STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In Re: J.G. Jr. FILED 

March 12, 2013 

No. 12-1041 (Mercer County 11-JA-68) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother’s appeal, by counsel Gerald R. Linkous, arises from the Circuit Court of 

Mercer County, wherein her parental, custodial, and guardianship rights to the child were 

terminated by order entered on August 13, 2012. The West Virginia Department of Health and 

Human Resources (“DHHR”), by counsel William Bands, has filed its response. The guardian ad 

litem, John Earl Williams Jr., has filed a response on behalf of the child. 

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 is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

On May 4, 2011, the DHHR filed its initial abuse and neglect petition alleging, among 

other things, that the parents neglected the child by virtue of leaving him unsupervised and 

subjecting him to uninhabitable living conditions. The parents both stipulated to neglect at the 

adjudicatory hearing and were granted post-adjudicatory improvement periods. However, the 

DHHR eventually sought termination of parental rights, which the circuit court ordered at the 

dispositional hearing. On appeal, petitioner alleges that the circuit court erred in terminating her 

parental, custodial, and guardianship rights because the evidence supported choosing a lessrestrictive disposition option. Petitioner argues that because of the child’s special needs and a lack 

of a suitable adoptive placement, the circuit court should have terminated only her custodial rights 

and allowed petitioner to maintain a relationship with the child. 

In response, both the DHHR and the guardian ad litem support termination of petitioner’s 

parental, custodial, and guardianship rights. Both respondents argue that the evidence below 

established petitioner’s continued drug use, non-compliance with services, serious domestic 

violence issues, and denial of the problems giving rise to the petition’s filing. Further, respondents 

argue that petitioner has an extensive history of involvement with the DHHR, yet issues persist in 

the home. 

The Court has previously established the following standard of review: 

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“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 termination of petitioner’s 

parental, custodial, and guardianship rights. The circuit court was presented with sufficient 

evidence upon which it found that that there was no reasonable likelihood that the conditions of 

abuse and neglect could be substantially corrected in the near future and that termination was 

necessary for the child’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts 

are directed to terminate parental rights upon these findings. 

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

termination of petitioner’s parental, custodial, and guardianship rights is hereby affirmed. 

Affirmed. 

ISSUED: March 12, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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