                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                  FILED
In Re: L.W., S.R. & S.R.
                                                                               January 12, 2015
                                                                             RORY L. PERRY II, CLERK
No. 14-0855 (Clay County 12-JA-61 through 12-JA-63)                        SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

                              MEMORANDUM DECISION
        Petitioner Mother, by counsel Christopher Moffatt, appeals the Circuit Court of Clay
County’s July 14, 2014, order terminating her parental rights to six-year-old L.W., eight-year-old
S.R., and ten-year-old S.R.. 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 (“guardian”), Kevin Hughart, filed a response on
behalf of the children that supports the circuit court’s order. On appeal, Petitioner Mother argues
that the circuit court erred in terminating her 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 alleging that Petitioner
Mother failed to protect her children and exposed them to domestic violence. In June of 2012,
the circuit court adjudicated Petitioner Mother as an abusive and neglectful parent for exposing
her children to multiple acts of domestic violence. In December of 2012, the circuit court denied
Petitioner Mother’s motion for post-adjudicatory improvement period. Instead, the circuit court
granted Petitioner Mother a one year “post rehabilitation improvement period.”

        By order entered on April 11, 2013, the circuit court accepted Petitioner Mother’s
voluntarily relinquishment of her custodial rights to her children. Further, the circuit court
directed Petitioner Mother to complete a substance abuse evaluation before moving the circuit
court for visitation with her children. In December of 2013, the DHHR moved to modify the
April 11, 2013, dispositional order. The DHHR alleged that Petitioner Mother failed to complete
her substance abuse evaluation and has not had any contact with her children since December of
2012. By order entered January 10, 2014, the circuit court denied the DHHR’s motion, and set an
additional review hearing.

        On June 12, 2014, the circuit court held another hearing on the DHHR’s motion to
modify Petitioner Mother’s dispositional order. The DHHR caseworker testified that Petitioner
Mother had not had contact with her children since December 7, 2012, and failed to complete her
substance abuse evaluation on three separate occasions. The circuit court ultimately terminated
Petitioner Mother’s parental rights because she failed to submit to the substance abuse

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evaluation. Additionally, the circuit court found that Petitioner Mother abandoned her children. 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).

         On appeal, Petitioner Mother argues that the circuit court erred in modifying the
dispositional order and terminating her parental rights. Upon our review of the record, we find no
error or abuse of discretion by the circuit court. West Virginia Code § 49-6-6(a) gives circuit
court’s the discretion to modify a dispositional order “if the [circuit] court finds by clear and
convincing evidence a material change of circumstances and that such modification is in the
child’s best interest.” As stated above, the circuit court heard testimony that Petitioner Mother
failed to complete her substance abuse evaluation on at least three occasions and that she had not
seen her children since December of 2012. Further, Petitioner Mother concedes that she has not
completed her substance abuse evaluation. We have previously stated that “in the context of
abuse and neglect proceedings, the circuit court is the entity charged with weighing the
credibility of witnesses and rendering findings of fact.” In re Emily, 208 W.Va. 325, 339, 540
S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478, 525 S.E.2d
669 (1999)). As such, we have held that “[t]his Court . . . cannot set aside a circuit court’s factual
determinations unless such findings are clearly erroneous.” Id. Upon our review, it is evident that
the circuit court was presented with clear and convincing evidence that it was in the best interest
of the children to modify Petitioner Mother’s dispositional order.

       Petitioner Mother also argues that the circuit court erred in terminating her parental rights
without considering the wishes of her children. This Court finds no merit in Petitioner Mother’s
argument. “[T]he [circuit] court shall give consideration to the wishes of a child fourteen years of
age or older or otherwise of an age of discretion as determined by the court regarding the
permanent termination of parental rights.” W.Va. Code 49-6-5(a)(6)(C). Based upon a review of
the record, it is clear that the circuit court was not required to consider the children’s wishes
because they were only six, eight, and ten years old. Additionally, the record is devoid of any
evidence to show that the children were of an age of discretion. Furthermore, the DHHR is not


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required to make reasonable efforts to preserve the family if the circuit court determines that the
parent has subjected the child to “aggravated circumstances which include, but are not limited to,
abandonment[.]” W.Va. Code § 49-6-5(a)(7)(A). Based on the circumstances of this case, we
find no error to warrant reversal.

       For the foregoing reasons, we find no error in the decision of the circuit court and its July
14, 2014, order is hereby affirmed.

                                                                                         Affirmed.

ISSUED: January 12, 2015

CONCURRED IN BY:

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




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