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In re G.C.

Supreme Court of West Virginia

February 23, 2018

In re G.C.

         (Raleigh County 14-JA-145)

          MEMORANDUM DECISION

         Petitioner Father M.D., by counsel Joseph Mosko and Sarah Smith, guardian ad litem for petitioner, appeal the Circuit Court of Raleigh County's August 14, 2017, order terminating his parental rights to G.C.[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 for the child ("guardian"), Steven K. Mancini, filed a response on behalf of the child suggesting that a custodial or permanent guardianship was in the child's interest so that a parental bond could be maintained. Respondent Intervenors, M.W. and R.W., the child's foster parents, by counsel Kyle G. Lusk, filed a response in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in terminating his parental rights to G.C. on the basis of his incarceration.

         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 May of 2014, the DHHR filed a petition against the parents alleging that the mother abused controlled substances and failed to provide adequate supervision for the child. The petition further alleged that petitioner abandoned the child by virtue of his incarceration on charges of first-degree murder in October of 2013.[2] Petitioner waived his preliminary hearing and made a motion for paternity testing.

         Following paternity testing, the DHHR filed an amended petition naming petitioner as the biological father and alleging that he has been incarcerated since October 2013, had not provided any financial support for, or had any meaningful contact with, the child since that time, and had abandoned the child.

         Petitioner stipulated to neglect based on his failure to provide support to the child. At the adjudication hearing in September of 2015, petitioner proffered that he may soon obtain release from incarceration on bond. The circuit court deferred any motions for an improvement period until petitioner obtained release from his incarceration. The case was continued multiple times while the circuit court waited for a change in petitioner's circumstances. In the meantime, G.C. was placed with his current foster family, the respondent intervenors, while the circuit court continued the matter.

         In August of 2016, petitioner moved for a post-adjudicatory improvement period and the motion was granted. The circuit court noted in its August 29, 2016, order that it could no longer delay G.C's permanency.

         The circuit court held a final dispositional hearing in August 2017. Petitioner was still incarcerated and, according to the parties, had pled guilty to first-degree murder. Petitioner would not have the possibility of parole for at least fifteen years. At that point, the child had been in DHHR's custody for thirty-three months and petitioner had neither signed a family case plan nor participated in services. Following this hearing, the circuit court terminated petitioner's parental rights by order entered August 14, 2017. [3] Petitioner appeals from that dispositional order.

         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). Upon our review, this Court finds no error in the proceedings below.

         On appeal, petitioner argues that the circuit court abused its discretion by terminating his parental rights on the sole basis of his incarceration. Specifically, petitioner highlights that the circuit court did not terminate his parental rights until after he was convicted of murder and sentenced to incarceration for life with mercy. Petitioner relies on Cecil T. and asserts that the circuit court failed to evaluate whether termination of parental rights was in the best interest of the child.

"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 ...

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