                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In Re: L.S.                                                                       FILED
                                                                             November 24, 2014
No. 14-0506 (Raleigh County 12-JA-51)                                        RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Steven K. Mancini, guardian ad litem for the mother below, appeals the Circuit
Court of Raleigh County’s April 23, 2014, order terminating her parental rights to L.S. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed
its response in support of the circuit court’s order and a supplemental appendix. The guardian ad
litem for the child, Mary Beth Chapman, filed a response on behalf of the child supporting the
circuit court’s order and a supplemental appendix. On appeal, petitioner alleges that the circuit
court erred in proceeding to disposition without requiring that a family case plan be filed and in
terminating the mother’s 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.

        In April of 2012, the DHHR filed an abuse and neglect petition against the parents
alleging aggravated circumstances due to a prior involuntary termination of parental rights to an
older child. In July of 2012, the circuit court held an adjudicatory hearing, during which
petitioner stipulated to the allegations and was awarded a post-adjudicatory improvement period.
Following a court-ordered psychological evaluation, the circuit court appointed a guardian ad
litem for the mother. In December of 2012, at a multi-disciplinary treatment team (“MDT”)
meeting, a family case plan was formulated and signed by the mother. Additionally, during the
pendency of the proceedings below, the mother gave birth to another child, K.R. According to
her testimony below, the mother did not want the DHHR to take custody of the child, so she
arranged to give birth in Utah and allowed an adoptive family to take custody.1

       Following several review hearings regarding the mother’s improvement period and an
extension to the same, the DHHR filed a motion to terminate her parental rights in October of

       1
         The dispositional transcript indicates that the DHHR contacted Child Protective Services
in Utah to initiate a homestudy procedure pursuant to the Interstate Compact on the Placement of
Children to assure that K.R.’s home was appropriate. Accordingly, the circuit court terminated
the mother’s parental rights to L.S. only, as she voluntarily relinquished her rights to K.R. by
giving the child up for adoption. This memorandum decision, therefore, concerns only L.S.
                                                1


2013. The following month, the circuit court held a hearing on the motion and continued the
same until January 28, 2014, at which point the circuit court heard additional witnesses, but
again continued the matter for the DHHR to present additional witnesses. In April of 2014, the
circuit court held a final hearing on the DHHR’s motion to terminate and proceeded to
disposition. Ultimately, the circuit court terminated the mother’s parental rights. 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). Upon our review, the Court finds
no error in the circuit court proceeding to disposition without a family case plan being filed or in
terminating the mother’s parental rights.

       We have previously held that

               “[w]here it appears from the record that the process established by the
       Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes
       for the disposition of cases involving children [alleged] to be abused or neglected
       has been substantially disregarded or frustrated, the resulting order . . . will be
       vacated and the case remanded for compliance with that process and entry of an
       appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
       558 S.E.2d 620 (2001).

Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). In discussing family case plans,
this Court has stated that

              “[t]he purpose of the family case plan as set out in W.Va.Code, 49–6D–
       3(a) (1984), is to clearly set forth an organized, realistic method of identifying
       family problems and the logical steps to be used in resolving or lessening these
       problems.” Syl. Pt. 5, State ex rel. Dep’t of Human Services v. Cheryl M., 177
       W.Va. 688, 356 S.E.2d 181 (1987).



                                                 2


Syl. Pt. 2, In re Desarae M., 214 W.Va. 657, 591 S.E.2d 215 (2003). While petitioner is correct
that West Virginia Code §§ 49-6-2(b) and 49-6D-3(a) require a family case plan be filed within
thirty days of the improvement period’s inception, the Court declines to find error under the
specific limited circumstances of this case because a case plan was created and signed by the
parties, and because the mother failed to improve throughout the extended duration of the
proceedings below. The record shows that the case plan required the following of petitioner: (1)
perform parental duties and responsibilities on a daily basis; (2) obtain adequate knowledge to
fulfill caregiving responsibilities and tasks; (3) demonstrate appropriate hygiene and keep the
home sanitary on a daily basis; (4) control anger, make good decisions, control mood (with
medication, if necessary), and form healthy relationships; and (5) demonstrate the ability to
provide basic necessities. As such, it is clear that the mother was provided with a clear set of
goals necessary to achieve reunification with her child.

        Moreover, it is clear that the mother’s lack of improvement was unrelated to any alleged
deficiency in filing a case plan, and instead was a result of her inability to properly care for the
child. Unfortunately, despite extensive services, the mother was unable to substantially correct
the conditions of abuse and neglect in the home such that reunification was appropriate. For
these reasons, the Court finds no due process violation in the circuit court proceeding to
disposition absent a properly filed case plan under the limited circumstances of this case.

         As to termination of the mother’s parental rights, the Court finds no error. As noted
above, the mother was presented with a case plan in order to set forth an organized, realistic
method of identifying and resolving the issues that led to the child’s removal. It is clear that the
mother was aware of parenting deficiencies that needed correcting, including maintaining a
suitable, clean home, and providing appropriate care for the newborn child, yet failed to improve
in these regards. Moreover, in spite of the mother’s participation in specific services, including
parenting education, she failed to apply the education in a way that lessened the conditions of
abuse and neglect in the home. Ultimately, the circuit court found that the mother did not
understand the significance of her child’s special needs and was simply unable to care for her.
While petitioner argues that the circuit court could not make such findings because it was not
aware of the specific terms of her family case plan, the Court finds this argument without merit.
The record is clear that a Child Protective Services (“CPS”) worker testified regarding the terms
of petitioner’s treatment plan and her failures in complying with the terms thereof.

        The circuit court’s findings regarding petitioner’s inability to care for her child were
based upon substantial evidence from petitioner’s service providers establishing that after
extensive services, significant issues with the mother persisted through disposition. Specifically,
the mother exhibited poor personal hygiene that required several visits with the child to be
canceled because the child would become sick from the odor. In fact, the mother’s hygiene was
so severe that she required medical assistance to address the same. Further, the mother failed to
sustain a suitable home for the child. During the proceedings, animal control seized three dogs
from the parents and cited them for animal neglect. Additionally, the parents’ home lacked
plumbing and had terrible odors emanating from within, such that the home was ultimately
condemned. Thereafter, the parents resided in a tent in a relative’s yard, and then moved into the
home of the child’s maternal grandmother. The DHHR noted that the grandmother had



                                                 3


previously had her parental rights to the mother terminated in a separate abuse and neglect
proceeding.

        As such, it is clear that there was sufficient evidence upon which the circuit court could
have found that there was no reasonable likelihood that petitioner could substantially correct the
conditions of abuse and neglect, and that termination of her parental rights was necessary for the
child’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to
terminate parental rights upon these findings. While petitioner argues that the circuit court based
termination entirely upon a finding of untrustworthiness due to her leaving the jurisdiction to
give birth to a second child, it is clear that this was only one factor among many that the circuit
court relied upon to reach its determination. Petitioner argues that it was error to base termination
upon this factor because the DHHR did not move for custody of the child, and because she was
not expressly forbidden from having the child outside the circuit court’s jurisdiction. However,
the Court finds no merit to this argument because the mother’s actions were clearly relevant in
light of her stated reason for giving birth to the child in Utah in order to prevent the DHHR
taking custody of the child upon her birth. For these reasons, under the limited circumstances of
this case, the Court declines to find that the process established for abuse and neglect
proceedings was “substantially disregarded or frustrated” such that vacating the resulting order is
warranted.

       For the foregoing reasons, we find no error in the decision of the circuit court and its
April 23, 2014, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: November 24, 2014

CONCURRED IN BY:

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




                                                 4


