paternal grandmother who lives in West 

Virginia. 
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support, he contends that the circuit 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 was truly manifestly unnecessary, the 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 cases consider whether continued visitation 

or other contact with the abusing parent is in the best interest of the child. Among 

other things, the circuit court should consider whether a close emotional bond has 

been established between parent and child and 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 terminated pursuant to an abuse and 

neglect petition may request post-termination visitation. Such request should be 

brought by written motion, properly noticed for hearing, whereupon the court 

should hear evidence and arguments of counsel in order to consider the factors 

established in Syllabus Point 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 

692 (1995), except in the event that the court concludes the nature of the 

underlying circumstances renders further evidence on the issue manifestly 

unnecessary. 

Marley M., 231 W.Va. at 535, 745 S.E.2d at 574, Syl. Pt. 5. Here, the record is clear that due to 

the egregious nature of petitioner’s sexual abuse of A.B., post-termination 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-termination 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 court that due to the nature of the underlying 

circumstances, the presentation of further evidence on the issue was manifestly unnecessary. 

Thus, the circuit court did not err in denying petitioner 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. 
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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 sitting by temporary assignment