                                   STATE OF WEST VIRGINIA

                                 SUPREME COURT OF APPEALS

                                                                                          FILED
                                                                                        February 11, 2013
In re: R.D., R.D., and R.D.                                                          RORY L. PERRY II, CLERK
                                                                                   SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA
No. 12-1078 (Mingo County 11-JA-90, 91, and 92)

                                    MEMORANDUM DECISION

         Petitioner Mother, by counsel Susan Van Zant, appeals the Circuit Court of Mingo
County’s Order entered on September 4, 2012, terminating petitioner’s parental rights. The
guardian ad litem, Lauren Thompson, filed her response on behalf of the children. The West
Virginia Department of Health and Human Resources (“DHHR”), by Lee Niezgoda, its attorney,
filed its response.

       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.

        A petition for immediate custody of minor children in imminent danger was filed after
Child Protective Services received a referral on November 1, 2011, and November 18, 2011,
alleging Leonard I.1, was drinking and smoking marijuana in the presence of the children and
that one child had missed twenty days of school without any doctors excuses. The children were
immediately removed from the home based on the finding that they were at risk to be
abused/neglected and were medically and educationally neglected by Petitioner Mother. During
the pendency of the case, Petitioner Mother was granted two ninety-day improvement periods in
which she failed to make any meaningful progress. Petitioner Mother continued to use illegal
drugs, refused to seek treatment, willfully refused to cooperate in family case plan, and failed to
follow through with medical and mental health rehabilitation. Petitioner Mother’s parental rights
were then terminated based on these findings.

        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,

        1
          Leonard I. is the father of two of the subject children. His parental rights were terminated in the
underlying case. He has filed petition number 12-1484. The remaining father, Leo C., had his parental rights
terminated as well and has yet to file a petition.

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       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 Mother argues that the circuit court erred in terminating her
parental rights by not considering the totality of the circumstances and finding that the situation
is unlikely to improve. Petitioner Mother argues it is in the best interest of her children to remain
in her care because of the close family bond. Additionally, Petitioner Mother argues her
situation has improved since her rights were terminated and is now willing and able to participate
in all services previously offered. Finally, Petitioner Mother argues the least restrictive
alternative should have been implemented before terminating her parental rights but fails to
suggest an alternative.

        The guardian responds in favor of the removal and termination of parental rights, arguing
Petitioner Mother understands the situation, admits to problems, and knows how to solve them
but chose to do nothing. The guardian agrees the circuit court acted in the best interest of the
children by terminating Petitioner Mother’s parental rights because she failed to successfully
complete her improvement period. The DHHR concurs that the circuit court properly terminated
Petitioner Mother’s parental rights after she failed to make any meaningful progress during her
improvement period. The DHHR notes Petitioner Mother was given eight months of services
aimed at helping her overcome addiction and safely parenting her children, yet she failed to
make even minimal progress in treating her addiction. The DHHR recognizes the close bond
Petitioner Mother has with the subject children but agrees the court properly considered such
bond and awarded post-termination visitation.

        This Court has held that “‘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 . . . .’ Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syl. Pt.
4, in part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). This Court finds that the circuit
court was presented with sufficient evidence upon which it could have found that that there was
no reasonable likelihood that the 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 these
findings. Likewise, this Court finds no error in the removal of the child based on imminent
danger.

       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:




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       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 child
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, the circuit court’s order terminating Petitioner Mother’s
parental rights is hereby affirmed.

                                                                                        Affirmed.

ISSUED: February 11, 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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