STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
June 28, 2013
In Re: S.C. RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 12-1515 (Wood County 11-JA-52) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father filed this appeal, by counsel Robin Bonovitch, from a December 7, 2012
order of the Circuit Court of Wood County, which terminated his parental, custodial, and
guardianship rights to his child S.C. The guardian ad litem for the child, Jessica Myers, has filed
a response supporting the circuit court’s order. The Department of Health and Human Resources
(“DHHR”), by its attorney Lee Niezgoda, filed a response in support of the circuit court’s order.
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.
In May of 2011, the DHHR filed its petition in the instant case. This petition alleged that
Petitioner Father committed multiple acts of domestic violence against the child’s mother in the
presence of the child. Petitioner Father admitted to using unprescribed Adderall and K2
(synthetic cannabis). Petitioner Father was granted a pre-adjudicatory improvement period.
Following his pre-adjudicatory improvement period, the circuit court found that Petitioner Father
was an abusive and neglectful parent for committing multiple acts of domestic violence in the
home in the presence of the child, for aiding and abetting the biological mother’s substance
abuse by obtaining illegal substances and assisting her in obtaining illegal substances, and for
abusing controlled substances without a valid prescription. Consequently, following the
dispositional hearing in August of 2012, the circuit court terminated Petitioner Father’s parental,
custodial, and guardianship rights. Petitioner Father appeals this termination that was based upon
Petitioner Father’s lack of progress during the improvement period and admitted unwillingness
to comply with the requirements of the circuit court.
Petitioner Father argues that the circuit court erred in finding that the conditions of abuse
and neglect giving rise to the filing of the petition were not corrected. Petitioner Father argues he
presented sufficient evidence that he completed parenting classes, attended therapy, took the
necessary steps to improve the conditions that led to the filing of the abuse and neglect petition,
and visited with his child. In response, all respondents argue that Petitioner Father has denied
that he committed acts of domestic violence or that he abused drugs. Respondents further assert
that Petitioner Father refused counseling and treatment for his drug addition, that he failed to
participate in drug screens as part of this pre-adjudicatory improvement plan, and that he failed
to take any steps to correct the conditions that led to the filing of the instant petitions.
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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, the Court finds no error in the circuit court’s termination of Petitioner
Father’s parental, custodial, and guardianship rights. The transcripts in the record contain from
Petitioner Father denying his participation in domestic violence. The transcripts also reflect that
Petitioner Father has denied he abused drugs and that he failed to complete counseling and
treatment for his substance addiction. We find that the circuit court was presented with sufficient
evidence to support its findings that there was no reasonable likelihood to believe that 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, custodial, and guardianship rights upon such findings.
For the foregoing reasons, we affirm the circuit court’s order terminating petitioner’s
parental, custodial, and guardianship rights to the subject child.
Affirmed.
ISSUED: June 28, 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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