                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


                                                                                FILED
In Re: J.M.                                                                     April 16, 2013
                                                                           RORY L. PERRY II, CLERK
                                                                         SUPREME COURT OF APPEALS
No. 12-1434 (Grant County 12-JA-19)                                          OF WEST VIRGINIA


                                MEMORANDUM DECISION

    Petitioner Mother’s appeal, by counsel Lauren M. Wilson, arises from the Circuit Court of
Grant County, wherein her parental rights were terminated by order entered on November 5,
2012. The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
A. Niezgoda, has filed its response. The guardian ad litem, Patricia L. Kotchek, has filed a
response on behalf of the children.

       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.

        On July 19, 2012, maternal grandmother of J.M., was appointed legal guardian to J.M. On
July 30, 2012, the DHHR filed a petition alleging that J.M. was abused or neglected by both
maternal grandmother and Petitioner Mother. The abuse or neglect allegations against maternal
Grandmother were based on felony convictions that she and her husband received that were not
known to the court when maternal grandmother was granted guardianship. On August 9, 2012,
Petitioner Mother waived her right to a preliminary hearing and, after the hearing, alleged to the
guardian ad litem that maternal grandmother had recently used drugs and engaged in domestic
violence in front of J.M. Based on this information, the circuit court removed J.M. from the home
of maternal grandmother and into the care of the DHHR for placement into a foster home. On
September 19, 2012, Petitioner Mother failed to attend her adjudicatory hearing and she was
adjudicated abusive, based on her habitual drug use, having no stable home or income, and the
exposure the child had to domestic violence in her presence. Petitioner moved for an
improvement period but failed to attend either the hearing to review the case plan or the
dispositional hearing. The circuit court then terminated Petitioner Mother’s parental rights.

       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

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       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).

        On appeal, Petitioner Mother argues that the initial grant of guardianship to maternal
grandmother caused the petition against Petitioner Mother to be filed, and therefore led to the
termination of her parental rights. Petitioner Mother argues that the court erred in granting
maternal grandmother guardianship rights because of the felony convictions she and her husband
received. The DHHR does not dispute that it was a mistake to grant maternal grandmother
guardianship, but responds that 1) Petitioner Mother left J.M. with maternal grandmother and
never objected when maternal grandmother moved for guardianship, 2) Petitioner Mother
admitted current and past neglect of J.M. to DHHR staff, and 3) Petitioner Mother did not
participate in the multi-disciplinary team process and did not attend several hearings, including
the hearing on her motion for an improvement period. The guardian agrees with the DHHR, and
states that Petitioner Mother “has not given priority to the child either before the commencement
of this case or during this case.”

        It is clear from the record that there is independent support for petitioner’s parental rights
to be terminated, based on her lack of involvement in the case and her inability to provide a stable
home environment for J.M. This Court has held that “‘[c]ourts 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.

       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.



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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 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 cannot
       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 find no error in the decision of the circuit court, and the
termination of petitioner’s parental rights is hereby affirmed.

                                                                                        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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