                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



In Re: J.M., J.M., and C.M.                                                        FILED
                                                                                January 14, 2013
                                                                             RORY L. PERRY II, CLERK
No. 12-0901 (Calhoun County 11-JA-40, 41 & 42)                             SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

                                 MEMORANDUM DECISION

       Petitioner Father files this appeal, by counsel Betty Clark Gregory, from the Circuit Court
of Calhoun County, which terminated Petitioner Father’s parental rights to his children by order
entered on July 26, 2012. The guardian ad litem for the children, Tony Morgan, has filed a
response supporting the circuit court’s order. The Department of Health and Human Resources
(“DHHR”), by its attorney Lee Niezgoda, also filed a response in support of termination.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented in the parties’ written briefs and the record, 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 Revised Rules of Appellate Procedure.

        DHHR filed the abuse and neglect petition in the instant case in November of 2011,
based on allegations that the children were living in unsafe and unsanitary conditions, that they
witnessed domestic violence in the home, and that they had easy access to drug paraphernalia in
the home. At the adjudicatory hearing, Petitioner Father admitted to the allegations in the
petition. He orally requested an improvement period in early May of 2012, and the circuit court
permitted him to file a written motion on this request and held a hearing on this motion at the
disposition in mid-May of 2012. At this hearing, Petitioner Father’s motion for an improvement
period was denied after the circuit court found that petitioner failed to submit to any drug
screens, failed to participate in visits with his children since March of 2012, and had not
participated in any other services since February of 2012. The circuit court terminated Petitioner
Father’s parental rights by order entered in July of 2012. The mother’s parental rights were also
terminated. Petitioner Father 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


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       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 Father argues the circuit court erred in not holding a timely hearing and not
making a timely ruling on his request for an improvement period. He argues that the circuit court
did not conduct a hearing on his request until more than four months after his first request, which
caused him to be confused as to what was expected of him and which denied a meaningful
opportunity to be reunited with his children.

        In response, the guardian ad litem and DHHR support the circuit court’s termination
order. The guardian asserts that at the dispositional hearing, Petitioner Father was on home
confinement for criminal charges related to the abuse and neglect case and the delay, if any, in
ruling on Petitioner Father’s motion did not prejudice him. DHHR points out that while
Petitioner Father asserts that he requested an improvement period in January of 2012, the record
reflects that it was not until May of 2012 that Petitioner Father actually made such a request in
writing. Thereafter, on May 14, 2012, he was given the opportunity to present evidence and
testimony to support his motion. Consequently, there can be no error asserted against the circuit
court concerning its timeliness in addressing this motion. Moreover, Petitioner Father’s argument
focuses on the timeliness of the ruling, not on the denial itself. Both the guardian and DHHR
argue that the record and the circuit court’s findings indicate that Petitioner Father did nothing to
support receiving an improvement period and that an earlier hearing on Petitioner Father’s
motion would not have changed the outcome.

         We find no error by the circuit court in terminating Petitioner Father’s parental rights or
in its ruling denying his motion for an improvement period. We have held as follows:

       “[C]ourts 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).

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

       “[t]ermination of parental rights, the most drastic remedy under the statutory
       provision covering the disposition of neglected children, W.Va.Code [§] 49-6-5
       [1977] may be employed without the use of intervening less restrictive
       alternatives when it is found that there is no reasonable likelihood under
       W.Va.Code [§] 49-6-5(b) [1977] that conditions of neglect or abuse can be


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       substantially corrected.” Syllabus Point 2, In re R.J.M., 164 W.Va. 496, 266
       S.E.2d 114 (1980).

Syl. Pt. 7, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (internal citations omitted). Our
review of the record supports the circuit court’s termination order.

       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.

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
Father’s parental rights to J.M., J.M., and C.M.




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                                      Affirmed.


ISSUED: January 14, 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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