1

STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS

In Re: N.U. 

No. 15-0032 (Mingo County 14-JA-50)

MEMORANDUM DECISION 

Petitioner Father A.U., by counsel Stacey Kohari, appeals the Circuit Court of Mingo 

County’s December 11, 2014, order terminating his parental rights to N.U. The West Virginia 

Department of Health and Human Resources (“DHHR”), by counsel Christopher S. Dodrill, filed 

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

litem (“guardian”), Della Cline-Gentile, filed a response on behalf of the child supporting the 

circuit court’s order. On appeal, petitioner alleges that the circuit court erred in finding that it 

was in the best interests of the child to terminate his parental rights and to deny him posttermination visitation.1

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 August of 2013, petitioner pled guilty in the Circuit Court of Kanawha County to the 

felony offense of possession of materials depicting minors engaged in sexually explicit conduct 

pursuant to West Virginia Code § 61-8C-3. In February of 2014, petitioner was sentenced to a 

term of two years in prison and fifteen years of supervised release. Petitioner was also required 

to register as a sex offender. Petitioner’s sentence was suspended and he was allowed to serve his 

time under home incarceration. A condition of petitioner’s home incarceration was that he could 

have no contact with any children, including his own. 

                                                             1

We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and 

recodified during the 2015 Regular Session of the West Virginia Legislature. The new 

enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and 

became effective ninety days after the February 19, 2015, approval date. In this memorandum 

decision, we apply the statutes as they existed during the pendency of the proceedings below. 

 

FILED 

October 20, 2015

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
2

After petitioner was placed on home incarceration, N.U. lived with her mother in a 

separate residence.2

 On July 23, 2014, the DHHR filed an abuse and neglect petition against 

petitioner, the mother, and the mother’s boyfriend alleging that there was a domestic violence 

incident in May of 2014 between the mother and her boyfriend and that N.U. and another child 

in the home witnessed the incident. Petitioner was not present for the incident. The petition 

further alleged that the home was uninhabitable.3

 N.U. was approximately four years old at the 

time the petition was filed. 

 

In July of 2014, the circuit court held a preliminary hearing and found probable cause to 

believe that petitioner, N.U.’s mother, and the mother’s boyfriend abused and/or neglected N.U. 

and the other child in the home and that removal was the least-restrictive means to serve the 

children’s best interests. The circuit court also denied visitation between petitioner and N.U. 

based on his conviction and sex-offender status. 

 

 In September of 2014, the circuit court held an adjudicatory hearing and found by clear 

and convincing evidence that petitioner, the mother, and the mother’s boyfriend abused and/or 

neglected N.U. and again denied visitation between petitioner and N.U. In November of 2014, 

the circuit court held a dispositional hearing. The DHHR recommended that petitioner be denied 

an improvement period and that his parental rights be terminated. The DHHR argued that 

termination would be in N.U.’s best interest. Petitioner’s probation officer testified that 

petitioner’s home was not suitable for a child. The guardian testified that based on petitioner’s 

conviction, N.U. would be at risk if petitioner retained his parental rights. Petitioner’s older 

children testified that he was a good father, but also admitted that they testified favorably for 

petitioner so that they could see N.U. The circuit court found that petitioner was unlikely to 

substantially improve the conditions of abuse and neglect, that allowing him to retain his parental 

rights would place N.U. at risk, and that termination of petitioner’s parental rights was in N.U.’s 

best interests. The circuit court deferred its final ruling until N.U. had a psychological 

evaluation.4

 

 

 In December of 2014, the circuit court entered a final dispositional order terminating 

petitioner’s parental rights and denying his request for post-termination visitation. It is from this 

order that petitioner appeals. 

                                                             2

Petitioner and the mother were married at the time of petitioner’s plea agreement. The 

mother filed for divorce sometime during the criminal proceedings and N.U. was placed with 

her. 

 

3

The DHHR alleged that the children were living in squalid conditions, specifically that 

the home was “in bad shape,” that there was glass and garbage on the floor, that the refrigerator 

was empty, and that there were empty pill bottles lying around the home. 

