1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re L.C.-1

No. 20-0591 (Wetzel County 19-JA-17)

MEMORANDUM DECISION

Petitioner Father L.C.-2, by counsel Michael B. Baum, appeals the Circuit Court of Wetzel

County’s June 24, 2020, order terminating his parental rights to L.C.-1.

1 The West Virginia 

Department of Health and Human Resources (“DHHR”), by counsel Katherine A. Campbell, filed 

a response in support of the circuit court’s order and a supplemental appendix. The guardian ad 

litem, Elmer Earl Bowser Jr., filed a response on behalf of the child also in support of the circuit 

court’s order. On appeal, petitioner argues that the circuit court erred in terminating his parental 

rights rather than employing a less-restrictive dispositional alternative.

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 September of 2019, the DHHR filed an abuse and neglect petition against petitioner and 

the mother alleging that petitioner had abandoned L.C.-1 by failing to visit, have meaningful 

contact with, and/or financially support the child. Further, the child was living with her mother 

and the mother’s boyfriend despite the fact that the mother’s home was in deplorable condition 

with no utilities, including electric, water, or heating. The DHHR further alleged that there was no 

supervision of the child and no food in the home. Petitioner waived his preliminary hearing and 

was granted supervised visitation. The DHHR later filed an amended petition, alleging that 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). Additionally, because the child and petitioner share the same 

initials, we will refer to them as L.C.-1 and L.C.-2, respectively, throughout this memorandum 

decision. 

FILED

December 10, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

child was sexually abused by the mother’s boyfriend and the mother had knowledge of the same.

The amended petition also established petitioner’s paternity of the child. 

During the March of 2020 adjudicatory hearing, petitioner testified that he was incarcerated 

at the time of ten-year-old L.C.-1’s birth and acknowledged that he failed to financially support 

the child. Petitioner testified that it had been several months since he had seen the child and blamed 

the mother for preventing him from seeing the child. However, on cross-examination, petitioner 

acknowledged that he had not initiated any court actions to seek visitation with the child. Further, 

petitioner testified that he had not sent the child any correspondence, such as birthday cards or 

gifts, or attended her school events. Petitioner testified that he had only seen the child five or six 

times since 2012 and had not provided the mother with any child support or otherwise financially 

supported the child. After taking additional evidence, the circuit court found that petitioner had 

“neglected and abandoned” the child and failed to initiate court proceedings to visit with the child.

In June of 2020, the circuit court held a dispositional hearing wherein petitioner conceded

that nothing had changed since the adjudicatory hearing and admitted that he failed to bond with 

the child. Petitioner testified that he was renting a room in someone else’s home and lacked his 

own housing. Petitioner also admitted that he did not have a driver’s license after his third DUI 

conviction. A DHHR caseworker testified that the child did not mention petitioner during their 

meetings and the child expressed no interest in living with petitioner. The caseworker further 

testified that she recommended termination of petitioner’s parental rights, as no services could 

correct the conditions of abandonment. The DHHR also put on evidence that petitioner’s parental 

rights were involuntarily terminated to an older child in a previous proceeding. Accordingly, the 

circuit court terminated petitioner’s parental rights upon finding that there was no reasonable 

likelihood that he could correct the conditions of neglect in the near future and that termination 

was necessary for the child’s welfare. It is from the June 24, 2020, dispositional order that 

petitioner appeals.2

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). 

2

The mother voluntarily relinquished her parental rights and has not filed an appeal. The 

permanency plan for the child is adoption by her foster family.
3

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 parental rights 

rather than granting him a less-restrictive disposition because he repeatedly voiced a desire to 

reestablish a bond with L.C.-1 through supervised visitations. According to petitioner, the circuit 

court was required to give precedence to the dispositions as listed in West Virginia Code § 49-4-

604(c) and that it should have granted him disposition pursuant to § 49-4-604(c)(5).3 We find no 

error in the circuit court’s termination of petitioner’s parental rights. 

Pursuant to West Virginia Code § 49-4-604(c)(6), circuit courts are directed to terminate 

parental rights upon finding that there is “no reasonable likelihood that the conditions of neglect 

or abuse can be substantially corrected in the near future” and that termination is necessary for the 

child’s welfare. West Virginia Code § 49-4-604(d) defines “[n]o reasonable likelihood that [the]

conditions of neglect or abuse can be substantially corrected” as follows: “the abusing [parent] . . 

. ha[s] demonstrated an inadequate capacity to solve the problems of abuse or neglect on [his] own 

or with help.” 

Here, petitioner’s parental rights were terminated due to his lack of financial or emotional 

support to the child, little visitation or bonding with the child, and aggravating circumstances from 

the prior termination of his parental rights. While petitioner argues that he could not provide for 

the child during his period of incarceration, the record shows that petitioner failed to provide 

support upon his release. To the extent petitioner argues that he has been hindered from visiting 

the child by the mother, we note that the circuit court found this testimony to not be credible after 

he failed to submit any evidence supporting any interference from the mother. Further, petitioner 

argues that if his own testimony “is to be believed, he did not abandon his daughter.”4 However, 

the circuit court heard petitioner’s testimony in this regard and weighed it against the testimony of 

service providers and the DHHR who attempted to assist petitioner in remedying the conditions at 

issue and found petitioner’s own initiative to have a relationship with the child lacking. We decline 

to disturb these credibility determinations on appeal. See Michael D.C. v. Wanda L.C., 201 W. Va. 

381, 388, 497 S.E.2d 531, 538 (1997) (“A reviewing court cannot assess witness credibility 

through a record. The trier of fact is uniquely situated to make such determinations and this Court 

is not in a position to, and will not, second guess such determinations.”). 

3

West Virginia Code § 49-4-604(c)(5) provides that a circuit court may

[u]pon a finding that the abusing parent or battered parent or parents are presently 

unwilling or unable to provide adequately for the child’s needs, commit the child 

temporarily to the care, custody, and control of the department, a licensed private 

child welfare agency, or a suitable person who may be appointed guardian by the 

court.

4

It is important to note that petitioner does not specifically challenge his adjudication as a 

neglecting parent. Similarly, petitioner does not allege that the DHHR introduced insufficient 

evidence to satisfy its burden of proof at adjudication in regard to the allegations against him. 

Instead, petitioner simply continues to dispute the circuit court’s findings regarding the neglect. 

Because petitioner does not assert an assignment of error challenging his adjudication below, the 

circuit court’s findings regarding petitioner’s neglect are not at issue on appeal. 
4

Further, petitioner acknowledges that “it is clear from the record” that he “did not have a 

close relationship with his child.” As such, we find no error in the circuit court’s refusal to grant 

petitioner a less-restrictive alternative to termination of his parental rights, given that we have 

previously held that 

“[t]ermination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, [West Virginia 

Code § 49-4-604] may be employed without the use of intervening less restrictive 

alternatives when it is found that there is no reasonable likelihood under [West 

Virginia Code § 49-4-604(d)] that conditions of neglect or abuse can be 

substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 

114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). While petitioner maintains that 

he vocally wished to reestablish a relationship with the child at the dispositional hearing, he 

admitted that he had only seen the child five or six times in the preceding eight years and struggled 

to recall her current age or the last time he visited her. Due to petitioner’s failure to address the 

conditions of neglect or establish a bond with the child, we find no error in the circuit court’s 

finding that there was no reasonable likelihood that the conditions of neglect could be substantially 

corrected in the near future and that termination was necessary for the child’s welfare. Therefore, 

we likewise find no error in the circuit court’s termination of petitioner’s parental rights.

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

24, 2020, order is hereby affirmed.

Affirmed.

ISSUED: December 10, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead 

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison