                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS

                                                                                    FILED
In re: P.A.                                                                       February 11, 2013
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
No. 12-0933 (Mercer County 11-JA-200)                                            OF WEST VIRGINIA



                                 MEMORANDUM DECISION

        Petitioner Father, by counsel David B. Kelley, appeals the Circuit Court of Mercer
County’s order entered on August 3, 2012, terminating his parental rights to his child. The
guardian ad litem, Julie Lynch, has filed her response on behalf of the child. The West Virginia
Department of Health and Human Resources (“DHHR”), by William Bands, its attorney, has filed
its response.

       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 Revised Rules of Appellate
Procedure.

        The abuse and neglect petition in this matter was filed based on drug abuse by both
parents. During the pendency of this action, Petitioner Father allegedly strangled the child’s
mother, disposed of her body, and then abducted P.A. from her grandparent’s home.1 An amended
petition was filed based on petitioner’s alleged actions. After an adjudicatory hearing, the circuit
court found that there was clear and convincing evidence that petitioner had caused the death of
the mother and that the death was non-accidental. The child was adjudicated as an abused child.
Petitioner Father’s parental rights were then terminated after the circuit court found that the
aggravated circumstances of the case did not require the DHHR to make reasonable efforts toward
reunification.

       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

1
  Petitioner is awaiting a criminal trial for his actions against the child’s mother. However,
testimony given by a service provider in this action showed that petitioner allegedly confessed to
the crimes to the provider via telephone while petitioner was on the run. With this memorandum
decision, this Court makes no findings regarding the related criminal charges.
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       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 first argues that the circuit court erred in adjudicating the
minor child to be an abused child because there was not clear and convincing evidence that
petitioner killed the child’s mother and that even if he killed the mother, it was not an intentional
act but rather a crime of passion. Petitioner also argues that the circuit court erred in terminating
his parental rights without an improvement period, again asserting that there was no clear and
convincing evidence that petitioner killed the mother.

        The guardian and the DHHR respond in favor of the termination of parental rights,
arguing that the child is clearly an abused child pursuant to West Virginia Code §§ 49-1-3(1)(A)
and (D) based on petitioner killing his wife. Further, the guardian and DHHR argue that the
circuit court properly terminated Petitioner Father’s parental rights without an improvement
period because West Virginia Code § 49-6-5b(3) provides that if one parent commits murder or
voluntary manslaughter of the other parent, then the DHHR is required to move for termination of
parental rights.

        This Court finds no error in the adjudication of the minor child as an abused child based
on the testimony regarding petitioner’s actions in causing the death of the child’s mother. As to
the termination of parental rights, pursuant to West Virginia Code § 49-6-5(a)(7)(B)(ii) the
DHHR was not required to make reasonable efforts to preserve the family, based on the fact that
the circuit court found that petitioner killed the mother. Therefore, an improvement period was
not required prior to the termination. This Court finds no error in the termination of parental rights
in this matter.

       This Court reminds the circuit court of its duty to establish permanency for the child. Rule
39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires:

       At least once every three months until permanent placement is achieved as defined
       in Rule 6, the court shall conduct a permanent placement review conference,
       requiring the multidisciplinary treatment team to attend and report as to progress
       and development in the case, for the purpose of reviewing the progress in the
       permanent placement of the child.

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child
within twelve months of the date of the disposition order. As this Court has stated,

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       [t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules of
       Procedures for Child Abuse and Neglect Proceedings for permanent placement of
       an abused and neglected child following the final dispositional order must be
       strictly followed except in the most extraordinary circumstances which are fully
       substantiated in the record.

Syl. Pt. 6, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Moreover, this Court has stated
that

       [i]n determining the appropriate permanent out-of-home placement of a child
       under W.Va.Code § 49-6-5(a)(6) [1996], the circuit court shall give priority to
       securing a suitable adoptive home for the child and shall consider other placement
       alternatives, including permanent foster care, only where the court finds that
       adoption would not provide custody, care, commitment, nurturing and discipline
       consistent with the child's best interests or where a suitable adoptive home can not
       be found.

Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian ad
litem's role in abuse and neglect proceedings does not actually cease until such time as the child is
placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400
(1991).

        For the foregoing reasons, the circuit court’s order terminating petitioner’s parental rights
is hereby affirmed.


                                                                                          Affirmed.

ISSUED: February 11, 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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