                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS

                                                                                  FILED
In Re: D.A.-1 & D.A.-2                                                          October 21, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
No. 13-0423 (Raleigh County 10-JA-138 & 139)                                   OF WEST VIRGINIA




                                MEMORANDUM DECISION

       Petitioner Father, by counsel Timothy P. Lupardus, appeals the Circuit Court of Raleigh
County’s order entered on March 28, 2013, terminating his parental rights to his children, D.A.-1
and D.A.-2. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by
Angela Alexander Walters, its attorney, filed its response. The guardian ad litem, Mary Beth
Chapman, filed a response on behalf of the children in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in adjudicating him an abusing parent, in
terminating his parental rights to the children, and in not mandating visitation in the event the
children are adopted.

        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.

        The DHHR filed the underlying abuse and neglect petition in April of 2011 by amending
a previously filed petition to include Petitioner Father. The prior petition was brought by
petitioner and the DHHR against the children’s mother. The amended petition alleged that
Petitioner Father stated that he could not “handle these kids by [himself],” and that he
excessively punished D.A.-1, then six years old, by locking her in her room for seven hours and
whipping her with a belt. Petitioner waived a preliminary hearing, and the circuit court ordered
the children into the legal and physical custody of the DHHR. At the adjudicatory hearing on
August 23, 2012, petitioner admitted to leaving D.A.-1 in the room, but stated that he only sent
her to her room for two hours. A child protective services (“CPS”) worker testified that an
appropriate amount of time for “time out” would have been six minutes, based upon D.A.-1’s
age. The circuit court found the confinement and punishment using the belt to be abuse of the
child. The CPS worker further testified that petitioner has mental capacity issues. The circuit

       1
         Because this matter concerns infant children, we follow our traditional practice in cases
involving sensitive facts and use only the parties’ initials. See State v. Edward Charles L., 183
W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990). Because both the children have the initials
D.A., we have identified those children by placing a number after their initials. We also note that
the circuit court case numbers listed above correspond with each child in the style of this case.


                                                1
court granted petitioner an improvement period, but made no finding regarding petitioner’s
capacity, stating that the improvement period would help the court assess his capacity. By order
entered March 28, 2013, following a dispositional hearing, the circuit court terminated
petitioner’s parental rights. At the dispositional hearing, Leonard Andrew Steward, Ph.D.,
testified that petitioner is moderately mentally retarded and did not have the intellectual capacity
to parent the children. The circuit court found that petitioner’s mental incapacity was the basis
for the termination, not his intentional conduct.2 In light of the basis for petitioner’s termination,
the circuit court ordered visitation until permanency has been achieved by adoption or
guardianship. The circuit court found that visitation is not contrary to the best interest of the
children, even if adoption should occur. It is from this 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).

        On appeal, petitioner argues that the basis for finding abuse and neglect for using a belt
and sending D.A.-1 to her room for several hours was in error. Petitioner asserts that the circuit
court found that using a belt is per se evidence of abuse and that the findings regarding the use of
the belt and sending the child to her room were insufficiently supported by evidence. The
testimony by CPS staff who spoke to D.A.-1 regarding the punishments at issue was unrefuted in
the adjudicatory hearing. Additionally, the circuit court considered the evidence in the context of
D.A.-1 being six years old and found that, due to the child’s age, it was abusive to use a belt and
he sent her to her room for two hours or more. Petitioner further argues that he corrected the
issues leading to his being adjudicated an abusive parent and, therefore, it was error to terminate
his parental rights based on his mental incapacity, which he asserts was not part of the original
petition. However, contrary to petitioner’s argument, the original petition alleged that he told a
service provider that “I cannot handle these kids by myself. I need some help.”

         With regard to a parent’s mental incapacity, this Court has provided guidance as follows:

2
  At the dispositional hearing, Jennifer Price, Psy.D., testified that petitioner would have great difficulty living
independently, even without children, and that it would be exceptionally difficult for him to raise two special needs
children.

                                                          2
       Where allegations of neglect are made against parents based on intellectual
       incapacity of such parent(s) and their consequent inability to adequately care for
       their children, termination of rights should occur only after the social services
       system makes a thorough effort to determine whether the parent(s) can adequately
       care for the children with intensive long-term assistance. In such case, however,
       the determination of whether the parents can function with such assistance should
       be made as soon as possible in order to maximize the child(ren)’s chances for a
       permanent placement.

Syl. pt. 4, In re Billy Joe M., 206 W. Va. 1, 521 S.E.2d 173 (1999).

        This Court finds that the circuit court was presented with sufficient evidence for a finding
that the reasonable means available to the DHHR would not accomplish reunification with
petitioner and his children. A review of the record reveals there was no reasonable likelihood that
the conditions of abuse and neglect could be substantially corrected in the near future, due to
petitioner’s mental incapacity. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are
directed to terminate parental rights upon these findings. This Court finds no error in the
termination of petitioner’s parental rights.

        Finally, petitioner argues that the circuit court erred by determining it did not have
authority to mandate post-permanency visitation. The circuit court, however, did not address its
authority in the termination order, but rather found that it was not in the interest of the children to
mandate post-permanency visitation for each of the children due in large part to their young age.
The court did find that post-termination visitation was appropriate. We have held as follows:

       “When parental rights are terminated due to neglect or abuse, the circuit court
       may nevertheless in appropriate cases consider whether continued visitation or
       other contact with the abusing parent is in the best interest of the child. Among
       other things, the circuit court should consider whether a close emotional bond has
       been established between parent and child and the child's wishes, if he or she is of
       appropriate maturity to make such request. The evidence must indicate that such
       visitation or continued contact would not be detrimental to the child's well being
       and would be in the child's best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
       446, 460 S.E.2d 692 (1995).

Syl. Pt. 8, In re Isaiah A., 228 W.Va. 176, 718 S.E.2d 775 (2010). Here, the circuit court did not
find it was in the interest of the children to mandate visitation after permanency. The circuit
court found that it was in the best interest of the child for the adopting court to address post-
permanency visitation when considering adoption, but that at this time it was not against the best
interest of the children to continue visitation, even after adoption. This Court finds that the
circuit court correctly refused to mandate visitation with the children after adoption in order to
avoid interfering with their permanent placement.

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



                                                  3
       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 find no error in the decision of the circuit court and the
termination of parental rights is hereby affirmed.

                                                                                         Affirmed.


ISSUED: October 21, 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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