                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: J.R. and D.R.                                                               FILED
                                                                                  June 28, 2013
                                                                             RORY L. PERRY II, CLERK
No. 13-0242 (Ohio County 12-JA-55 & 56)                                    SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA




                                 MEMORANDUM DECISION

         Petitioner Mother, by counsel Amy Pigg Shafer, appeals the Circuit Court of Ohio
County’s order entered on February 15, 2013, terminating her parental rights to J.R. and D.R.
The West Virginia Department of Health and Human Resources (“DHHR”), by Melinda Dugas,
its attorney, filed its response. The guardian ad litem, Joseph J. Moses, filed a response on behalf
of the child in support of the circuit court’s order. Petitioner filed a reply.

        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 alleging an array of issues,
including that Petitioner Mother left J.R. and D.R. in unsafe and/or unsanitary locations and
neglected their physical well-being and hygiene. Specifically, the DHHR alleged that petitioner
allowed an infestation of fleas and head lice and the children did not receive prescribed
medication and medical treatment because petitioner disrupted and prevented therapeutic
services. Additionally, and most troubling, Petitioner Mother moved at least fifteen times
between July of 2010 and August of 2012, and the children were housed with individuals who
have had their own children removed for abuse and neglect, as well as individuals with histories
of drug and alcohol abuse, criminal behavior, and domestic violence. Further, D.R. alleged that
she was sexually abused by petitioner’s father when they lived with him. The petition also
alleged that petitioner emotionally abused the children by telling them she was trying to give
them away. The petition further alleged that aggravated circumstances existed at the time of the
petition, because petitioner had had her parental rights to three children terminated involuntarily
and she voluntarily relinquished parental rights to a fourth child after the DHHR initiated abuse
and neglect proceedings. In August of 2012, the DHHR removed the children from the home due
to these circumstances. At the adjudicatory and evidentiary hearing regarding aggravated
circumstances, the circuit court held that there is clear and convincing evidence that the
conditions constituting abuse and neglect that caused the termination of petitioner’s parental
rights had not been remedied or corrected and that an improvement period was not warranted.



                                                 1

               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 erred in terminating her parental rights
to J.R. and D.R. Petitioner argues that the circuit court improperly shifted the burden of proof to
petitioner by requiring her to show a change in circumstances from her previous terminations.
Petitioner further argues that the DHHR waived its right to assert aggravated circumstances
because it did not raise the argument in an earlier abuse and neglect action regarding the children
at issue here. Petitioner asserts that the circuit court erred in weighing the findings made in prior
petitions too greatly and that the evidence in support of termination was not clear and
convincing. Finally, petitioner argues that the circuit court impermissibly denied her request for
an improvement period.

       This Court has previously held that

       [w]hen an abuse and neglect petition is brought based solely upon a previous
       involuntary termination of parental rights to a sibling pursuant to West Virginia
       Code § 49–6–5b(a)(3) (1998), prior to the lower court's making any disposition
       regarding the petition, it must allow the development of evidence surrounding the
       prior involuntary termination(s) and what actions, if any, the parent(s) have taken
       to remedy the circumstances which led to the prior termination(s).

Syl. Pt. 4, In re George Glen B., 205 W.Va. 435, 518 S.E.2d 863 (1999). Moreover,

       [w]here an abuse and neglect petition is filed based on prior involuntary
       termination(s) of parental rights to a sibling, if such prior involuntary
       termination(s) involved neglect or non-aggravated abuse, the parent(s) may meet
       the statutory standard for receiving an improvement period with appropriate
       conditions, and the court may direct the Department of Health and Human
       Resources to make reasonable efforts to reunify the parent(s) and child. Under
       these circumstances, the court should give due consideration to the types of

                                                 2

       remedial measures in which the parent(s) participated or are currently
       participating and whether the circumstances leading to the prior involuntary
       termination(s) have been remedied.

Syl. Pt. 5, In re George Glen B., 205 W.Va. 435, 518 S.E.2d 863 (1999). In the present matter,
the circuit court found that Petitioner Mother had not corrected the conditions that led to the
termination of her parental rights in the past. Specifically, the circuit court found that allegations
of her children being dirty, inappropriate people living in the home, domestic violence, and
petitioner’s lack of treatment for her own psychological needs and mental illness persist. Based
upon these facts, the circuit court was not clearly erroneous in finding that petitioner failed to
show that she had corrected the conditions giving rise to the prior termination of her parental
rights. Additionally, under West Virginia Code § 49-6-12, the subject parent bears the burden of
proving by clear and convincing evidence that he or she would substantially comply with an
improvement period and the circuit court has the discretion to grant or deny such a motion. This
Court finds no reversible error in the order of the circuit court.

       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.

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 can not
       be found.



                                                  3

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 parental rights is hereby affirmed.

                                                                                      Affirmed.


ISSUED: June 28, 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




                                               4

