STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: R.S. II and T.S. April 16, 2013
RORY L. PERRY II, CLERK
No. 12-1432 (Mason County 11-JA-50 & 51) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father filed this appeal, by counsel R. Michael Shaw, from the Circuit Court of
Mason County which terminated his parental rights, entered on November 8, 2012. The guardian
ad litem for the children, Barry Casto, 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 November of 2011, the DHHR filed the abuse and neglect petition against the
children’s parents. The petition alleged abuse and neglect by the parents through the mother’s
alcoholism and Petitioner Father’s homelessness and lack of income. Throughout the course of
these proceedings, the circuit court granted both parents extended improvement periods. The
parents were provided services and visitation through their improvement periods. One of the
terms of Petitioner Father’s improvement period was to obtain proper housing and comply with
services. Although Petitioner Father resided much of the time at a homeless shelter, his residency
was unknown after September of 2012 when he also discontinued his contact and services with
the DHHR. In November of 2012, the circuit court entered its order revoking both parents’
improvement periods and terminating their parental rights to the subject children. It is from this
order that Petitioner Father appeals.
Petitioner Father argues that the circuit court committed clear error in issuing a final
order with findings of fact and conclusions of law not substantiated or supported by the record.
He also argues that the circuit court erred in finding that petitioner did not successfully complete
his post-adjudicatory period of improvement for reasons other than housing. Petitioner Father
argues that he made reasonable attempts to obtain housing and that he attended all visits with his
children. Petitioner Father further argues that he complied with all services and acquired
employment during this case. In response, the children’s guardian ad litem and the DHHR
contend that the circuit court did not err in terminating Petitioner Father’s parental rights to the
subject children. Both argue that one of Petitioner Father’s caseworkers testified that he did not
interact with the children much during their visits and that she was unsure of his capacity to
parent the children. They further point out that at the October of 2012 hearing, Petitioner Father
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was no longer staying at the homeless shelter and that he had discontinued contact and services
with the DHHR.
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).
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).
Upon our review, the Court finds no clear error with the circuit court’s findings of fact in
its determination to terminate Petitioner Father’s parental rights to the subject children. A review
of the transcript for the October 11, 2012, hearing reflects that Petitioner Father impermissibly
discontinued his contact and services with the DHHR. Our review indicates 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
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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 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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