                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


                                                                                  FILED
In re: A.N. and N.N.-1
                                                                               June 19, 2017
                                                                               RORY L. PERRY II, CLERK
No. 17-0105 (Mercer County 16-JA-071 and 16-JA-072)                          SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Father N.N.-2, by counsel John G. Byrd, appeals the Circuit Court of Mercer
County’s January 11, 2017, order terminating his parental rights to A.N. and N.N.-11 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Michael P.
Cooke, 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 terminating his 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 2016, the DHHR filed an abuse and neglect petition alleging that petitioner
and the mother engaged in domestic violence in the children’s presence and abused and
trafficked drugs in the home. According to the petition, petitioner was arrested for conspiracy
and intent to deliver a controlled substance. The petition also alleged that the children were left
in the care of an inappropriate person while petitioner was incarcerated and he admitted to the
DHHR that he used intravenous drugs in the home. Petitioner thereafter waived his right to a
preliminary hearing.



       1
          Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990). Because petitioner and one of the children share the same
initials, we will refer to the child and petitioner as N.N.-2 and N.N.-1, respectively, throughout
this memorandum decision.




                                                1


        In May of 2016, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the allegations contained in the petition and admitted that the children were abused
and neglected due to his substance abuse. Petitioner requested a post-adjudicatory improvement
period, and the circuit court granted his request. In June of 2016, the circuit court held a review
hearing during which the circuit court was presented with evidence that petitioner “had a few
positive drug screens for [o]piates.” The DHHR recommended that petitioner remain on his
improvement period and continue to submit to random drug screens.

        In December of 2016, the circuit court held a dispositional hearing wherein petitioner
failed to appear but was represented by counsel. A DHHR worker testified that petitioner was
non-compliant with the terms and conditions of his improvement period. According to the
worker, petitioner failed to fully complete adult life skills classes, participate in visitation, and
submit to random drug screens. The worker testified that the “very few drug screens that could
be collected have all been positive for substances.” The worker also described petitioner’s visits
with the children as “sporadic.” Based on the evidence presented, the circuit court determined
that petitioner failed to participate in the proceedings and found that there was no reasonable
likelihood he could substantially correct the conditions of abuse and neglect and terminated his
parental rights to the children by order dated January 11, 2017.2 It is from that order that
petitioner appeals.

         The Court has previously established the following standard of review in cases such as
these:

                 “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).

         2
         Petitioner’s parental rights to both children were terminated below. The guardian states
that both children were placed in foster care and the permanency plan is adoption into that home.
According to the guardian, M.M., the mother of the children, was initially placed on an
improvement period and the permanency plan for the children was reunification. Because the
mother failed to comply with the terms and conditions of her improvement period, the DHHR is
now seeking termination of her parental rights to both children.




                                                  2


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 in the circuit court’s termination of petitioner’s parental rights.

        Petitioner’s sole argument on appeal is that the circuit court erred in terminating his
parental rights to the children when the least-restrictive alternative was to terminate his custodial
rights. We disagree. West Virginia Code § 49-4-604(b)(6) provides that a circuit court is directed
to terminate parental rights upon findings that there is “no reasonable likelihood that the
conditions of neglect or abuse can be substantially corrected in the near future” and that
termination is necessary for the children’s welfare. West Virginia Code § 49-4-604(c)(3)
provides that “no reasonable likelihood that conditions of abuse or neglect can be substantially
corrected” exists when “[t]he abusing parent . . . ha[s] not responded to or followed through with
a reasonable family case plan or other rehabilitative efforts[.]”3


       3
        Finally, because the case is still pending against A.N. and N.N.-1’s mother, 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.

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. 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] [now West Virginia Code § 49-4­
       604(b)(6)], 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.


                                                                                     (continued . . .)

                                                 3


        In this case, it is undisputed that petitioner failed to comply with the terms of his
improvement period. He failed to participate in adult life skills classes, failed to regularly visit
with his children, and tested positive for controlled substances on multiple occasions. Given
petitioner’s complete lack of improvement during these lengthy proceedings, we find no error in
the circuit court’s termination order. The circuit court properly found that petitioner was not
reasonably likely to substantially correct the conditions of abuse and neglect in the near future,
and it is clear from the record on appeal that the children’s welfare necessitated the termination
of petitioner’s parental rights. Accordingly, we find no error below.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 11, 2017, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: June 19, 2017


CONCURRED IN BY:

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




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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