STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re A.C. and L.C. FILED
October 12, 2018
No. 18-0219 (Roane County 17-JA-28 and 17-JA-29) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother T.C., by counsel David B. Richardson, appeals the Circuit Court of
Roane County’s February 13, 2018, order terminating her parental rights to A.C. and L.C.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Michael W. Asbury Jr., filed a response on behalf of the children in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying her
motion for an extension of her post-adjudicatory improvement period and terminating her
parental rights.
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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
On April 28, 2017, the DHHR filed an abuse and neglect petition alleging that
petitioner’s substance abuse impaired her ability to parent the children. Petitioner waived her
preliminary hearing. On June 19, 2017, the circuit court held an adjudicatory hearing at which
petitioner stipulated to the allegations of abuse and neglect. Petitioner was granted a post-
adjudicatory improvement period. On September 15, 2017, petitioner entered into a ninety-day
inpatient substance abuse treatment program. However, petitioner was discharged from the
program in October of 2017 for noncompliance with medication; toxic behaviors, language, and
disengagement in group sessions; and admitted use of an illegal substance. On December 7,
2017, petitioner entered a twenty-eight-day treatment program. However, she was discharged
from that program after only one day due to her violation of the rule that she was not allowed to
have her cell phone in her room. During her one day in that program, petitioner provided a drug
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
1
screen that was positive for methamphetamine. On December 22, 2017, petitioner entered a new
twenty-eight-day treatment program.2
On January 11, 2018, the circuit court held a final review hearing at which it considered
the DHHR’s and the guardian’s joint motion to terminate petitioner’s post-adjudicatory
improvement period and petitioner’s motion to extend the improvement period. The DHHR
presented evidence of petitioner’s noncompliance with her post-adjudicatory improvement
period, her failed attempts at treatment, and her positive drug screens. Petitioner admitted to her
discharge from the day report center for various violations. According to the DHHR, petitioner
had not visited the children since October of 2017. The circuit court also heard testimony from
the children’s foster care caseworker, who testified that the children were thriving in the foster
home and that there had been a decline in the children’s questions regarding their parents.
Following the presentation of testimonial evidence, the circuit court denied petitioner’s motion
for an extension of her post-adjudicatory improvement period, terminated her improvement
period, and scheduled the matter for disposition.
On February 8, 2018, the circuit court held a final dispositional hearing to address the
DHHR’s and the guardian’s joint motion to terminate petitioner’s parental rights and petitioner’s
renewed motion for an extension of her post-adjudicatory improvement period. The circuit court
took judicial notice of evidence from prior hearings and found no reasonable likelihood that
petitioner could substantially correct the conditions of abuse and neglect in the near future and
that termination of her parental rights was in the children’s best interests. Ultimately, petitioner’s
parental rights were terminated in the circuit court’s February 13, 2018, order.3 It is from this
order that petitioner 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
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).
2
It is unclear from the record whether petitioner completed this program.
3
The father’s parental rights were also terminated below. According to respondents, the
children are placed together in a foster home and the permanency plan is to find a suitable
adoptive home for the children.
2
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, this Court
finds no error in the proceedings below.
On appeal, petitioner argues that the circuit court erred in denying her motion for an
extension of her post-adjudicatory improvement period. In support of her argument, petitioner
asserts that she has been “meaningfully participating” in a treatment program since December of
2017.4 She also argues that the circuit court “minimized [her] commitment and accomplishments
by finding that she had not substantially complied with the terms and conditions of her
improvement period.” However, we do not find these arguments persuasive.
Pursuant to West Virginia Code § 49-4-610(6),
[a] court may extend any improvement period granted pursuant to subdivision (2)
or (3) of this section for a period not to exceed three months when the court finds
that the [parent] has substantially complied with the terms of the improvement
period; that the continuation of the improvement period will not substantially
impair the ability of the department to permanently place the child[ren]; and that
the extension is otherwise consistent with the best interest of the child[ren].
While petitioner argues that she is currently participating in meaningful treatment, during the
majority of her post-adjudicatory improvement period, petitioner continuously failed to complete
treatment. In fact, petitioner was discharged from two treatment programs and from the day
report center for non-compliance due to behavioral issues, failure to engage in group sessions,
violations of rules and policies, and substance abuse. Additionally, petitioner stopped visiting
with the children in October of 2017. Clearly, petitioner did not substantially comply with the
conditions of her post-adjudicatory improvement period and, therefore, failed to meet the
requisite burden to receive an extension thereof. Petitioner also argues that an extension of her
post-adjudicatory improvement period would not have harmed the children. However, as
discussed, she did not meet the requisite burden to receive an extension of her improvement
period. Moreover, due to her failure to make any meaningful improvements during the
proceedings, granting petitioner an extension of her improvement period would only delay
establishing permanency for the children.
Further, we find no error in the circuit court’s termination of petitioner’s parental rights.
Petitioner argues that termination of her parental rights was not in the best interests of the
children. We disagree. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to
terminate parental rights upon findings that there is “no reasonable likelihood that the conditions
of neglect or abuse can be substantially corrected in the near future” and that termination is
necessary for the children’s welfare. West Virginia Code § 49-4-604(c)(3) provides that no
reasonable likelihood that the conditions of abuse or neglect can be substantially corrected exists
when “[t]he abusing parent . . . ha[s] not responded to or followed through with a reasonable
family case plan or other rehabilitative efforts[.]”
4
Petitioner’s brief was filed on May 4, 2018, yet there is no evidence that she had
completed any substance abuse treatment program at that time.
3
The evidence discussed above also supports the termination of petitioner’s parental
rights. Petitioner failed to successfully complete a substance abuse treatment program during her
post-adjudicatory improvement period. In addition to being dismissed from two treatment
programs and the day report center, she tested positive for methamphetamine during the
proceedings and stopped visiting with her children in October of 2017. Based on this evidence,
there was no reasonable likelihood that petitioner could substantially correct the conditions of
abuse and neglect in the near future. Additionally, due to petitioner’s failure to correct the
conditions of abuse and neglect, it is clear that the termination of petitioner’s parental rights was
in the children’s best interest in order to establish permanency. Therefore, the circuit court did
not err in terminating petitioner’s parental rights.
Lastly, due to the fact that the DHHR is continuing to work to secure a suitable adoptive
home for the children, 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 dispositional 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.
Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. 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] [now West Virginia Code § 49-4-
604(b)(6)], 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).
4
For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 13, 2018, dispositional order is hereby affirmed.
Affirmed.
ISSUED: October 12, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Allen H. Loughry II, suspended and therefore not participating
5