STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In re: T.M. FILED 

June 9, 2017 No. 16-0862 (Marion County 16-JA-39) RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

MEMORANDUM DECISION 

Petitioner Father J.M., by counsel Michelle L. Minutelli, appeals the Circuit Court of 

Marion County’s August 19, 2016, order terminating his parental rights to then three-year-old 

T.M.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel 

Lee Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem 

(“guardian”), Terri L. Tichenor, filed a response on behalf of the child in support of the circuit 

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

rights based on his incarceration when a less-restrictive dispositional alternative was available 

and appropriate. 

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 March of 2016, the DHHR filed an abuse and neglect petition against the child’s 

mother for substance abuse and petitioner for abandonment due to his prolonged incarceration. 

The DHHR noted that petitioner’s address at the time of the petition’s filing was North Central 

Regional Jail. In May of 2016, the circuit court held an adjudicatory hearing. Petitioner remained 

incarcerated at that time. At that hearing, the DHHR presented testimony by a police officer and 

a Child Protective Services (“CPS”) worker that petitioner was incarcerated and unable to 

assume the care, custody, or control of the child. 

In June of 2016, the circuit court held a dispositional hearing. Petitioner remained 

incarcerated at that time. A CPS worker testified that petitioner remained incarcerated with a 

projected discharge date of March of 2018. The CPS worker acknowledged that petitioner was 

parole eligible beginning in August of 2016. The CPS worker further indicated that the child’s 

mother previously lost her parental rights to the child, and, thus, the child’s best interests 

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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necessitated adoption by the paternal grandmother. According to the CPS worker, the child could 

not be adopted if petitioner were granted a disposition other than termination of parental rights. 

The CPS worker stated that there was no guarantee that petitioner would be released on parole in 

August of 2016. At the conclusion of the hearing, by order entered on August 19, 2016, the 

circuit court terminated petitioner’s parental rights to the child. In that order, the circuit court 

found that the least-restrictive dispositional alternative was termination, in light of the child’s 

best interests and petitioner’s inability to care for the child due to his incarceration.2 This appeal 

followed. 

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). 

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

based on his incarceration when a less-restrictive dispositional alternative, specifically a legal 

guardianship, existed. We disagree. This Court has explained that incarceration may form the 

basis for a termination of parental rights. Cecil T., 228 W.Va. at 96, 717 S.E.2d at 880. In Cecil 

T., we explained that 

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 

2

The parental rights of both parents were terminated below. According to the guardian, 

the child was initially placed with a grandparent, but due to concerns with the grandparent’s 

caretaking, the child currently resides in foster care with a permanency plan of adoption by foster 

parents. 

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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. 

228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 3. 

Further, West Virginia Code § 49-4-604(6) provides that 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. We have also held that “[t]ermination . . . may be employed 

without the use of intervening less[-]restrictive alternatives when it is found that there is no 

reasonable likelihood . . . that conditions of neglect or abuse can be substantially corrected.” In 

re Katie S., 198 W.Va. at 79, 479 S.E.2d at 589, syl. pt. 7, in part. 

In this case, the CPS worker testified at the dispositional hearing that petitioner could not 

provide the child with the care, custody, and control required while he was incarcerated. Further, 

the testimony indicated that there was no guarantee that petitioner would be released from his 

incarceration for years from the date of the dispositional hearing, notwithstanding the parole 

eligibility date. Therefore, we find no error in the circuit court’s finding that there was no 

reasonable likelihood that the conditions of neglect or abuse could be substantially corrected in 

the near future. Notably, the circuit court also found that no dispositional alternative short of 

termination could meet the child’s best interests. As such, we find that the circuit court did not 

err in terminating petitioner’s parental rights. 

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

August 19, 2016, order is hereby affirmed. 

Affirmed. 

ISSUED: June 9, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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