STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In Re: B.K. FILED 

October 1, 2013 

RORY L. PERRY II, CLERK 

No. 13-0455 (Barbour County 12-JA-4) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother filed this appeal, by counsel Chaelyn Casteel, from the Circuit Court of 

Barbour County, which terminated her parental rights by order entered on April 2, 2013. The 

guardian ad litem for the child, Karen Johnson, filed a summary response supporting the circuit 

court’s order. The Department of Health and Human Resources (“DHHR”), by its attorney Lee 

Niezgoda, also filed a summary response in support of the circuit court order. On appeal, 

Petitioner Mother argues that the circuit court erred in terminating her parental rights and in 

terminating her post-adjudicatory improvement period. 

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 February of 2012, the DHHR and the maternal grandparents filed a joint petition for 

abuse and neglect. The petition alleged that Petitioner Mother exposed the child to domestic 

violence, created a risk of injury to the child, and was unable to properly care for the child. The 

circuit court granted physical custody of the child to the maternal grandparents. In June of 2012, 

Petitioner Mother entered into a stipulated adjudication and admitted that her child was in danger 

due to her fighting with the biological father and the domestic violence with the maternal 

grandmother in the presence of the child. In December of 2012, the circuit court granted 

Petitioner Mother a six-month post-adjudicatory period. 

However, in February of 2013, the guardian ad litem filed a motion to revoke Petitioner 

Mother’s post-adjudicatory improvement period for failing to benefit from the services, failing a 

drug test, and claiming to a service provider that she had done nothing wrong and did not need 

services. Following a hearing on the guardian ad litem’s motion, the circuit court terminated 

Petitioner Mother’s post-adjudicatory improvement period for failing to comply with the terms 

of her improvement plan. In addition, the circuit court held that Petitioner Mother abandoned her 

child. The circuit court terminated Petitioner Mother’s parental rights by order entered on April 

2, 2013. The circuit court concluded that Petitioner Mother has done nothing to correct her 

behavior, failed to visit her child, does not have the capacity to care for her child, and that there 

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is no reasonable likelihood that the deficiencies could be substantially corrected in the 

foreseeable future. It is from this order that Petitioner Mother appeals. 

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). 

Petitioner Mother raises two assignments of error on appeal. First, Petitioner Mother 

argues that the circuit court erred in terminating her parental rights rather than ordering a less 

drastic disposition, such as placing the child with the maternal grandparents. Petitioner asserts 

that she has a bond with her child and that it is not in the child’s best interest to terminate her 

parental rights. Second, Petitioner Mother argues that the circuit court erred in terminating her 

post-adjudicatory improvement period. Petitioner Mother contends that she was willing to 

participate in services and expressed her desire to continue services, even if she did not agree 

that she needed services. 

Upon our review, 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 child’s welfare. West Virginia Code § 49-6-5(b)(3) states that 

a circumstance in which there is no reasonable likelihood that the conditions of abuse and 

neglect can be substantially corrected includes situations where 

[t]he abusing parent . . . [has] not responded to or followed through with a 

reasonable family case plan or other rehabilitative efforts . . . to reduce or prevent 

the abuse or neglect of the child, as evidenced by the continuation or insubstantial 

diminution of conditions which threatened the health, welfare or life of the child. 

Petitioner Mother began receiving services as early as July of 2012. Petitioner Mother’s case 

plan set forth the following services: adult life skills classes, individualized parenting classes, 

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supervised visitation, psychological assessment, and multidisciplinary team meeting attendance. 

Following a review hearing in which Petitioner Mother failed a drug test, she was further 

required to receive substance abuse treatment. A review of the record supports that Petitioner 

Mother failed to comply with the terms of her post-adjudicatory improvement period. 

Specifically, she failed to attend supervised visitation with her child, used drugs, and failed to 

appear at multidisciplinary team meetings and court proceedings. Pursuant to West Virginia 

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

Second, the Court finds no error in the circuit court’s decision to terminate Petitioner 

Mother’s post-adjudicatory improvement period. Pursuant to West Virginia Code § 49-6-12(h), 

circuit courts are directed to “terminate any improvement period . . . when the court finds that 

respondent has failed to fully participate . . . .” Again, the record reflects that Petitioner Mother 

failed to participate in her services during her post-adjudicatory improvement period. Petitioner 

Mother did not participate in supervised visitations or have any meaningful contact with the 

child, did not attend multidisciplinary team meetings, did not attend court proceedings, did not 

participate in counseling, and used drugs. Furthermore, Petitioner Mother moved out of the area. 

Accordingly, we find no error by the circuit court in terminating Petitioner Mother’s postadjudicatory improvement period. 

This Court reminds the circuit court of its duty to establish permanency for the child. 

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 child 

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 

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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. 

Affirmed. 

ISSUED: October 1, 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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