                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS
                                                                                   FILED
                                                                                   April 16, 2013
In Re: D.T. and D.T., III                                                     RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
No. 12-1268 (Harrison County 10-JA-88 & 89)


                                 MEMORANDUM DECISION

        Petitioner Mother filed this appeal, by counsel Julie N. Garvin, from the Circuit Court of
Harrison County which ordered permanent placement of the children with their biological father,
entered on October 2, 2012. The guardian ad litem for the children, Terri L. Tichenor, has filed a
response not contesting the circuit court’s order. The Department of Health and Human
Resources (“DHHR”), by its attorney Lee A. Niezgoda, has filed a response supporting the
circuit court’s order. The children’s biological father, by counsel Vanessa A. Welch, has filed a
response requesting continued placement of his children with him.

       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 November of 2010, the DHHR filed the initial petition of the abuse and neglect
proceedings below. The petition contained allegations of the parents’ domestic violence in the
children’s presence, as well as Petitioner Mother’s intoxication in the children’s presence. The
DHHR later filed an amended petition to include other incidents in which the children were
exposed to their parents’ domestic violence and Petitioner Mother’s substance abuse. Throughout
the course of these proceedings, the circuit court granted both parents improvement periods and
extensions to these improvement periods. After the final hearing, the circuit court found that
Petitioner Mother continued to test positive for drugs or produce diluted drug test results,
continued to deny her drug problems, and, overall, failed to progress in her improvement period.
By its order entered in October of 2012, the circuit court dismissed the father from the petition.
Under this same order, it did not terminate Petitioner Mother’s parental rights, but placed the
children in their father’s care and custody under West Virginia Code § 49-6-5(a)(5). It is from
this order that Petitioner Mother appeals.

        Petitioner Mother first argues that the circuit court erred in ordering a disposition under
West Virginia Code § 49-6-5(a)(5) when she showed by clear and convincing evidence that she
was presently willing and able to provide adequately for the children’s needs with the assistance
and continued terms of supervision. Second, Petitioner Mother argues that the circuit court erred
in requiring her to perform additional services and treatment prior to petitioning the circuit court
to modify the alternative disposition. Petitioner Mother argues that the circuit court should have


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granted her an alternative disposition under West Virginia Code § 49-6-5(a)(4) in order for her to
continue services and treatment. The children’s guardian ad litem, the children’s father, and the
DHHR all respond and argue either in support of the circuit court’s order or without contest to
the circuit court’s order. All respondents highlight that, despite over a year and a half of
improvement periods, Petitioner Mother failed to make any meaningful changes. All of the
respondents assert that, throughout the case, Petitioner Mother continued to test positive for
drugs, evaded calls from her caseworkers to submit to random drug screens, and never
acknowledged her issues with substance abuse. The children’s guardian ad litem argues that
Petitioner Mother presented herself consistently as the victim and failed to gain the necessary
skills or judgment from her services. The DHHR asserts that the circuit court was merciful to
Petitioner Mother in affording her the alternative disposition under West Virginia Code § 49-6­
5(a)(5) rather than terminating her parental rights to the subject children.

       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 with the circuit court’s decision to permanently
place the children with their biological father under West Virginia Code § 49-6-5(a)(5), rather
than order an alternative disposition under West Virginia Code § 49-6-5(a)(4). A review of the
record, particularly the transcript for the July 18, 2012, hearing, reflects that Petitioner Mother
failed to show improvement throughout this case. For instance, Denise Wagner of Well Tree
testified of a visit she supervised between Petitioner Mother and her children in March of 2012.
Ms. Wagner testified that Petitioner Mother appeared lethargic and spoke with slurred speech.
Ms. Wagner further testified that, by the end of the three-hour visit, Petitioner Mother’s
condition worsened and Petitioner Mother began nodding off to sleep. Pursuant to West Virginia
Code § 49-6-5(a), circuit courts are directed to adhere to the provided sequence in determining
dispositions and, if it proceeds under subsection (5), shall state its findings to support this
determination as outlined in West Virginia Code §§ 49-6-5(a)(5)(A) through (D). Our review
indicates that the circuit court was presented with sufficient evidence upon which it determined
that the children’s placement with the father, without termination of Petitioner Mother’s parental
rights, would be in the children’s best interests and appropriate under the circumstances.


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      For the foregoing reasons, we affirm the circuit court’s decision ordering permanent
placement of the children with their father pursuant to West Virginia Code § 49-6-5(a)(5).


                                                                                Affirmed.


ISSUED: April 16, 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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