STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

October 1, 2013 

In Re: A.F., P.F. and J.F. RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

No. 13-0401 (Logan County 10-JA-21, 10-JA-22 and 10-JA-23) 

MEMORANDUM DECISION 

Petitioner Mother filed this appeal, by counsel Donna Pratt, from an April 9, 2013 order 

of the Circuit Court of Logan County, which terminated her parental rights to A.F., P.F. and J.F. 

The guardian ad litem for the children, Mark Hobbs, filed a response supporting the circuit 

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

Michael Jackson, filed a summary response in support of the circuit court order. On appeal, 

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

denying her visitation, and delaying disposition. 

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 March of 2010, the DHHR filed its petition for abuse and neglect and temporary 

emergency custody of the children. The petition alleged that the children witnessed their father 

snort J.F.’s medication, and that the father committed severe sexual abuse against P.F. The 

amended petition alleged additional acts of sexual abuse and that J.F. had informed Petitioner 

Mother about the situation. The circuit court found that Petitioner Mother knew about the sexual 

abuse and failed to protect the children. In terminating Petitioner Mother’s parental rights, the 

circuit court found that aggravating circumstances existed and there was no reasonable likelihood 

that the conditions of abuse and neglect could be substantially corrected. The circuit court also 

denied Petitioner Mother any visitation with the children. 

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, 

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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. First, she argues that the circuit court 

erred in denying her an improvement period because she proved she was willing to participate in 

any services or counseling offered by the DHHR. Second, Petitioner Mother argues that the 

circuit court failed to make specific rulings and findings when it denied her visitation throughout 

the case, and that the circuit court erred in denying her any visitation because she was not 

adjudicated as a neglectful parent until five months after the initial petition was filed and did not 

have her parental rights terminated for another fifteen months. The DHHR and the children’s 

guardian ad litem support the circuit court’s termination of Petitioner Mother’s parental rights. 

First, we address Petitioner Mother’s argument that the circuit court erred in denying her 

an improvement period. In order to receive an improvement period, a parent must show that she 

“is likely to fully participate in the improvement period . . . .” West Virginia Code § 49-6­

12(b)(2). West Virginia Code § 49-6-5(a)(7)(A) states that the DHHR is not required to make 

reasonable efforts toward reunification if the court finds that the parent has subjected the child to 

aggravated circumstances, including sexual abuse. Finally, 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). The record shows P.F. was sexually abused and that Petitioner Mother 

had knowledge of the sexual abuse yet failed to take appropriate measures to protect the children. 

Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental 

rights upon such findings. Thus, this Court finds no error in the termination of Petitioner 

Mother’s parental rights without an improvement period. 

We also find no error in the circuit court’s denial of Petitioner Mother’s right to 

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 interest 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 record supports the circuit 

court’s decision to deny Petitioner Mother post-termination visitation with her children. The 

circuit court properly considered the history and circumstances of the case and the best interests 

of the children. 

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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. 

Affirmed. 

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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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