1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re D.H.

No. 19-0995 (Raleigh County 17-JA-187-K)

MEMORANDUM DECISION

Petitioner Father A.H., by counsel Dennie S. Morgan Jr., appeals the Circuit Court of 

Raleigh County’s September 17, 2019, order terminating his parental rights to D.H.

1 The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, 

filed a response in support of the circuit court’s order. The guardian ad litem, Vickie L. Hylton, 

filed a response on behalf of the child in support of the circuit court’s order. On appeal, petitioner 

argues that the circuit court lacked sufficient evidence to adjudicate him of abandonment and 

terminate his parental 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.

The case below was initiated in July of 2017, when the DHHR filed an abuse and neglect 

petition against the child’s mother and other adult caregivers upon allegations of substance abuse, 

improper supervision, unsuitable living conditions, and other allegations. At that time, the DHHR 

did not include any allegations in regard to petitioner. By June of 2018, the child’s mother had 

voluntarily relinquished her parental rights to the child. At that time, petitioner, a resident of 

Alabama, failed to assume custody of the child. As a result, the DHHR filed an amended petition

in September of 2018 alleging that petitioner abandoned the child. Specifically, the DHHR alleged 

that during the hearing in June of 2018 during which the mother voluntarily relinquished her rights, 

“it was determined that [petitioner] could pick up” the child because of the lack of allegations 

against him at that time. However, the DHHR asserted that it had not heard from petitioner since 

that hearing and that it eventually learned that petitioner was incarcerated. According to the 

DHHR, the child “could have reached permanency in June” of 2018 if petitioner had assumed 

custody. The DHHR further alleged that petitioner provided no child support and that his lack of 

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). 

FILED

June 24, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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cooperation with the DHHR required it to file a petition against him alleging abandonment. The 

DHHR further indicated that the child did not know petitioner “very well.”

At an adjudicatory hearing in February of 2019, the DHHR presented testimony from a 

Child Protective Services worker who testified to petitioner’s failure to contact the DHHR for 

approximately six months following the mother’s voluntary relinquishment of parental rights. 

According to this witness, the DHHR contacted petitioner’s counsel, who was also unable to make 

contact with petitioner. Further, the witness testified that both the child and the child’s 

grandparents confirmed that petitioner had only seen the child twice during the child’s life. The 

witness also addressed petitioner’s lack of participation in the proceedings, including petitioner’s 

failure to drug screen so that he could visit the child in January of 2019, despite being in West 

Virginia at the time. 

Petitioner then testified and denied abandoning the child. Instead, petitioner alleged that 

the mother denied him access to the child, testifying that “it had always been a constant struggle” 

to see the child. Petitioner asserted, however, that he “made telephonic calls to his son.” According 

to petitioner he visited the child twice a year and lived in West Virginia for approximately three 

years after the child was born, during which period he exercised visitation with the child. Petitioner 

also testified that “through D.H.’s life[,] he . . . sent money, clothes, and [C]hristmas gifts.” 

Petitioner provided details about his incarceration that prevented him from taking custody of the 

child and indicated that it was a result of charges of driving on a suspended license and that he was 

incarcerated for approximately two months. Petitioner admitted, however, that he had not provided 

any support to the child since July of 2017, although he asserted that he sent gifts to the child 

during that period. Ultimately, the circuit court found that petitioner abandoned the child, based 

upon his failure to visit or financially support the child for several years. Thereafter, the circuit 

court granted petitioner an improvement period that required that he pay child support as ordered

and visit the child, among other requirements. 

