                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                        FILED
                                                                                     January 14, 2013
In re: A.S.                                                                       RORY L. PERRY II, CLERK

                                                                                SUPREME COURT OF APPEALS

                                                                                    OF WEST VIRGINIA

No. 12-1029 (Barbour County 11-JA-15)

                                 MEMORANDUM DECISION

       Petitioner Father, by counsel Megan M. Allender, appeals the Circuit Court of Barbour
County’s order entered on August 9, 2012, terminating his parental rights. The guardian ad litem,
Karen Hill Johnson, has filed her response on behalf of the child. The West Virginia Department
of Health and Human Resources (“DHHR”), by Lee Niezgoda, its attorney, has filed its response.

       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 Revised Rules of Appellate
Procedure.

        The abuse and neglect action was filed after both parents filed domestic violence petitions
against one another. The child was removed from the home based on the allegations of domestic
violence. During the pendency of the case, petitioner was incarcerated on unrelated charges;
therefore, the circuit court held his request for an improvement period in abeyance. Once he was
released, petitioner was granted an improvement period after he was adjudicated as abusing and
neglectful. However, he failed to comply with the same, as he fled the jurisdiction while he was a
participant in the Barbour County Corrections program; failed to appear for drug testing; and
abandoned his child. Petitioner Father’s parental rights were then terminated based on these
findings.

       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


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       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 Father argues that the circuit court erred in finding that imminent
danger existed at the time the petition was filed and that the child was illegally removed from the
home. Petitioner argues that a petition could have been filed regarding the domestic violence in
the home without removing the child since the parents were not living together at the time, thus
eliminating the risk of harm to the child. Moreover, Respondent Mother later testified that she had
falsified part of the information in the domestic violence petition. Petitioner next argues that the
circuit court erred in terminating his parental rights, as it was not necessary to choose the most
drastic of all possible dispositions.

         The guardian responds in favor of the removal and termination of parental rights, arguing
first that each parent had admitted to domestic violence in the home with the child present, which
shows that imminent danger to the child did exist. The guardian next argues that the termination
was proper, as Petitioner Father did not successfully complete his improvement period, fled the
jurisdiction from a pending criminal case in Barbour County, and failed to complete drug testing.
The DHHR also concurs in the removal and termination of parental rights. The DHHR notes that
within a short period of time, the parents were living together again, thus showing that the child
was in imminent danger based on the domestic violence between the parents. Further, the DHHR
argues that termination was in the best interest of the child.

        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). This Court finds that the circuit
court was presented with sufficient evidence upon which it could have found that that there was
no reasonable likelihood that the 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 these
findings. Likewise, this Court finds no error in the removal of the child based on imminent danger
relating to the pattern of domestic violence in the home.

       This Court reminds the circuit court of its duty to establish permanency for the child. 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.



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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 child
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, the circuit court’s order terminating petitioner’s parental rights
is hereby affirmed.

                                                                                          Affirmed.


ISSUED: January 14, 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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