STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In Re: B.L. and R.L. FILED 

September 3, 2013 

RORY L. PERRY II, CLERK No. 13-0328 (Taylor County 12-JA-09 and 12-JA-10) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother filed this appeal, by counsel Justina D. Helmick, from the Circuit Court 

of Taylor County, which terminated her parental rights by order entered on March 4, 2013. The 

guardian ad litem for the children, Mary S. Nelson, has 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. Petitioner Mother 

challenges the circuit court’s decisions to deny her motion for an improvement period and 

terminate her parental rights, and its failure to order post-termination visitation. 

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 May of 2012, the DHHR filed its petition of the instant case against Petitioner Mother. 

This petition alleged that petitioner abused and neglected her children through educational 

neglect and through exposing them to drug use and domestic violence in the home. Throughout 

the course of the proceedings, various witnesses corroborated these allegations, including the 

subject children who also testified of instances in which petitioner’s boyfriend physically and 

verbally abused them. Following the dispositional hearing in November of 2012, the circuit court 

found that petitioner failed to follow through with appropriate treatment for her habitual drug use 

to the degree that her parenting was seriously impaired. The circuit court concluded that there 

was no reasonable likelihood that these conditions would substantially change in the foreseeable 

future and, accordingly, terminated petitioner’s parental rights without visitation and without an 

improvement period. Petitioner Mother appeals this termination order. 

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 

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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). 

Petitioner Mother raises three arguments on appeal, all of which the children’s guardian 

ad litem and the DHHR contend lack merit. First, petitioner argues that the circuit court erred in 

terminating her parental rights, rather than ordering a lesser disposition, when petitioner admitted 

to allegations in the petition, expressed a desire to remediate the findings of abuse and neglect, 

and expressed a desire to participate in services to improve her situation. Petitioner asserts that 

her children’s placement would not be disturbed if only her custodial rights were terminated and 

if she was permitted to continue participation with services. Second, petitioner argues that the 

circuit court erred by not ordering post-termination visitation between petitioner and the children 

because she and the children share a strong emotional bond. Lastly, petitioner argues that the 

circuit court erred when it did not grant petitioner any improvement periods after petitioner 

admitted to the allegations contained in the petition, as well as other issues identified during the 

case. Petitioner contends that she should have received an improvement period because she 

acknowledged her problems and admitted to domestic violence and drug use in the home. 

Upon our review, the Court finds no error in the circuit court’s decisions to deny 

petitioner’s motion for an improvement period and terminate her parental rights, and to not order 

post-termination visitation. First, pursuant to West Virginia Code § 49-6-12, a respondent parent 

bears the burden of proving that he or she will substantially comply with an improvement period; 

consequently, the circuit court has the discretion to deny an improvement period if the circuit 

court finds that this burden has not been met. The record reflects that at the September 17, 2012, 

hearing on petitioner’s motion for an improvement period, she was still living with her abusive 

boyfriend, had bruises around her neck, and tested positive for drugs that same day. Accordingly, 

we find no abuse of discretion or error by the circuit court in denying petitioner’s motion for an 

improvement period. 

Second, our review of the record indicates 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. The 

circuit court’s final order included findings that petitioner continually abused drugs to the degree 

that seriously impaired her parenting skills, and that she showed no reasonable likelihood for 

change in the foreseeable future. Although petitioner asserts that she admitted to the petition’s 

allegations, the record reflects that she never fully acknowledged their degree and impact. For 

instance, a report submitted by the DHHR a week prior to the dispositional hearing indicates that 

petitioner continued to deny any domestic violence and substance abuse issues. 

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Third, with regard to petitioner’s contention that the circuit court should have granted her 

post-termination visitation, we find no error. The circuit court’s termination order is silent on this 

issue. However, petitioner’s record does not provide any evidence that she moved for posttermination visitation in circuit court. Should petitioner choose to raise this before the circuit 

court, the circuit court shall consider post-termination visitation pursuant to the guidance 

provided in Syllabus Point 5 of In Re: Christina L. and Kenneth J.L., 194 W.Va. 446, 460 S.E.2d 

692 (1995). 

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. 

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Affirmed. 

ISSUED: September 3, 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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