                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



In Re: T.S. & S.A.                                                               FILED
                                                                                October 1, 2013
                                                                            RORY L. PERRY II, CLERK
No. 13-0304 (Kanawha County 11-JA-176 & 11-JA-177)                        SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA



                                MEMORANDUM DECISION

        Petitioner Mother filed this appeal, by counsel Matthew Victor, from a March 13, 2013
order of the Circuit Court of Kanawha County, which terminated her parental rights to her
children. The guardian ad litem for the children, Sandra Bullman, 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 terminating her 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

         In September of 2011, the DHHR filed its petition for abuse and neglect and temporary
emergency custody of the children. The petition alleged that there was ongoing domestic violence
in the home between Petitioner Mother and M.A.1 and illegal drug abuse. The petition also alleges
that S.A. was born with marijuana, benzodiazepine, and Lortab in her system. Finally, the petition
alleges that Petitioner Mother failed at times to provide the children with the necessary food,
clothing, supervision, and housing. By order entered on September 27, 2011, the circuit court
temporarily removed the children, scheduled a preliminary hearing, and ordered the DHHR to
initiate services. Following the preliminary hearing on October 5, 2011, the circuit court granted
Petitioner Mother’s request for the following services: supervised visitation, domestic violence
counseling, family counseling, transportation, and a substance abuse and psychological
evaluation. The circuit court further ordered her to submit to random drug screens. On April 25,
2012, the circuit court held an adjudicatory hearing during which it found that the children were
neglected due to Petitioner Mother’s failure to supply the children with the necessary food,
clothing, shelter, supervision, medical care, or education and because S.A. was born with illegal
drugs in her system. Additionally, the circuit court found that Petitioner Mother was an abusing

       1
        M.A. is the biological father of S.A. The DHHR did not make allegations against T.S.’s
biological father, C.S.

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parent. The circuit court terminated Petitioner Mother’s parental rights by order entered on
March 13, 2013. In terminating Petitioner Mother’s parental rights, the circuit court found that
there was no reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected because Petitioner Mother failed to make any efforts to correct the problems that led to
the filing of the petition and failed to follow through with a reasonable family case plan.

        Petitioner Mother raises two assignments of error. First, Petitioner Mother argues that the
circuit court erred in terminating her parental rights because the DHHR failed to establish a
family case plan or determine what services were necessary to achieve reunification. Second,
Petitioner Mother argues that the circuit court erred in terminating her parental rights because
there was insufficient evidence to warrant termination.

       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
       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).

         Upon our review, the Court finds no error in the circuit court’s termination of Petitioner
Mother’s parental rights. Regarding Petitioner Mother’s first assignment of error, the record
clearly demonstrates that a family case plan was filed on October 2, 2012, setting forth the
services Petitioner Mother was to receive. However, the case plan was not signed by any of the
parties. Timmica Tolliver, a DHHR case worker, testified that Petitioner Mother was offered
parenting and adult life skills, counseling, random drug screens, a psychological evaluation, and
supervised visitations. Ms. Tolliver testified that the plan was developed by the interested parties
and approved by the circuit court during the preliminary hearing. Though Petitioner Mother
received a psychological evaluation and participated in her supervised visitation, Ms. Tolliver
testified that she failed to follow the recommendations made in the psychological evaluation, did
not consistently attend parenting classes, and did not participate in or failed random drug screens.

       While it is true that this Court has stressed the importance of the filing of a case plan on
numerous occasions, we decline to find that the failure to sign the plan in this matter warrants
reversal. As we have held, “‘[t]he purpose of the family case plan . . . is to clearly set forth an

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organized, realistic method of identifying family problems and the logical steps to be used in
resolving or lessening these problems.’ Syl. Pt. 5, in part, State ex rel. W.Va. Dep’t. Of Human
Servs. v. Cheryl M., 177 W.Va. 688, 356 S.E.2d 181 (1987).” Syl. Pt. 3, in part, In re Edward B.,
210 W.Va. 621, 558 S.E.2d 620 (2001). A review of the record clearly shows that a family case
plan was developed and set forth the services Petitioner Mother was to receive. Therefore,
Petitioner Mother was aware of the “logical steps” necessary to resolve the issues of neglect.

         As to her second assignment of error, the Court finds that the circuit court was presented
with sufficient evidence upon which to base its findings 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. West Virginia Code § 49-6-5(b)(3) states
that a circumstance in which there is no reasonable likelihood that the conditions of abuse and
neglect can be substantially corrected includes situations where “[t]he abusing parent . . . [has] not
responded to or followed through with a reasonable family case plan or other rehabilitative efforts
. . . to reduce or prevent the abuse or neglect of the child, as evidenced by the continuation or
insubstantial diminution of conditions which threatened the health, welfare or life of the child.”
For the same reasons explained above, we find no substantial likelihood of correction. Petitioner
Mother began receiving services in September of 2011 and the DHHR filed a copy of the family
case plan. The testimony of a DHHR worker established the Petitioner Mother failed to fully
participate in the family case plan. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts
are directed to terminate parental rights upon these findings.

      For the foregoing reasons, we affirm the circuit court’s order terminating Petitioner
Mother’s parental rights to the children.

                                                                                           Affirmed.

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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