                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


                                                                                  FILED
In Re: J.M.                                                                      October 1, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
No. 13-0269 (Mingo County 12-JA-34)                                            OF WEST VIRGINIA




                                 MEMORANDUM DECISION

         Petitioner Mother filed this appeal, by counsel Kathryn Cisco-Sturgell, from the Circuit
Court of Mingo County, which terminated her parental rights to the subject child, J.M., by its
order entered on February 12, 2013. The guardian ad litem for the child, Diana Carter Wiedel,
filed a response supporting the circuit court’s order. The Department of Health and Human
Resources (“DHHR”), by its attorney Michael L. Jackson, also filed a response in support of the
circuit court’s order. Petitioner contends that the circuit court erroneously terminated her parental
rights because the child is placed with a relative and petitioner was awarded post-termination
visitation.

       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 May of 2011, the DHHR filed the petition initiating this abuse and neglect case after it
received a phone call from law enforcement that the subject child was in the care of his
intoxicated great-grandmother. Upon arriving at the great-grandmother’s home, the DHHR found
the great-grandmother to be severely intoxicated and unable to effectively communicate due to
her extreme belligerence and slurred speech. The child, nearly four years old at the time, reported
that his great-grandmother had been drinking for two days and had let him try to smoke a
cigarette. When contacted by authorities, petitioner indicated that she did not know how the child
came to be at the great-grandmother’s home or how long he had been there.

        Throughout the course of these proceedings, petitioner was linked with services, but
refused to enter into any inpatient substance abuse treatment programs. Petitioner denied having
any issues with substance abuse, yet acknowledged that she had three convictions for driving
under the influence. Following the dispositional hearing, the circuit court terminated petitioner’s
parental rights but granted post-termination supervised visitation under the supervision of the
child’s cousin, with whom he now resides and where adoption is anticipated. From the circuit
court’s termination order, petitioner appeals.

       The Court has previously established the following standard of review:



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       “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’s sole argument on appeal is that the circuit court erroneously terminated her
parental rights because the child has been placed with a relative and the circuit court granted
petitioner supervised visitation with the child. Petitioner further asserts that because she had
begun to comply with the circuit court’s orders, she was on the road to recovery and, therefore,
the DHHR’s evidence did not meet its burden of showing by clear and convincing proof that
petitioner would be unable to protect or rear her own child. Both the guardian ad litem and the
DHHR disagree and have responded in support of the circuit court’s termination order.

         Upon our review of the record, we find no error or abuse of discretion in the termination
of 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., -- W.Va. --, 743 S.E.2d 352 (2013). The record supports the
circuit court’s thorough findings that petitioner failed to benefit from the services provided to her
and that the conditions of abuse and neglect necessitated the child’s removal from the home. For
instance, petitioner failed to enter inpatient substance abuse treatment and continued to drink
alcohol regularly throughout the case. Additionally, shortly before her dispositional hearing,
petitioner was incarcerated for a few days in Kentucky for her failure to appear at a hearing. The
record and the circuit court’s findings support its 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 child’s welfare. Pursuant to West Virginia
Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon such findings.

       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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