In Re: K.C. and C.C., Jr. ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: K.C. and C.C., Jr. March 12, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 12-1320 (Mingo County 11-JA-12 & 13) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father’s appeal, by counsel Ashley Cochran, arises from the Circuit Court of Mingo
County, wherein his parental rights were terminated by order entered on October 12, 2012. The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee A.
Niezgoda, has filed its response. The guardian ad litem, Diana Carter Wiedel, has filed a response
on behalf of the children.
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.
On March 4, 2012, the DHHR received a referral that a domestic disturbance occurred at
the home where K.C. and C.C. lived. The children’s parents were involved in a domestic
altercation. After the altercation, the mother was taken to the hospital and Petitioner Father was
bleeding, having been stabbed by the mother. The DHHR went to the home that day, where police
were still conducting their investigation, and found drug paraphernalia, trash, dirt, and clutter. The
children were walking through blood on the floor of the kitchen. C.C. was crying and K.C. said to
the DHHR that “mommy stabbed daddy.” There was an empty prescription bottle for ninety pills
of hydrocodone that had been filled on March 2, 2012.
On May 21, 2012, the circuit court ordered a post-adjudicatory improvement period for
Petitioner Father and the mother that included anger management, substance abuse treatment, and
psychological evaluation. The improvement period was for ninety days and a thirty-day extension
was ordered on August 20, 2012. On September 24, 2012, a dispositional hearing was held. The
court found that Petitioner Father pled to domestic battery charges for the incident on March 4,
2012, and was released from jail in July of 2012. Petitioner Father was found to have participated
in a psychological evaluation, as well as anger management and substance abuse rehabilitation
while he was incarcerated, but did not participate in any anger management or substance abuse
treatment after that time and that his drug screens tested positive for hydrocodone. DHHR
recommended terminating his parental rights. In an order entered on October 12, 2012, the circuit
court found that Petitioner Father did not fully comply with the terms of the post-adjudicatory
improvement period and terminated his parental rights.
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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).
On appeal, Petitioner Father argues that his circumstances substantially changed during
the improvement period, because he was released from incarceration and, therefore, is entitled to
an additional improvement period because his incarceration inhibited his ability to comply with
the plan. The DHHR responds that Petitioner Father had two to three months to improve after
incarceration and did not take adequate steps to do so and that his incarceration was the only time
he did comply with some portions of the improvement plan. Finally, the DHHR noted that
petitioner had tested positive to drug screens throughout the improvement period. The guardian
agrees that termination of Petitioner Father’s parental rights and denying him a post-dispositional
improvement period is in the best interest of the children due to the father’s lack of improvement
during the improvement period.
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.
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
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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
FILED
within twelve months of the date of the disposition order. As this Court has stated,
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
[t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules of
OF WEST VIRGINIA
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, we find no error in the decision of the circuit court, and the
termination of petitioner’s parental rights is hereby affirmed.
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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