                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                   FILED
In Re: D.B.                                                                     November 26, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
No. 13-0654 (Roane County 11-JA-17)
                                                                               OF WEST VIRGINIA




                                 MEMORANDUM DECISION

        Petitioner Mother filed this appeal, by counsel Betty Clark Gregory, from the Circuit
Court of Roane County, which terminated her custodial rights and visitation rights to the subject
child by order entered on May 29, 2013. The guardian ad litem for the child, Anita Harold
Ashley, 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 argues that the circuit court erred in finding that
she had not substantially complied with her improvement period and in terminating her custodial
rights to D.B. without awarding 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

         In October of 2011, the DHHR filed the abuse and neglect petition in the instant case.
The petition alleged that petitioner supported her drug addiction by using food stamps, child
support, and other public assistance that her children, B.F. and D.B., received each month.1 At
the filing of the petition, B.F. was eleven years old and D.B. was thirteen years old. While her
children primarily lived with petitioner’s mother, petitioner came by to see them about once a
month to collect these benefits, leaving petitioner’s mother to support the children on her own.
Throughout the course of this case, the circuit court granted petitioner an improvement period
with orders to comply with random drug screens, complete in-patient substance abuse treatment,
attend parenting classes, participate in counseling, secure housing, and complete a psychological
evaluation. Although petitioner participated in some of the services, she failed to fully comply
with the ordered terms and conditions of her improvement period. For instance, petitioner’s
Child Protective Services (“CPS”) worker testified that petitioner failed to complete all of her
ordered drug screens and once she completed her drug treatment program, she did not stay in
aftercare services or adhere to her recovery plan. Petitioner’s CPS worker also testified that, on
another occasion, a straw that appeared to be used for snorting medication was found on
petitioner. In May of 2013, the circuit court entered its order that retained petitioner’s parental

1
 B.F. and D.B. are half-siblings. Petitioner only challenges her termination of custodial rights
and visitation rights to D.B.

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rights, but terminated her custodial rights, to D.B. and B.F. The order reflected petitioner’s
wishes for B.F. to be allowed placement under a legal guardianship with her foster parents. The
order further terminated any further visits between petitioner and both of her children. From this
order, petitioner now appeals.

       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).

        Petitioner’s appeal concerns child D.B. only. First, petitioner argues that the circuit court
erred in (1) finding that she had not substantially completed the requirements of her
improvement period and (2) finding there was no reasonable likelihood that conditions of abuse
and neglect could be corrected. She asserts that she attended drug treatment and complied with
services offered by the DHHR. Upon our review of the record, we find no error or abuse of
discretion by the circuit court. West Virginia Code § 49-6-5(b)(3) provides that a parent’s failure
to follow through with a reasonable family case plan constitutes circumstances in which there is
no reasonable likelihood that conditions of neglect or abuse can be substantially corrected. The
record reflects that petitioner failed to take full advantage of the services offered to her. At a
hearing in March of 2013, for instance, petitioner’s CPS worker testified that petitioner had
inconsistent drug screens, never secured her own housing, and that petitioner’s mother reported
that petitioner was crushing and snorting pills after her release from an in-patient drug treatment
program. The circuit court’s dispositional order entered in May of 2013 reflects that petitioner
made no further changes since the March of 2013 hearing.

         Petitioner also argues that the circuit court erred in terminating her custodial and
visitation rights to D.B., contrary to D.B.’s wishes. “‘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., 231 W.Va. 44, 743 S.E.2d 352 (2013). Our
review of the record reflects that petitioner resumed her use of drugs after attending treatment.
Petitioner testified at the March of 2013 hearing and expressed that she was no longer abusing
drugs. However, that CPS worker testified that after petitioner’s treatment, petitioner’s mother


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reported that petitioner was crushing and snorting pills, that B.F. expressed concerns that
petitioner was using drugs again, and that petitioner was not participating in post-treatment
program services. Petitioner claimed that her inconsistent drug screens were due to her various
medications, yet she never provided a list of her prescribed medications in support of this
assertion. She further denied any use of drugs or responsibility for any drug paraphernalia. 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 children’s welfare. Pursuant to West
Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate custodial rights upon such
findings.

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



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       For the foregoing reasons, we affirm.

                                                   Affirmed.

ISSUED: November 26, 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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