STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In Re: L.M, S.W., J.W., and K.W. FILED 

March 31, 2014 

RORY L. PERRY II, CLERK No. 13-1104 (Mercer County 12-JA-172 through 12-JA-175) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father, by counsel Elizabeth French, appeals the Circuit Court of Mercer 

County’s October 1, 2013, order terminating his parental, custodial, and guardianship rights to 

L.M, S.W., J.W., and K.W.1 The West Virginia Department of Health and Human Resources 

(“DHHR”), by counsel William Jones, filed its response in support of the circuit court’s order. 

The guardian ad litem, Allison Huson, filed a response on behalf of the children also supporting 

the circuit court’s order. On appeal, Petitioner Father alleges that the circuit court erred in 

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 decision is appropriate under Rule 

21 of the Rules of Appellate Procedure. 

In October of 2012, the DHHR filed an abuse and neglect petition against Petitioner 

Father. The petition alleged that Petitioner Father committed multiple acts of domestic violence 

in the presence of the children. By order entered on March 20, 2013, Petitioner Father stipulated 

that he abused the children by committing acts of domestic violence in their presence. The circuit 

court then granted Petitioner Father a post-adjudicatory improvement period.2 

Thereafter, Petitioner Father was arrested for the manufacture/delivery of a controlled 

substance and was sentenced to a term of incarceration of two to twenty years. At the 

dispositional hearing on September 13, 2013, the circuit court heard testimony from a child 

protective services worker. After considering the evidence and the arguments of counsel, the 

circuit court terminated Petitioner Father’s parental, custodial, and guardianship rights. It is from 

this order that Petitioner Father now appeals. 

The Court has previously established the following standard of review: 

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Petitioner Father is the biological father of K.W. only. 

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The record is devoid of any information regarding the length of the post-adjudicatory 

improvement period or its terms and conditions. 

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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). 

On appeal, Petitioner Father alleges that the circuit court erred in terminating his parental, 

custodial, and guardianship rights to the children based solely upon his incarceration. This Court 

has stated: 

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 

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. 

Syl. Pt. 3, Id. The case of In re: Cecil T. also recognized that “this Court has never held that 

incarceration can not [sic] be the sole basis for terminating parental rights.” Id. at 96, 717 

S.E.2d at 880. 

During disposition, the circuit court heard testimony that Petitioner Father was sentenced 

to a term of incarceration of two to twenty years for the manufacture/delivery of a controlled 

substance. The circuit court also correctly considered that Petitioner Father could no longer 

participate in his improvement period because of the length of his incarceration. “[I]ncarceration 

may unreasonably delay the permanent placement of the child deemed abused or neglected, and 

the best interests of the child would be served by terminating the incarcerated person’s parental 

rights.” Id. at 97, 717 S.E.2d at 881. The circuit court then determined that it was in the 

children’s best interest to terminate his parental, custodial, and guardianship rights to achieve 

permanency, security, stability, and continuity. This Court finds that the circuit court did not 

violate the principles of In re: Cecil T. in this case. 

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

October 1, 2013, order is hereby affirmed. 

Affirmed. 

ISSUED: March 31, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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