                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                 FILED
In Re: C.M.                                                                     October 1, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
No. 13-0134 (Webster County 11-JA-48)
                                                                              OF WEST VIRGINIA




                                 MEMORANDUM DECISION

        Petitioner Mother, by counsel Howard J. Blyler, appeals the Circuit Court of Webster
County’s order entered on November 20, 2012, terminating her custodial rights to C.M. The
West Virginia Department of Health and Human Resources (“DHHR”), by Charlene A.
Vaughan, its attorney, filed its response. The guardian ad litem, Michael W. Asbury Jr., filed a
response on behalf of the child in support of the circuit court’s order. On appeal, petitioner
argues that the circuit court erred in terminating her custodial rights to C.M.

        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.

         The DHHR filed the underlying abuse and neglect petition based on the condition of
petitioner’s home, issues with C.M.’s hygiene, and a prior abuse and neglect petition filed
against petitioner in October of 2003 involving similar circumstances. Petitioner waived a
preliminary hearing and the circuit court ordered C.M. into the legal and physical custody of the
DHHR, while allowing petitioner and her husband supervised visitation. At the adjudicatory
hearing in October of 2011, petitioner admitted to the allegations in the petition of unsanitary
conditions in the home and did not object to the circuit court taking judicial notice of the prior
abuse and neglect petition. At the first dispositional hearing in December of 2011, petitioner
called C.M. to testify, but the circuit court sustained the guardian’s objection that C.M. suffers
from migraine headaches and that testifying could trigger such a headache. At a subsequent
dispositional hearing, a psychiatrist testified that due to petitioner’s psychiatric condition,
petitioner would only be able to maintain the living conditions at her home with professional
maintenance services to assist her. At the same hearing, the DHHR testified that they are unable
to provide such services. By order entered November 20, 2012, following several dispositional
hearings, the circuit court terminated petitioner’s custodial rights and granted her unsupervised
visitation. The circuit court found that, while C.M. wished to return to Petitioner Mother and her
husband and had a strong bond to them, C.M. suffered significant stress as a result of her hygiene
and other issues. The circuit court further found that, while petitioner has some economic
limitations, the parents had the ability to provide a fit and suitable home and did not do so. In
light of petitioner’s previous abuse and neglect proceedings, the circuit court found that there are
no reasonable grounds to believe that petitioner and her husband can or will substantially correct

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the circumstances of abuse and neglect within the reasonably foreseeable future. The circuit
court ordered that petitioner have unsupervised visitation with C.M. every other weekend for six
hours, provided the parents maintain utilities and heat, and the home is “fit, clean and suitable.”
Petitioner appeals the November of 2012 order terminating her custodial rights, seeking to bring
C.M. back into her home.

       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).

        On appeal, petitioner argues that the circuit court should have permitted C.M. to testify
regarding her preferences for placement and that it erred in finding that petitioner could not
maintain a safe and suitable home for C.M. Rule 8 of the West Virginia Rules of Procedures for
Child Abuse and Neglect Proceedings establishes a rebuttable presumption that the potential
psychological harm to the child outweighs the necessity of the child’s testimony and allows the
circuit court to exclude such testimony if

       (A) the equivalent evidence can be procured through other reasonable efforts; (B)
       the child’s testimony is not more probative on the issue than the other forms of
       evidence presented; and (C) the general purposes of these rules and the interest of
       justice will best be served by the exclusion of the child's testimony.

       Further,

       “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, and this is particularly applicable to children under the age of three
       years who are more susceptible to illness, need consistent close interaction with
       fully committed adults, and are likely to have their emotional and physical
       development retarded by numerous placements.” Syl. Pt. 1, in part, In re R.J.M.,
       164 W.Va. 496, 266 S.E.2d 114 (1980).



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Syl. Pt. 4, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

        This Court finds that evidence equivalent to C.M.’s testimony was already procured.
Specifically, the circuit court was already aware of the bond between C.M. and petitioner, as
well as the child’s desire to return to petitioner’s home. The circuit court specifically found that
Petitioner Mother’s neglect of C.M. was based upon her failure to maintain a suitable home and
that at the time of the petition the home was in “deplorable and subhuman conditions.” The
circuit court found that C.M.’s hygiene problems and other issues led to significant stress for her,
due to her peers not wanting to interact with her.

       This Court also finds that the circuit court was presented with sufficient evidence upon
which it based its findings that there were no reasonable grounds to believe that conditions of
abuse and neglect could be substantially corrected in the near future and that termination of
custodial rights was necessary for the child’s welfare. Petitioner has a lengthy history of failing
to maintain sanitary conditions in her home, and the harm it caused C.M. is thoroughly
discussed. Pursuant to West Virginia Code § 49-6-5(a)(6), the circuit court is required to
terminate custodial rights upon such findings.

       For the foregoing reasons, we find no error in the decision of the circuit court and the
termination of custodial rights is hereby affirmed.

                                                                                         Affirmed.


ISSUED: October 1, 2013


CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:

Justice Menis E. Ketchum




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