                             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. 12-0900 (Calhoun County 11-JA-40, 41 & 42)                              SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

                                 MEMORANDUM DECISION

        Petitioner Mother files this appeal, by counsel Erica Brannon Gunn, from the Circuit
Court of Calhoun County, which terminated Petitioner Mother’s parental rights to her children
by order entered on July 13, 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 their parents’ domestic violence, and that they had easy access to drug paraphernalia
in the home. In December of 2011, Petitioner Mother admitted to the home’s unsafe living
conditions and to the family’s history of drug use and domestic violence. The dispositional
hearing was originally scheduled for March of 2012, but was continued twice. In April of 2012,
the circuit court called the case for disposition, but continued it to May of 2012. At the hearing in
May of 2012, Petitioner Mother’s counsel was present even though petitioner was not. The
circuit court made findings that Petitioner Mother failed to participate in services, maintain
contact with DHHR, visit with her children, or appear for her psychological tests. The circuit
court terminated Petitioner Mother’s parental rights by order entered in July of 2012. The
father’s parental rights were also terminated. Petitioner Mother 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

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       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 Mother argues that the circuit court abused its discretion in terminating her
parental rights because she was not given proper notice of the dispositional hearing and was,
therefore, unable to present testimony as to why she should receive further improvement period.
Petitioner Mother asserts that the order setting the May 1, 2012, dispositional hearing was not
entered until July 13, 2012. She relies on In re Travis W., 206 W.Va. 478, 525 S.E.2d 669
(1999), where we remanded proceedings to the circuit court after it had merged the dispositional
hearing with the adjudicatory hearing.

        In response, the guardian ad litem and DHHR support the circuit court’s termination
order. Both argue that Petitioner Mother’s absence from the case began long before the
dispositional hearing. Further, even though Petitioner Mother did not receive proper written
notice of the May 1, 2012, dispositional hearing, she was well aware that disposition was
forthcoming and, moreover, was represented at the dispositional hearing by her counsel. No
evidence has been presented to show that Petitioner Mother’s own appearance would have
altered the circuit court’s decision to terminate her parental rights. DHHR further argues that the
case of In re Stephen Tyler R., 213 W.Va. 725, 584 S.E.2d 581 (2003), illustrates that due
process can be had without the party’s presence and distinguishes In re Travis W. from the
instant case. In In re Travis W., the sudden and unnoticed move by the circuit court to merge the
two hearings did not allow the parent to prepare against termination of parental rights. In the
instant case, however, Petitioner Mother and her counsel knew the case was headed for
disposition and both were present when the circuit court scheduled the case for disposition in
open court.

      We find no error by the circuit court in terminating Petitioner Mother’s parental rights.
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,




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       “[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
       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). The
children’s tender ages and our review of the record support 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). S’



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      For the foregoing reasons, we affirm the circuit court’s order terminating Petitioner
Mother’s parental rights to J.M., J.M., and C.M.

                                                                                 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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