                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: D.C., M.C., and K.C.                                                         FILED
                                                                                   March 31, 2014
                                                                               RORY L. PERRY II, CLERK
No. 13-1039 (Marshall County 13-JA-4, 13-JA-5, and 13-JA-6)                  SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                               MEMORANDUM DECISION
        Petitioner Father filed this appeal by his counsel, Gerald G. Jacovetty, Jr. His appeal
arises from the Circuit Court of Marshall County, which terminated his parental rights to the
subject children by order entered on September 16, 2013. The guardian ad litem for the children,
W. Howard Klatt, filed a response in support of the circuit court’s order. The Department of
Health and Human Resources (“DHHR”), by its attorney, Lee A. Niezgoda, also filed a response
in support of the circuit court’s order. Petitioner argues that the circuit court erred in terminating
his parental rights and in not continuing his 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In April of 2013, the DHHR filed a petition alleging abuse and neglect against the
children’s parents. The petition alleged that petitioner injected drugs while in the presence of
M.C., that petitioner caused non-accidental physical trauma to M.C., that drugs and drug
paraphernalia were within reach of the children at home, and that the home was in deplorable
condition. For instance, the floors were covered with trash and smelled of mildew, stacks of dirty
plates were piled in the kitchen counter and sink, and the children were half-dressed and filthy.
At adjudication in May of 2013, both parents stipulated to the allegations in the petition and the
circuit court adjudicated them as abusing parents. Petitioner’s motion for a post-adjudicatory
improvement period was granted on the condition that petitioner fully participate with the terms
of the improvement period.

        Within approximately two months, the DHHR filed a motion and supplemental motion to
revoke petitioner’s improvement period. The DHHR’s original motion alleged that petitioner had
cancelled and failed to show up for parenting services with Home Base and had failed to
maintain appointments with the Day Report Center. The DHHR’s supplemental motion alleged
that petitioner failed to present himself for random drug testing. The circuit court held a hearing
on this motion in August of 2013, but neither parent contested the DHHR’s motion for
revocation. The circuit court revoked petitioner’s improvement period and the case was
scheduled for disposition.


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        Following the dispositional hearing in September of 2013, the circuit court found that
neither parent was willing or able to provide adequately for the children’s needs and that there
was no reasonable likelihood that the conditions of neglect and abuse could be substantially
corrected in the near future. The circuit court terminated both parents’ parental rights to the
children. From this order, petitioner appeals.

       This 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 first argues that the circuit court erred in terminating his parental rights.
Petitioner asserts that he was not provided the opportunity to participate in various services that
were required during the improvement period. Petitioner also asserts that he was employed at the
time his improvement period was revoked and was making efforts to substantially correct the
problems that led to the filing of the petition. From our review of the record, we find no error in
the circuit court’s decision to terminate petitioner’s parental rights. “‘Although parents have
substantial rights that must be protected, the primary goal in cases involving abuse and neglect,
as in all family law matters, must be the health and welfare of the children.’ Syl. Pt. 3, In re
Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W.Va. 44, 743
S.E.2d 352 (2013). Under West Virginia Code § 49-6-5(b)(3), circumstances in which a parent
fails to respond to rehabilitative efforts are considered those in which no reasonable likelihood
that the conditions of neglect or abuse can be substantially corrected. The record reveals that
petitioner missed appointments for services during his improvement period and failed to
participate in the required random drug testing. This evidence was sufficient to support the
circuit court’s findings and conclusions 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 children’s welfare. Pursuant to West Virginia Code § 49-6­
5(a)(6), circuit courts are directed to terminate parental rights upon such findings.

       Next, petitioner argues that the circuit court erred in revoking his post-adjudicatory
improvement period. Pursuant to West Virginia Code § 49-6-12(f), after a circuit court grants a
parent an improvement period, the DHHR shall monitor the parent’s progress in the


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improvement period. If the parent fails to participate in any mandated services, the DHHR shall
initiate action to notify the circuit court of this failure. Subsequently, if the DHHR demonstrates
that the parent has failed to participate in any provision of the improvement period, the circuit
court shall terminate the parent’s improvement period. The record includes a copy of the
DHHR’s motion and supplemental motion to revoke petitioner’s improvement period, which
alleged petitioner’s noncompliance with the terms set forth in his improvement period. The
circuit court’s order regarding this motion found that petitioner did not contest the DHHR’s
motion. Moreover, as previously noted, it is undisputed that petitioner missed appointments with
services. Therefore, we find no error in the revocation of petitioner’s improvement period.

       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 the
following:

       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).



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       For the foregoing reasons, we affirm.

                                                   Affirmed.


ISSUED: March 31, 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




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