STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In Re: M.S. & C.S. April 13, 2015 

RORY L. PERRY II, CLERK 

No. 14-1177 (Hampshire County 13-JA-27 & 13-JA-28) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father, by counsel Lary Garrett, appeals the Circuit Court of Hampshire 

County’s October 22, 2014, order terminating his parental rights to M.S. and C.S. The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel Melinda Dugas, 

filed its response in support of the circuit court’s order. The guardian ad litem (“guardian”), 

Joyce Stewart, filed a response on behalf of M.S. and C.S. that supports the circuit court’s order. 

On appeal, Petitioner argues that the circuit court erred in terminating his parental rights and in 

denying his motion to stay the abuse and neglect proceedings pending the disposition of his 

criminal proceedings. 

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 2013, the DHHR filed an abuse and neglect petition against petitioner alleging, in part, 

that he was arrested for concealing a deceased human body, conspiracy to commit murder, and 

first-degree murder. The circuit court held an adjudicatory hearing in March of 2013, during 

which petitioner stipulated that he was arrested for the above-mentioned crimes and that he failed 

to provide suitable living conditions for his children. Accordingly, the circuit court adjudicated 

petitioner as a “neglectful” parent. Thereafter, but prior to the conclusion of petitioner’s criminal 

proceedings, the circuit court held a dispositional hearing and terminated petitioner’s parental 

rights. 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 

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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 alleges that the circuit court erred in terminating his parental rights 

solely upon his incarceration. This Court has stated: 

When 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. 

Syl. Pt. 3, Id. The case of In re Cecil T. also recognized that “this Court has never held that 

incarceration can not [sic] be the sole basis for terminating parental rights.” Id. at 96, 717 

S.E.2d at 880. 

Upon review, this Court finds no merit to petitioner’s argument. The record clearly shows 

that the circuit court relied upon several factors in terminating petitioner’s parental rights that 

were not related to petitioner’s incarceration. During disposition, petitioner’s counsel proffered 

that petitioner’s criminal trial was not scheduled to take place until sometime in 2015. 

“Unjustified procedural delays wreak havoc on a child's development, stability and security.” 

Syl. Pt.1, in part, In Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991). The record is 

devoid of any evidence that petitioner cooperated in the development of a family case plan. The 

circuit court also considered petitioner’s pending criminal charges, including first-degree murder, 

which, if convicted, carries a possible term of incarceration of life without the possibility of 

parole. “[I]ncarceration may unreasonably delay the permanent placement of the child deemed 

abused or neglected, and the best interests of the child would be served by terminating the 

incarcerated person’s parental rights.” In re Cecil T., 228 W.Va. at 97, 717 S.E.2d at 881. We 

also bear in mind that “‘courts are not required to exhaust every speculative possibility of 

parental improvement . . . and this is particularly applicable to children under the age of three 

years who are more susceptible to illness, need consistent close interaction with fully committed 

adults . . . .’ Syl. Pt. 1, in part, In Re: R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980).” Syl. Pt. 4, 

In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). In this case, petitioner’s children were 

approximately one year old and ten days old when the petition was filed. Accordingly, the circuit 

court then determined that it was in the children’s best interest to terminate his parental rights to 

achieve permanency. As such, the circuit court did not base termination of petitioner’s parental 

rights solely upon petitioner’s incarceration, and the circuit court did not violate the principles of 

In re Cecil T. in this case. 

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Petitioner also argues that the circuit court erred in denying his motion to stay the abuse 

and neglect proceedings pending the outcome of his criminal matter. We disagree. Circuit courts 

are specifically directed to proceed with abuse and neglect proceedings regardless of any related 

proceedings. Rule 5 of the Rules of Procedure for Child and Abuse Proceedings clearly states 

that “[u]nder no circumstances shall a civil protection proceeding be delayed pending the 

initiation, investigation, prosecution, or resolution of any other proceeding, including, but not 

limited to, criminal proceedings.” We have also held that “[c]hild abuse and neglect cases must 

be recognized as being among the highest priority for the courts’ attention. Unjustified 

procedural delays wreak havoc on a child’s development, stability and security.” Syl. Pt. 1, in 

part, In the Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991). Therefore, the Court 

finds no error in the circuit court’s order denying petitioner’s motion to stay the abuse and 

neglect proceedings. 

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

October 22, 2014, order is hereby affirmed. 

Affirmed. 

ISSUED: April 13, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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