In June of 2019, the circuit court held a review hearing. Petitioner did not attend due to his 

incarceration, but he was represented by counsel. In July of 2019, the circuit court held a 

dispositional hearing, by which point petitioner had been released from incarceration. During the 

hearing, the circuit court was informed that petitioner wished to voluntarily relinquish his parental 

rights by filing the appropriate documents and then orally relinquishing his parental rights at a later 

hearing. As a result, the dispositional hearing was continued. Before the continued hearing could 

be convened, the DHHR filed a court summary indicating that petitioner had again been 

incarcerated for escape, having “run away from the police in a hospital.” In September of 2019, 

the circuit court reconvened the dispositional hearing. Petitioner did not attend but was represented 

by counsel. During the hearing, the DHHR asserted that petitioner did not participate in his 

improvement period because he failed to visit the child or pay child support. The court also heard

evidence that after the parties were ordered to begin the process set forth in the Interstate Compact 

on the Placement of Children so that the child could be returned to petitioner, petitioner refused to 

cooperate. Based on the evidence, the circuit court found that petitioner “failed to participate in 

any way” despite the fact that the circuit court “bent over backwards to help him.” Additionally, 

despite the fact that the DHHR provided assistance, petitioner had “no visitation and no contact 

with the child.” The Court noted that it was sympathetic regarding the distance petitioner had to 

overcome, but that if petitioner “wanted to protect his interests, he could have.” Crucially, the 
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circuit court found that petitioner provided the child with no support, other than “some gifts on 

one occasion” and that he “had no contact with the Department and show[ed] no interest” in 

remedying the issues that necessitated the petition’s filing. Because petitioner “demonstrated a 

decided intent to abandon the child,” with whom he had “no relationship and no bond,” in 

conjunction with the fact that petitioner’s actions harmed the child, the circuit court found that 

termination of his parental rights was required. As such, the circuit court terminated petitioner’s 

parental rights.

2 It is from the 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). 

First, petitioner argues that the DHHR failed to satisfy its burden of proof at adjudication. 

According to petitioner, the evidence below did not demonstrate abandonment, given that he had 

previously visited with the child. Petitioner is correct that

“[West Virginia Code § 49-4-601(i)], requires the [DHHR], in a child abuse 

or neglect case, to prove ‘conditions existing at the time of the filing of the petition 

. . . by clear and convincing [evidence].’ The statute, however, does not specify any 

particular manner or mode of testimony or evidence by which the [DHHR] is 

obligated to meet this burden.” Syllabus Point 1, In Interest of S.C., 168 W.Va. 366, 

284 S.E.2d 867 (1981). 

Syl. Pt. 1, In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176 (1997) (citations omitted). Further, 

according to West Virginia Code § 49-1-201, “abandonment” is defined as “any conduct that 

demonstrates the settled purpose to forego the duties and parental responsibilities to the child.” 

Upon our review, however, we find that the DHHR satisfied its burden of proof in establishing 

that petitioner abandoned the child. 

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The mother voluntarily relinquished her parental rights below. According to respondents, 

the permanency plan for the child is adoption in the current foster home. 
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In support of this assignment of error, petitioner argues that he traveled to West Virginia 

on January 11, 2019, to deliver gifts to the child. Petitioner cites other similar evidence of isolated 

contact with the child, including that “there had been a visit to Alabama with” petitioner, in an 

attempt to establish that adjudication was improper, but none of this evidence is substantial enough 

to show that the circuit court erred in finding that petitioner abandoned the child. What petitioner 

fails to recognize is that his late attempts to simply visit the child are wholly insufficient to 

establish that he did not forego his parental responsibilities. Petitioner also argues that he lived in 

West Virginia for approximately the first three years of the child’s life and exercised regular 

visitation. It is unclear, however, how petitioner believes that this shows that he did not abandon 

the child. If anything, this evidence supports petitioner’s adjudication, as it shows that he may have 

once been involved in the child’s life, but that he eventually abdicated his responsibilities to the 

child, who was eight years old at the time of petitioner’s adjudication. Further, petitioner’s 

assertion that he did not abandon the child but that, instead, he was denied access by the mother is 

inconsistent with the evidence and even with petitioner’s arguments on appeal. In his brief before 

this Court, petitioner asserts that “the evidence in the case . . . demonstrated that [he] lived in 

Alabama and . . . relied on the child’s mother in West Virginia to care for the child on a day-today basis.” Not only does this argument undermine his assertion that he would have provided for 

the child if not for the mother’s intervention, it constitutes a tacit admission of his abandonment. 

