                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


In Re: A.L.                                                                       FILED
                                                                                  May 24, 2013
No. 12-1428 (Pleasants County 12-JA-09)                                      RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA


                                MEMORANDUM DECISION

        Child A.L. filed this appeal, by her guardian ad litem Michael D. Farnsworth Jr. This
appeal arises from the Circuit Court of Pleasants County, which dismissed the child’s father from
the underlying abuse and neglect petition. This dismissal order was entered on November 5,
2012. A.L.’s brother responds, by his guardian ad litem Paul V. Morrison II, in support of the
circuit court’s dismissal. The Department of Health and Human Resources (“DHHR”), by its
attorney Lee A. Niezgoda, also responds in support of the circuit court’s dismissal order. Child
A.L. has submitted a reply to these responses.

       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 August of 2012, the DHHR filed the underlying abuse and neglect petition against
both parents. After the parents divorced in 2005, the teenage children’s primary custody was
placed with their mother. The only allegations directed against the father in the abuse and neglect
petition were of abandonment through withholding support and shelter, and neglect through
knowingly failing to protect the children from their mother’s neglect. At the adjudicatory hearing
in September of 2012, the DHHR moved to dismiss the children’s father from the case, to which
A.L. opposed. The father testified that, subsequent to his divorce from the children’s mother, he
maintained weekly visitation with the children every weekend until the children decided to stop
seeing him so that they could spend more time with their friends. Visits eventually dwindled to
one to two times each year, but the father never missed a child support payment. The circuit
court dismissed the father from this action after finding that he complied with all of his child
support payments and any decrease in visitation was not through fault of his own. The circuit
court further found that there was insufficient evidence to substantiate any abandonment, abuse,
or neglect by the father. From this decision, child A.L. appeals.

        First, A.L. argues that the circuit court erred when it found that the father’s inactions
could not be held to constitute abuse and neglect of the children. She argues that because her
father knew of her mother’s driving under the influence (“DUI”) charge and a time when their
home’s utilities were shut off, her father should have filed a motion in family court to modify
custody of her and her brother. She argues that her father abandoned and neglected them when


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he failed to put their best interests first. Next, A.L. argues that the circuit court erred when it held
that the father was entitled to a reasonable belief that the DHHR was in the best position to
determine whether his children were being abused or neglected after the father made one referral
in the past to the DHHR on the children’s behalf. A.L. asserts that there is no statute that relieves
a parent from his or her duties to care for the children’s best interests. Lastly, A.L. argues that the
circuit court erred when it failed to find that neither the father’s failure to seek aid for the
children through family court nor his refusal or inability to provide his children with necessary
shelter is abuse or neglect. A.L. raises that his ongoing refusal constitutes neglect.

        In response, the guardian ad litem for A.L.’s brother and the DHHR contend that the
circuit court committed no error in dismissing the father from this case. Respondents assert that
the teenage children chose to decrease visitation with their father because they wanted to spend
more of their free time on the weekends with their friends. The DHHR highlights that West
Virginia Code § 48-9-206(a)(2) allows children fourteen years or older to express preferences for
their parents’ custodial time. With regard to A.L.’s argument that the father’s refusal to provide
them shelter constitutes neglect, respondents highlight that the children only requested residence
with their father once. Because this request was motivated by an argument the children were
having with their mother, the father refused. The brother’s guardian ad litem submits that, upon
interviewing the brother, the brother indicates bitterness over his parents’ divorce but does not
believe that his father ever “abandoned” him or his sister. Respondents further assert that the
limited knowledge the children’s father had about their life with their mother would not have
been sufficient evidence to succeed in modifying custody in family court. For instance, the father
only learned about the mother’s DUI from reading the newspaper, and did not know of any sort
of alcohol abuse she may have had. The father further testified of the lack of communication
between him and his children. The DHHR adds that although the father’s contact with his
children was less than ideal, it did not rise to the level of neglect to terminate parental rights. The
DHHR references Syllabus Point 7 of West Virginia Department of Health and Human
Resources ex rel. Wright v. Doris S., 197 W.Va. 489, 475 S.E.2d 865 (1996), and raises that the
evidence presented was not clear and convincing that the father “knowingly” condoned the
mother’s behavior.

       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).


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Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

        Upon our review, we find no error or abuse of discretion by the circuit court in this case.
The circuit court found that the evidence failed to show by clear and convincing evidence that
the father was aware of any danger to his children to justify seeking any action in court or that he
has ever been delinquent on child support payments. The circuit court concluded that the facts
and circumstances of the case do not arise to abuse and neglect by the father. Our review of the
record, including the adjudicatory hearing transcript, supports the circuit court’s dismissal.

       This Court reminds the circuit court of its duty to establish permanency for A.L. and her
brother. 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
children within twelve months of the date of the disposition order. As this Court has stated,

       [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, we affirm the circuit court’s dismissal order.

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                                      Affirmed.

ISSUED: May 24, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Justice Margaret L. Workman




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