                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS

                                                                                    FILED
                                                                                   April 16, 2013
In Re: D.K. and C.K.                                                          RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

                                                                                OF WEST VIRGINIA

No. 12-1437 (Kanawha County Nos. 09-JA-126 & 127)

                                 MEMORANDUM DECISION

       Petitioner Father filed this appeal, by counsel L. Thompson Price, from the Circuit Court
of Kanawha County which terminated his parental rights by order entered on November 9, 2012.
The guardian ad litem for the children, Jason Lord, has 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.

       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 August of 2009, the DHHR filed the petition in the instant case. This petition alleged
that Petitioner Father physically and sexually abused the children, domestic violence between the
parents, and deplorable living conditions. Petitioner Father waived his rights to a preliminary
hearing. In April of 2012, the circuit court adjudicated the children as abused and neglected. By
its dispositional order entered in November of 2012, the circuit court terminated Petitioner
Father’s parental rights to both children. It is from this order that Petitioner Father appeals.

        Petitioner Father argues that the circuit court clearly erred when it found that the children
were abused and neglected. Petitioner Father argues that the children recanted statements about
abuse that they previously provided, that their testimony was coached, and that their testimony
was inconsistent. In response, the children’s guardian ad litem and the DHHR both contend that
the circuit court did not err in finding the children as abused and neglected. They argue that no
evidence has been provided to dispute or discredit the children’s testimony. Both also argue that
the psychologist who evaluated the children testified at the adjudicatory hearing that he did not
find the children’s statements incredible, nor did he find that the children had been coached.

       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


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       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 adjudication of the
children as abused and neglected, nor do we find error in the circuit court’s termination of
Petitioner Father’s parental rights. The Court finds that the circuit court was presented with
sufficient evidence upon which it adjudicated the children as abused and neglected, as directed
by West Virginia Code § 49-6-2(c). We also find that the circuit court was presented with
sufficient evidence upon which it based findings 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 parental rights upon such findings.

       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


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       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 cannot
       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).

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


                                                                                       Affirmed.


ISSUED: April 16, 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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