STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In Re: Z.J., C.J., T.Y., A.Y., J.Y., & H.W. March 12, 2013
 

RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 No. 12-1042 (Clay County 11-JA-105, 106, 107, 108, 109 & 110) OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother filed this appeal, by counsel Wayne King, from the Circuit Court of 

Clay County which terminated her parental rights by order entered on August 2, 2012. The 

guardian ad litem for the child, Barbara Harmon-Schamberger, 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. 

DHHR filed the petition in this case in September of 2011. The petition alleged that the 

subject children were abused and neglected by Petitioner Mother’s failure to protect them. The 

petition discussed, for instance, an occasion in July of 2011 when Petitioner Mother drove on a 

suspended license and under the influence of alcohol while the children were in the car with her. 

Throughout the course of the proceedings, the circuit court ordered services for Petitioner 

Mother; however, Petitioner Mother failed to substantially comply. The circuit court ultimately 

terminated Petitioner Mother’s parental rights without post-termination visitation. Petitioner 

Mother appeals this termination. 

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

argues that the findings of fact and conclusions of law were not supported by evidence in the 

record. In support, Petitioner Mother asserts that she attended Narcotics Anonymous and 

Alcoholics Anonymous meetings, found suitable housing, and obtained employment for a period 

of time. The children’s guardian ad litem and DHHR respond and argue that the circuit court did 

not err in terminating Petitioner Mother’s parental rights. They both argue that although 

Petitioner Mother was offered help and services, she refused to take advantage of them. For 

instance, she left a six-month rehabilitation program after only five days. 

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 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 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. 

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 

2 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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. 

Affirmed. 

ISSUED: March 12, 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 

3