In Re: S.C. ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In Re: S.C. FILED
March 12, 2013
No. 12-1146 (Kanawha County 10-JA-65) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother filed this appeal, by counsel Travis A. Griffith, from the Circuit Court
of Kanawha County which terminated her parental rights by order entered on August 29, 2012.
The guardian ad litem for the child, Michael Payne, 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.
The DHHR initiated this case in April of 2010 when it filed its petition with allegations
that Petitioner Mother battled chronic drug abuse and had exposed her child to a violent
relationship petitioner had with her boyfriend. The petition alleged an occasion when the child
was left with an inappropriate caregiver and, during this care, was burned by chemicals from a
methamphetamine lab. The circuit court granted Petitioner Mother a six-month post-adjudicatory
improvement period, with which she did not fully comply. The circuit court terminated the
improvement period before the six months passed. Ultimately, the circuit court terminated
Petitioner Mother’s parental rights by order entered in August of 2012. Petitioner Mother appeals
this termination order.
Petitioner Mother argues that the circuit court erred in finding that the conditions of abuse
and neglect could not be substantially corrected in the near future and argues that, consequently,
the circuit court erred in terminating her parental rights. Petitioner Mother argues that she has
freely admitted to having a substance abuse problem and has acknowledged her failure to comply
with DHHR services, but also asserts that she showed improvement at the dispositional hearing.
In response, the child’s guardian ad litem and the DHHR both argue that the circuit court did not
err in terminating petitioner’s parental rights. They argue that petitioner failed to make
substantial progress during her six-month post-adjudicatory improvement period and that the
circuit court outlined its findings in its dispositional order and throughout the record for
terminating petitioner’s parental rights.
The Court has previously established the following standard of review:
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“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. The Court finds that the circuit court was presented with sufficient
evidence upon which it based findings that there were no reasonable grounds 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.
For the foregoing reasons, we affirm the circuit court’s order terminating petitioner’s
parental rights to the subject child.
Affirmed.
ISSUED: March 12, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II
DISSENTING:
Justice Menis E. Ketchum
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