STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In Re: M.L., J.L., J.K., J.W., M.W. February 11, 2013
 

RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 No. 12-1148 (Harrison County 12-JA-28, 29, 30, 31, and 32) OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother’s appeal, by counsel Perry B. Jones, arises from the Circuit Court of 

Harrison County, wherein her parental rights were terminated by order entered on September 19, 

2012. The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee 

A. Niezgoda, has filed its response. The guardian ad litem, Dreama Sinkkanen, filed a response 

on behalf of the children. 

This Court has considered the parties’ briefs and the appendix 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 has been involved with the DHHR since March 26, 2010, when the two 

eldest children, M.L. and J.L., were put under emergency custody of the DHHR and into foster 

care, upon concerns of domestic violence between Petitioner Mother and her husband, the father 

of the youngest two children, J. W. and M.W., both of whom were born after March of 2010. J.K. 

was also put into the legal custody of the DHHR, but was in the physical custody of her biological 

father. J.W. was put into DHHR custody upon birth in June of 2010. On October 12, 2011, M.L., 

J.L., and J.W. were returned to the custody of Petitioner Mother and her husband, but the case 

was held open due to a custody battle between Petitioner Mother and the father of J.K. 

On January 17, 2012, Child Protective Services (“CPS”) visited Petitioner Mother’s home 

and found it filthy and in disarray. Petitioner Mother informed CPS that M.L. had scabies and 

head lice. Over the next four months, CPS observed M.L. and Petitioner Mother having head lice 

and, while the home was occasionally cleaner, it was often in disarray and dirty. On May 18, 

2012, the DHHR filed a petition for abuse and neglect based upon the children’s poor hygiene and 

physical abuse of nine-month-old M.W. After the circuit court adjudicated Petitioner Mother as 

abusive and neglectful and denied her an improvement period, the DHHR filed for the termination 

of Petitioner Mother’s parental rights. 

On September 19, 2012, the circuit court terminated Petitioner Mother’s parental rights. 

At disposition, the DHHR testified that, while Petitioner Mother has shown a willingness to 

comply with improvement plans, she has shown an unwillingness or inability to use what she has 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

learned during the improvement period. The circuit court held that the children continue to suffer 

and that there is no reasonable likelihood that the conditions of neglect can be substantially 

corrected in the near future. 

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 re 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). 

On appeal, Petitioner Mother argues that the circuit court erred in failing to grant an 

improvement period and terminating her parental rights because the court did not properly 

consider her likelihood in participating in an improvement period and that her circumstances had 

changed because she offered to leave her husband in order to keep the children. Finally, she 

argues that the circuit court erred in terminating her parental rights by stating that the children had 

been in foster care for fifteen of the previous twenty-two months because there was not clear 

testimony to that effect. 

The DHHR responds that while testimony showed that Petitioner Mother is likely to 

participate in an improvement period, it also showed that she is unlikely to benefit further from an 

improvement period, due to the meager improvements made prior to the instant petition when she 

was offered numerous services. The DHHR further argues that the offer to leave her husband 

“rings hollow,” and did not represent an actual change in situation. Finally, the DHHR argues that 

the claims regarding the number of months the children have been in foster care is meritless. First, 

the DHHR states that the statute does not encumber the court, but only mandates that the DHHR 

recommend termination in certain circumstances. Second, the DHHR argues that three of the 

children were in foster care for eighteen months and that the only two who were not in foster care 

for fifteen of the past twenty-two months are J.K., who was in physical custody of her father, and 

M.W., who was born less than 15 months before the adjudication. Finally, the DHHR argues that 

there was abundant evidence to support the court’s denial of an improvement period and 

termination of parental rights and that it would be clear error to find otherwise. 

The guardian’s response mirrors that of the DHHR. The guardian argues that “the question 

is not whether the petitioner will comply with the terms and conditions of an improvement period, 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

but whether the conditions of abuse and neglect can be corrected in the near future.” The guardian 

argues that she had not corrected the problem after two years of services and assistance. Finally, 

the guardian argued that the length of time the children were in foster care is but one factor in 

deciding whether to terminate the parental rights, not the only one, and that there was substantial 

support for the termination on the record. 

This Court has held that “‘courts are not required to exhaust every speculative possibility 

of parental improvement . . . where it appears that the welfare of the child will be seriously 

threatened . . . .’ Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syl. Pt. 

4, in part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). This Court finds that the circuit 

court was presented with sufficient evidence upon which it could have found that that there was 

no reasonable likelihood that the 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 these 

findings. Furthermore, under West Virginia Code § 49-6-5b(a)(1), the DHHR is required to 

recommend termination if the child has been in foster care for fifteen of the past twenty-two 

months. 

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 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

consistent with the child’s best interests or where a suitable adoptive home cannot 

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 find no error in the decision of the circuit court, and the 

order terminating Petitioner Mother’s parental rights is hereby affirmed. 

Affirmed. 

ISSUED: February 11, 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 

4