STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In re: T.S. FILED 

November 22, 2017 No. 17-0514 (Raleigh County 15-JA-150-H) EDYTHE NASH GAISER, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

MEMORANDUM DECISION 

Petitioner Father W.S., by counsel R. Stephen Davis, appeals the Circuit Court of Raleigh 

County’s May 8, 2017, order terminating his parental, custodial, and guardianship rights to T.S.1 

The West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. 

Evans, filed a response in support of the circuit court’s order and a supplemental appendix. The 

guardian ad litem (“guardian”), Stanley I. Selden, 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 

considering his incarceration when terminating his parental, custodial, and guardianship rights. 

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 2015, the DHHR filed an abuse and neglect petition against petitioner 

and the mother. The DHHR alleged that aggravated circumstances existed as to the mother due 

to the involuntary termination of her parental rights to five older children. The DHHR also 

alleged that petitioner was incarcerated. According to the DHHR and petitioner’s later 

admissions, petitioner was incarcerated prior to the child’s birth. 

Thereafter, following continuances to establish paternity, the circuit court held an 

adjudicatory hearing. Petitioner initially agreed to stipulate to the allegations of abuse and 

neglect contained in the petition. However, petitioner later withdrew his stipulation after 

expressing concerns that any admission of abuse and/or neglect would prevent him from being 

granted parole. Following the presentation of evidence, the circuit court adjudicated petitioner as 

an abusing parent based on abandonment. 

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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In May of 2017, the circuit court held a dispositional hearing. The circuit court took 

notice of petitioner’s sentence of a term of incarceration of not less than one nor more than 

fifteen years after pleading guilty to Delivery of a Schedule II Narcotic in May of 2015. The 

circuit court considered the reasoning behind the denial of petitioner’s request for probation, 

which included the facts that petitioner was behind on his child support payments, had 

previously been convicted of domestic battery, had a suspended driver’s license due to failure to 

pay fines, had little job history, and had a history of drug abuse. Additionally, the circuit court 

noted that petitioner should have been eligible for parole after one year, but was not granted 

parole for two years, just days before the dispositional hearing. As such, petitioner had been 

incarcerated for the entirety of the child’s life and the circuit court found that no bond had been 

established. Finally, the circuit court found that petitioner did not provide any assistance to the 

child, nor did he engage in any conduct to enhance his ability to parent the child. Therefore, the 

circuit court found that there was no reasonable likelihood that the conditions of abuse and 

neglect could be corrected and that termination was necessary for the children’s welfare. 

Ultimately, the circuit court denied petitioner’s motion for a post-adjudicatory improvement 

period and terminated his parental, custodial, and guardianship rights.2 It is from this May 8, 

2017, dispositional 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 

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). 

Petitioner argues on appeal that the circuit court erred in considering his incarceration 

when terminating his parental, custodial, and guardianship rights. We disagree. With regard to 

incarceration, we have explained that incarceration may support the termination of parental 

rights based on the analysis of a series of factors. See Cecil T., 228 W.Va. at 97, 717 S.E.2d at 

881 (holding that “[a]lthough we have not adopted a per se rule regarding the impact 

2

In addition, the circuit court terminated the mother’s parental, custodial, and 

guardianship rights to the child. According to the parties, T.S. was placed in the home of a 

relative who previously adopted T.S.’s older half-sibling. The permanency plan is for T.S. to be 

adopted in that home. 

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incarceration has on a termination of parental rights decision, we have likewise not said that the 

facts surrounding a parent’s incarceration may never form the basis for terminating parental 

rights.”). Further, we have held that 

[w]hen 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. 

Id. at 91, 717 S.E.2d at 875, Syl. Pt. 3. 

In the present case, petitioner asserts that the circuit court erroneously considered his 

incarceration as a basis for termination when he did not know about the child upon his 

incarceration and had no way to provide for the child. We find no merit in petitioner’s argument. 

The record is clear that the circuit court considered factors other than petitioner’s incarceration 

when terminating his parental, custodial, and guardianship rights, including his history of drug 

abuse, his limited work history, his suspended driver’s license, and the fact that petitioner had no 

bond with the child. In fact, petitioner admits in his brief on appeal that the circuit court 

considered other factors when terminating his parental, custodial, and guardianship rights. 

Accordingly, we find no error in the circuit court’s consideration of petitioner’s incarceration. 

Further, we find no error in the circuit court’s termination of petitioner’s parental, 

custodial, and guardianship rights upon findings that there was no reasonable likelihood that the 

conditions of abuse and neglect could be corrected and that termination was necessary for the 

child’s welfare. While petitioner argues that his release from incarceration corrected the 

conditions of abuse and/or neglect, the record shows that his incarceration was not the only issue 

to be corrected. The circuit court found that petitioner initially denied paternity, failed to care for 

or protect the child, and had no bond with the child. Further, petitioner made no effort to arrange 

for support of the child, nor did he present any evidence that he undertook steps to request help 

or engage in programs to enhance his ability to parent the child. Finally, petitioner failed to admit 

any wrongdoing and refused to acknowledge the problems that needed corrected. We have 

previously held that 

[i]n order to remedy the abuse and/or neglect problem, the problem must first be 

acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth 

of the basic allegation pertaining to the alleged abuse and neglect or the 

perpetrator of said abuse and neglect, results in making the problem untreatable . . 

. . 

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In re Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215 

W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). As such, the record is clear that there was no 

reasonable likelihood that the conditions of abuse and neglect could be corrected. 

Additionally, the child requires stability and permanency. He has been in the custody of 

his relative since his birth, while these proceedings have stretched on over two years for various 

reasons, prohibiting permanency for the child. Thus, as the circuit court also found, termination 

of petitioner’s parental, custodial, and guardianship rights was necessary for the child’s wellbeing. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate 

parental rights upon such findings. 

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

May 8, 2017, order is hereby affirmed. 

Affirmed. 

ISSUED: November 22, 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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