In Re: Z.J., C.J., T.Y., A.Y., J.Y. and H.W. ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: Z.J., C.J., T.Y., A.Y., J.Y., & H.W. March 12, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 12-1042 (Clay County 11-JA-105, 106, 107, 108, 109 & 110) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother filed this appeal, by counsel Wayne King, from the Circuit Court of
Clay County which terminated her parental rights by order entered on August 2, 2012. The
guardian ad litem for the child, Barbara Harmon-Schamberger, 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 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.
DHHR filed the petition in this case in September of 2011. The petition alleged that the
subject children were abused and neglected by Petitioner Mother’s failure to protect them. The
petition discussed, for instance, an occasion in July of 2011 when Petitioner Mother drove on a
suspended license and under the influence of alcohol while the children were in the car with her.
Throughout the course of the proceedings, the circuit court ordered services for Petitioner
Mother; however, Petitioner Mother failed to substantially comply. The circuit court ultimately
terminated Petitioner Mother’s parental rights without post-termination visitation. Petitioner
Mother appeals this termination.
Petitioner Mother argues that the circuit court erred in terminating her parental rights. She
argues that the findings of fact and conclusions of law were not supported by evidence in the
record. In support, Petitioner Mother asserts that she attended Narcotics Anonymous and
Alcoholics Anonymous meetings, found suitable housing, and obtained employment for a period
of time. The children’s guardian ad litem and DHHR respond and argue that the circuit court did
not err in terminating Petitioner Mother’s parental rights. They both argue that although
Petitioner Mother was offered help and services, she refused to take advantage of them. For
instance, she left a six-month rehabilitation program after only five days.
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
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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 error in the circuit court’s termination of Petitioner
Mother’s parental rights. The Court finds 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
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
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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’s
parental rights to the subject children.
Affirmed.
ISSUED: March 12, 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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