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 pa rental rights to N.U. The West Virginia Department of Health and Huma n Resources (“DHHR”), by counsel Christopher S. Dodrill , filed its response in support of the ci rcuit 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 a ppeal, petitioner alleges that the circuit court erred in finding that it

was in the best interests of the child to te rminate 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 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 Appe llate Procedure.

In August of 2013, petitioner pled guilty in th e Circuit Court of Ka nawha County to the felony offense of possession of materials depict ing 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 rele ase. Petitioner was also required to register as a sex offender. Petitioner’s senten ce was suspended and he was allowed to serve his time under home incarceration. A condition of petiti oner’s home incarcerati on was that he could have no contact with any ch ildren, 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1 We note that West Virginia Code §§ 49- 1-1 through 49-11-10 were repealed and recodified during the 2015 Regular Session of the West Virg inia Legislature. The new enactment, West Virginia Code §§ 49-1-101 thr ough 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 VIRGINI A2 After petitioner was placed on home incarcera tion, 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 boyfrie nd alleging that there was a domestic violence incident in May of 2014 between the mother and her boyfriend an d that N.U. and another child

in the home witnessed the incident. Petitioner wa s not present for the in cident. The petition further alleged that th e 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 pr eliminary 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 remova l 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 se x-offender status.

In September of 2014, the circ uit court held an adjudicatory hearing and found by clear and convincing evidence that pe titioner, the mother, and the mo ther’s boyfriend abused and/or neglected N.U. and again denied visitation betw een petitioner and N.U. In November of 2014, the circuit court held a dispos itional hearing. The DHHR recomme nded that petitioner be denied an improvement period and that his parental rights be terminate d. 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 testif ied that based on petitioner’s conviction, N.U. would be at risk if petitioner retained his pare ntal 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 ci rcuit court found that petitioner was unlikely to substantially improve the c onditions of abuse and neglect, that a llowing him to reta in his parental rights would place N.U. at risk, an d 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 ente red a final dispositional order terminating petitioner’s parental rights and denying his request fo r post-termination visitation. It is from this order that petit ioner appeals.

2 Petitioner and the mother were married at the time of petitioner’s plea agreement. The mother filed for divorce sometime during the cr iminal 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 be tween N.U. and petitioner.3 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, the Court finds

no error in the circuit court’s ru ling that terminating petitioner’s parental rights was in N.U.’s best interests or in denying petitioner post-term ination visitation. On appeal, petitioner argues that the circuit court erred in terminating his pa rental 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 se t 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 eviden ce set forth in the record on appeal.

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

N.U. As the circuit court f ound, petitioner’s living conditions were unsuitable for a child, petitioner’s conviction for possess ion 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 att achment to petitioner. Accordingly, the circuit court found that petitioner was unlikely to subs tantially improve the conditions of abuse and neglect, that allowing him to re tain his parental rights would place N.U. at risk, and that termination of petitioner’s parent al rights was in N.U.’s best in terests. There is no reasonable

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

evidence shows that N.U.’s welfare would be th reatened 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 Circ uit Court of Mingo County did not err is making such a ruling.

This Court has recognized that “[a]lthough pare nts have substantial rights that must be protected, the primary goal in cases involving abus e 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 we ll-being, the circuit court found th at while petitioner’s probation officer and therapist did not believe that he presen ted any risk to N.U., those witnesses lacked the necessary knowledge to make such determinations. Similarly, the circuit court found that even4 though petitioner’s older children tes tified as to his good ch aracter, 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 pa rental 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 circui t court’s denial of petitioner’s request for post-termination visitation or in it s 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 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). 5 In the instant case, petitioner argues that post-termination vi sitation would be beneficial and would develop his bond with N.U. Given the evidence before it, the circuit cour t correctly found the child’ s best interests were served by denying post-terminatio n visitation with petitioner, based on its findings that petitioner’s living conditions were unsuitable fo r a child, that his conviction for possession of child pornography would put N.U. at risk, and that having further c ontact with him would impede N.U.’s emotional recovery. Further, N. U.’s psychological eval uation showed that she had no emotional response or attachment to th e 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 Ei sengieberei mbH v. Starcher, 174 W.Va. 618, 626 n. 12, 328 S.E.2d 492, 500 n. 12 (1985) (providing that “[a]n elem entary principle of statutory construction is that the word ‘may’ is inherently permissi ve 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