 

4

N.U.’s psychological evaluation took place on November 25, 2014. The report explained 

that N.U. had no emotional response toward petitioner and that N.U. did not express any 

emotional attachment to petitioner or his family. Accordingly, the psychologist did not 

recommend post-termination visitation between N.U. and petitioner. 
3

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, the Court finds 

no error in the circuit court’s ruling that terminating petitioner’s parental rights was in N.U.’s 

best interests or in denying petitioner post-termination visitation. On appeal, petitioner argues 

that the circuit court erred in terminating his parental rights because the petition did not allege 

that he was actively abusing N.U. and that his right as a natural parent to his child is paramount 

to that of any other person, as set forth in syllabus point one of In re Willis, 157 W.Va. 225, 207 

S.E.2d 129 (1973). Thus, termination was not in the child’s best interest. We disagree and find 

that petitioner’s argument ignores the evidence set forth in the record on appeal. 

It is clear from the record on appeal that petitioner is incapable of assuming custody of 

N.U. As the circuit court found, petitioner’s living conditions were unsuitable for a child, 

petitioner’s conviction for possession of child pornography would put N.U. at risk, and that 

having contact with petitioner would put N.U. at risk. Further, N.U.’s psychological evaluation 

showed that she had no emotional response or attachment to petitioner. Accordingly, the circuit 

court found that petitioner was unlikely to substantially improve the conditions of abuse and 

neglect, that allowing him to retain his parental rights would place N.U. at risk, and that 

termination of petitioner’s parental rights was in N.U.’s best interests. There is no reasonable 

likelihood that the conditions which led to the filing of the petition can be corrected, and the 

evidence shows that N.U.’s welfare would be threatened should she be placed in petitioner’s 

home. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate 

parental rights upon such a finding, and the Circuit Court of Mingo County did not err is making 

such a ruling. 

 This Court has recognized that “[a]lthough 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). Contrary to petitioner’s argument that the evidence demonstrated that he is 

not a threat to N.U. or her well-being, the circuit court found that while petitioner’s probation 

officer and therapist did not believe that he presented any risk to N.U., those witnesses lacked the 

necessary knowledge to make such determinations. Similarly, the circuit court found that even 
4

though petitioner’s older children testified as to his good character, they did so in an effort to 

maintain contact with N.U. Both the DHHR and the guardian presented evidence which 

established that allowing petitioner to retain his parental rights would put N.U. at risk. Therefore, 

we find no error in the circuit court’s determination that termination of petitioner’s parental 

rights was in N.U.’s best interests. 

Finally, the Court finds no error in the circuit court’s denial of petitioner’s request for 

post-termination visitation or in its finding that the denial is in the best interests of N.U. We have 

held that 

“[w]hen 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).5

 In the instant case, petitioner 

argues that post-termination visitation would be beneficial and would develop his bond with 

N.U. Given the evidence before it, the circuit court correctly found the child’s best interests were 

served by denying post-termination visitation with petitioner, based on its findings that 

petitioner’s living conditions were unsuitable for a child, that his conviction for possession of 

child pornography would put N.U. at risk, and that having further contact with him would 

impede N.U.’s emotional recovery. Further, N.U.’s psychological evaluation showed that she 

had no emotional response or attachment to the petitioner. Following a thorough review of the 

record on appeal, we find that the circuit court did not err in denying such post-termination 

visitation. 

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

December 11, 2014, order is hereby affirmed. 

Affirmed. 

                                                             5

We have also held that the word “may” is permissive and connotes discretion. See Gebr. 

Eickhoff Maschinenfabrik Und Eisengieberei mbH v. Starcher, 174 W.Va. 618, 626 n. 12, 328 

S.E.2d 492, 500 n. 12 (1985) (providing that “[a]n elementary principle of statutory construction 

is that the word ‘may’ is inherently permissive in nature and connotes discretion.”) (citations 

omitted).
5

ISSUED: October 20, 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