STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In Re: A.R. and E.M. FILED 

May 24, 2013 

No. 12-1517 (Mineral County 12-JA-20 and 12-JA-27) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother filed this appeal, by counsel Lauren M. Wilson, from the Circuit Court 

of Mineral County, which terminated her parental rights by order entered on November 30, 2012. 

The guardians ad litem for the children, Kelley A. Kuhn and Meredith H. Haines, have filed a 

response supporting the circuit court’s order. The Department of Health and Human Resources 

(“DHHR”), by its attorney Lee A. Niezgoda, 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. 

In July of 2012, the DHHR filed its petition that alleged Petitioner Mother’s abuse and 

neglect of the subject children, alongside the aggravated circumstances of her prior terminations 

to older children in 2001 and 2009. In both of those preceding terminations, Petitioner Mother 

was unable to remedy her chronic drug use and, in the instant petition, the DHHR alleged 

Petitioner Mother’s drug use while caring for A.R. and while pregnant with E.M. In August of 

2012, the DHHR filed an amended petition to include E.M., who was born that month. At the 

dispositional hearing, Petitioner Mother testified that she was, and had been, an addict and 

further admitted that she was still struggling with her addiction. In November of 2012, the circuit 

court terminated Petitioner Mother’s parental rights to the subject children and denied her motion 

for post-termination visitation until after the children’s adoptions were complete and only at the 

discretion of the adoptive parents. 

Petitioner Mother first argues that the circuit court erred in denying her an improvement 

period because she asserts that she has shown that she remedied the problems that led to the 

previous involuntary terminations of her parental rights and that there was a reasonable 

likelihood that she could correct the conditions of abuse/neglect in the near future. In support, 

Petitioner Mother argues that she attended Narcotics Anonymous (“NA”) and Alcoholics 

Anonymous (“AA”) every week while she was in jail and successfully completed a parenting 

skills class. Second, Petitioner Mother argues that the circuit court erred in failing to grant posttermination visitation prior to adoption and in leaving post-adoption visitation at the discretion of 

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the potential adoptive parents. She argues that the evidence indicates that consistent visitation 

would be in the children’s best interests. 

In response to petitioner’s assertion that she should have received an improvement 

period, the children’s guardians ad litem and the DHHR argue that Petitioner Mother’s testimony 

at the dispositional hearing indicates that Petitioner Mother has failed to overcome her addiction 

and her behavior has not markedly changed since her prior terminations. They also highlight that 

although Petitioner Mother began attending classes and NA and AA meetings, these steps were 

not taken until she was in jail. 

With regard to Petitioner Mother’s second argument concerning post-termination 

visitation, respondents contend that the circuit court committed no errors in this regard. They 

argue that Petitioner Mother did not demonstrate any close emotional bond with either of the 

subject children, both of whom stayed with their current placements throughout this case. They 

further argue that the circuit court gave careful consideration to such evidence before ruling on 

petitioner’s motion for post-termination visitation. 

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 an improvement period or in its ruling on posttermination visitation. 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. Under this same statute, the circuit court has the discretion to grant or deny 

such an improvement period. Our review of the record provides that Petitioner Mother’s prior 

terminations were due to her drug use. Similarly, the instant termination resulted from her failure 

to improve her issues with drug use. Further, we find 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 § 

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49-6-5(a)(6), circuit courts are directed to terminate parental rights upon such findings. Lastly, 

we find no error with regard to Petitioner Mother’s argument concerning post-termination 

visitation. After terminating parental rights, a circuit court may grant post-termination visitation 

if it considers that such a relationship is in the children's best interests and if it would not 

unreasonably interfere with their permanent placement. See State ex rel. Amy M. v. Kaufman, 

196 W.Va. 251, 260, 470 S.E.2d 205, 214 (1996). Our review of the circuit court's termination 

order reflects that post-termination visitation at this juncture would not promote the best interests 

of the children who are currently in relative placements. 

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. 

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Affirmed. 

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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