                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS

                                                                                 FILED
                                                                                October 1, 2013
In Re: A.F., P.F. and J.F.                                                  RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA
No. 13-0401 (Logan County 10-JA-21, 10-JA-22 and 10-JA-23)


                                 MEMORANDUM DECISION

        Petitioner Mother filed this appeal, by counsel Donna Pratt, from an April 9, 2013 order
of the Circuit Court of Logan County, which terminated her parental rights to A.F., P.F. and J.F.
The guardian ad litem for the children, Mark Hobbs, filed a response supporting the circuit
court’s order. The Department of Health and Human Resources (“DHHR”), by its attorney
Michael Jackson, filed a summary response in support of the circuit court order. On appeal,
Petitioner Mother argues that the circuit court erred in denying her an improvement period,
denying her visitation, and delaying disposition.

       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 March of 2010, the DHHR filed its petition for abuse and neglect and temporary
emergency custody of the children. The petition alleged that the children witnessed their father
snort J.F.’s medication, and that the father committed severe sexual abuse against P.F. The
amended petition alleged additional acts of sexual abuse and that J.F. had informed Petitioner
Mother about the situation. The circuit court found that Petitioner Mother knew about the sexual
abuse and failed to protect the children. In terminating Petitioner Mother’s parental rights, the
circuit court found that aggravating circumstances existed and there was no reasonable likelihood
that the conditions of abuse and neglect could be substantially corrected. The circuit court also
denied Petitioner Mother any visitation with the 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,

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       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. First, she argues that the circuit court
erred in denying her an improvement period because she proved she was willing to participate in
any services or counseling offered by the DHHR. Second, Petitioner Mother argues that the
circuit court failed to make specific rulings and findings when it denied her visitation throughout
the case, and that the circuit court erred in denying her any visitation because she was not
adjudicated as a neglectful parent until five months after the initial petition was filed and did not
have her parental rights terminated for another fifteen months. The DHHR and the children’s
guardian ad litem support the circuit court’s termination of Petitioner Mother’s parental rights.

        First, we address Petitioner Mother’s argument that the circuit court erred in denying her
an improvement period. In order to receive an improvement period, a parent must show that she
“is likely to fully participate in the improvement period . . . .” West Virginia Code § 49-6­
12(b)(2). West Virginia Code § 49-6-5(a)(7)(A) states that the DHHR is not required to make
reasonable efforts toward reunification if the court finds that the parent has subjected the child to
aggravated circumstances, including sexual abuse. Finally, this Court has held that “‘courts are
not required to exhaust every speculative possibility of parental improvement . . . where it
appears that the welfare of the child will be seriously threatened . . . .’ Syl. Pt. 1, in part, In re
R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syl. Pt. 4, in part, In re Cecil T., 228 W.Va. 89,
717 S.E.2d 873 (2011). The record shows P.F. was sexually abused and that Petitioner Mother
had knowledge of the sexual abuse yet failed to take appropriate measures to protect the children.
Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental
rights upon such findings. Thus, this Court finds no error in the termination of Petitioner
Mother’s parental rights without an improvement period.

         We also find no error in the circuit court’s denial of Petitioner Mother’s right to
visitation. After terminating parental rights, a circuit court may grant post-termination visitation
if it considers that such a relationship is in the children’s best interest and if it would not
unreasonably interfere with their permanent placement. See State ex rel. Amy M. v. Kaufman,
196 W.Va. 251, 260, 470 S.E.2d 205, 214 (1996). Our review of the record supports the circuit
court’s decision to deny Petitioner Mother post-termination visitation with her children. The
circuit court properly considered the history and circumstances of the case and the best interests
of the children.



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       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:

       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 affirm.

                                                                                         Affirmed.




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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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