Given that petitioner admits on appeal that he forewent his parental responsibilities in favor of 

allowing the mother, an individual with severe substance abuse issues, to undertake sole parental 

responsibilities, it is unclear why he believes that adjudication was inappropriate. 

Further, petitioner’s argument on appeal ignores the fact that the DHHR did not bring 

allegations against him until the mother voluntarily relinquished her parental rights and he was not 

only unable to assume custody of the child but, in fact, made no efforts to do so. Although 

petitioner repeatedly asserts that the mother denied him access to the child, he fails to provide an 

explanation as to how the mother could have continued impeding his ability to assume custody of

the child in the six months between the mother’s voluntary relinquishment of parental rights to the 

child and petitioner’s adjudication. As the record shows, in those six months, petitioner failed to 

contact the DHHR to inquire about the child, was incarcerated, failed to provide the child financial 

support, and failed to visit with the child. The record establishes that petitioner continued to 

abdicate his parental responsibilities for an extended period after the mother no longer had control 

over the child. Further, the record shows that the child indicated that he did not know petitioner 

well and, based on statements from the child and the child’s grandparent, petitioner had only met 

the child twice in his life. While it is true that petitioner testified to more contact with the child, 

the circuit court made a credibility determination after hearing all the evidence and found that 

petitioner’s unsupported testimony was lacking. As we have previously held, “[a] reviewing court 

cannot assess witness credibility through a record. The trier of fact is uniquely situated to make 

such determinations and this Court is not in a position to, and will not, second guess such 

determinations.” Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997). 

Therefore, we will not disturb such a determination on appeal. Based on the foregoing, we find 

that petitioner is entitled to no relief in regard to his adjudication for abandonment, as the evidence 

overwhelming established petitioner’s intent to forego his parental responsibilities. 

Next, petitioner argues that termination of his parental rights was inappropriate because the 

circuit court’s findings that there was no reasonable likelihood the conditions of abuse and neglect 
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could be substantially corrected and that termination was necessary for the child’s welfare were 

based on insufficient evidence. However, in support of this argument petitioner reiterates 

essentially the same arguments set forth above regarding his prior visits with the child, his having 

given the child gifts, and that the mother denied him access to the child. We again find these 

arguments unavailing. Further, while petitioner correctly cites the definition of “[n]o reasonable 

likelihood that conditions of neglect or abuse can be substantially corrected” set forth in West 

Virginia Code § 49-4-604(c) (2019),

3 he fails to recognize that West Virginia Code § 49-4-

604(c)(4) (2019) provides that circumstances in which there is no reasonable likelihood conditions 

of neglect or abuse can be substantially corrected include when “[t]he abusing parent or parents 

have abandoned the child.” Given the overwhelming evidence of petitioner’s abandonment of the 

child, it is clear that the circuit court did not err in finding that there was no reasonable likelihood 

the conditions of neglect or abuse could be substantially corrected. Further, given that petitioner 

took no action to assume custody of the child following the mother’s voluntary relinquishment of 

her rights, it is clear that the circuit court did not err in finding that the child’s wellbeing required 

termination of petitioner’s parental rights so that he could achieve permanency elsewhere. 

Pursuant to West Virginia Code § 49-4-604(b)(6) (2019), circuit courts may terminate 

parental rights upon these findings. Additionally, this Court has held that 

“[t]ermination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, [West Virginia 

Code § 49-4-604 (2019)] . . . may be employed without the use of intervening less 

restrictive alternatives when it is found that there is no reasonable likelihood under 

[West Virginia Code § 49-4-604(c) (2019)] . . . that conditions of neglect or abuse 

can be substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 

S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). As such, it is clear 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 

September 17, 2019, order is hereby affirmed.

Affirmed.

ISSUED: June 24, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman 

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

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Although the Legislature amended West Virginia Code § 49-4-604 effective June 5, 2020, 

including renumbering the provisions, the amendments do not impact this case.