In Re: A.S., E.S. and M.S. ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: A.S., E.S., and M.S. May 24, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 12-1492 (Logan County 11-JA-16, 17, and 18) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother filed this appeal, by counsel Allison Dingess, from the Circuit Court of
Logan County, which terminated her parental rights by order entered on December 11, 2012. The
guardians ad litem for the children, Robert B. Kuenzel and Erin R. Bias, have filed a response
supporting the circuit court’s order, along with a supplemental appendix. The Department of
Health and Human Resources (“DHHR”), by its attorney Michael L. Jackson, has 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.
Petitioner Mother adopted the subject children in 2010 after the children’s biological
parents’ parental rights were terminated. In March of 2011, the DHHR filed the petition of the
instant case with allegations of physical abuse by Petitioner Mother. The circuit court initially
granted Petitioner Mother visitation with the children, but ceased visitation in light of reports that
the children were acting out after visits with petitioner and expressed fear of her. In August of
2011, Petitioner Mother pled guilty to domestic battery in magistrate court with regard to one of
the children. In December of 2012, the circuit court entered its order terminating Petitioner
Mother of her parental rights to the children, from which she now appeals.
Petitioner Mother argues that the circuit court’s termination of her parental rights was in
error for three reasons. First, she argues that the circuit court erred in denying her an
improvement period at adjudication and at disposition. Petitioner Mother asserts that she
demonstrated by clear and convincing evidence that she would substantially comply with an
improvement period. Second, Petitioner Mother argues that the DHHR failed to make reasonable
efforts to preserve the family. She asserts that the DHHR was never relieved of its duty to do so
because the circuit court did not find aggravated circumstances in this case. Lastly, Petitioner
Mother argues that she was prejudiced by the circuit court’s numerous failures to comply with
the statutory requirements and the procedures required by the Rules of Procedure for Child
Abuse and Neglect Proceedings. For instance, Petitioner Mother asserts that the circuit court’s
timing between the adjudication order and the dispositional hearing was contrary to the time
frames provided in Rule 32 of the Rules of Procedure for Child Abuse and Neglect Proceedings.
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In response, the children’s guardians ad litem and the DHHR argue that the circuit court
committed no errors in terminating Petitioner Mother’s parental rights to the subject children.
Respondents argue that Petitioner Mother failed to meet her burden of proof in her motions for
improvement periods. They further argue that the circuit court did not err in finding that
termination of petitioner’s parental rights was in the children’s best interests. They highlight
petitioner’s abusive behavior that was observed and recorded by others.
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 error in the circuit court’s termination of Petitioner
Mother’s parental rights, including its denial of improvement periods or in its navigation of this
case. We find no error with regard to the circuit court’s denial of improvement periods. Pursuant
to West Virginia Code § 49-6-12, the parent has the burden to prove by clear and convincing
evidence that he or she would substantially comply with an improvement period. Subsequently,
the circuit court has the discretion to grant or deny such an improvement period. Only excerpts
of the transcripts for different hearings held in this case were provided on appeal. Nevertheless,
our review of these excerpts reveals testimony that opined that no further services could be
provided to petitioner that would serve the children’s best interests. With regard to Petitioner
Mother’s argument that the DHHR was not relieved of its duty to make reasonable efforts to
preserve the family, we find no merit to warrant reversal. The circuit court’s July of 2011 order
makes reference to the allegations in the petition as its basis for finding aggravated
circumstances. Our review of the petition reflects the presence of chronic abuse as described in
West Virginia Code § 49-6-5(7)(A). Our review provides that the circuit court was presented
with sufficient evidence upon which it could have 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 child’s welfare. Pursuant to West Virginia
Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon such findings.
With regard to any procedural delays that occurred in these proceedings, we find that none were
to the degree that substantially frustrated the overall proceedings to warrant reversal. See In re
Edward B., 210 W.Va. 621, 634, 558 S.E.2d 620, 633 (2001).
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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
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.
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ISSUED: May 24, 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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