                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


                                                                                    FILED
In Re: B.K.                                                                        October 1, 2013
                                                                               RORY L. PERRY II, CLERK
No. 13-0455 (Barbour County 12-JA-4)                                         SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA




                                  MEMORANDUM DECISION

        Petitioner Mother filed this appeal, by counsel Chaelyn Casteel, from the Circuit Court of
Barbour County, which terminated her parental rights by order entered on April 2, 2013. The
guardian ad litem for the child, Karen Johnson, filed a summary response supporting the circuit
court’s order. The Department of Health and Human Resources (“DHHR”), by its attorney Lee
Niezgoda, also filed a summary response in support of the circuit court order. On appeal,
Petitioner Mother argues that the circuit court erred in terminating her parental rights and in
terminating her post-adjudicatory improvement period.

       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 February of 2012, the DHHR and the maternal grandparents filed a joint petition for
abuse and neglect. The petition alleged that Petitioner Mother exposed the child to domestic
violence, created a risk of injury to the child, and was unable to properly care for the child. The
circuit court granted physical custody of the child to the maternal grandparents. In June of 2012,
Petitioner Mother entered into a stipulated adjudication and admitted that her child was in danger
due to her fighting with the biological father and the domestic violence with the maternal
grandmother in the presence of the child. In December of 2012, the circuit court granted
Petitioner Mother a six-month post-adjudicatory period.

        However, in February of 2013, the guardian ad litem filed a motion to revoke Petitioner
Mother’s post-adjudicatory improvement period for failing to benefit from the services, failing a
drug test, and claiming to a service provider that she had done nothing wrong and did not need
services. Following a hearing on the guardian ad litem’s motion, the circuit court terminated
Petitioner Mother’s post-adjudicatory improvement period for failing to comply with the terms
of her improvement plan. In addition, the circuit court held that Petitioner Mother abandoned her
child. The circuit court terminated Petitioner Mother’s parental rights by order entered on April
2, 2013. The circuit court concluded that Petitioner Mother has done nothing to correct her
behavior, failed to visit her child, does not have the capacity to care for her child, and that there

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is no reasonable likelihood that the deficiencies could be substantially corrected in the
foreseeable future. It is from this order that Petitioner Mother 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).

        Petitioner Mother raises two assignments of error on appeal. First, Petitioner Mother
argues that the circuit court erred in terminating her parental rights rather than ordering a less
drastic disposition, such as placing the child with the maternal grandparents. Petitioner asserts
that she has a bond with her child and that it is not in the child’s best interest to terminate her
parental rights. Second, Petitioner Mother argues that the circuit court erred in terminating her
post-adjudicatory improvement period. Petitioner Mother contends that she was willing to
participate in services and expressed her desire to continue services, even if she did not agree
that she needed services.

       Upon our review, the record indicates that the circuit court was presented with sufficient
evidence upon which it based 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. West Virginia Code § 49-6-5(b)(3) states that
a circumstance in which there is no reasonable likelihood that the conditions of abuse and
neglect can be substantially corrected includes situations where

       [t]he abusing parent . . . [has] not responded to or followed through with a
       reasonable family case plan or other rehabilitative efforts . . . to reduce or prevent
       the abuse or neglect of the child, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child.

Petitioner Mother began receiving services as early as July of 2012. Petitioner Mother’s case
plan set forth the following services: adult life skills classes, individualized parenting classes,

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supervised visitation, psychological assessment, and multidisciplinary team meeting attendance.
Following a review hearing in which Petitioner Mother failed a drug test, she was further
required to receive substance abuse treatment. A review of the record supports that Petitioner
Mother failed to comply with the terms of her post-adjudicatory improvement period.
Specifically, she failed to attend supervised visitation with her child, used drugs, and failed to
appear at multidisciplinary team meetings and court proceedings. Pursuant to West Virginia
Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon such findings.

        Second, the Court finds no error in the circuit court’s decision to terminate Petitioner
Mother’s post-adjudicatory improvement period. Pursuant to West Virginia Code § 49-6-12(h),
circuit courts are directed to “terminate any improvement period . . . when the court finds that
respondent has failed to fully participate . . . .” Again, the record reflects that Petitioner Mother
failed to participate in her services during her post-adjudicatory improvement period. Petitioner
Mother did not participate in supervised visitations or have any meaningful contact with the
child, did not attend multidisciplinary team meetings, did not attend court proceedings, did not
participate in counseling, and used drugs. Furthermore, Petitioner Mother moved out of the area.
Accordingly, we find no error by the circuit court in terminating Petitioner Mother’s post­
adjudicatory improvement period.

       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,

       [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

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       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.

                                                                                         Affirmed.

ISSUED: October 1, 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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