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STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS

In Re: K.L. 

No. 13-0557 (Mingo County 12-JA-60)

MEMORANDUM DECISION 

 Petitioner Mother filed this appeal, by counsel Ashley Cochran, from the Circuit Court of 

Mingo County, which terminated her parental rights to child K.L. by order entered on April 25, 

2013. The guardian ad litem for the child, Diana Carter Wiedel, has filed a response supporting 

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

attorney Michael L. Jackson, has 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. 

 The DHHR filed the petition for the instant abuse and neglect case after the child’s 

parents brought him to the hospital for a possible drug overdose from benzodiazepines. Upon 

further investigation, drug paraphernalia was found in the parents’ home and the parents were 

unable to give a reasonable explanation as to how the child ingested the drugs. Rather, they 

stated that he might have acquired it off of the floor at his grandparents’ home. After further 

inquiry with the child’s grandparents, the grandparents revealed that several people came in and 

out of their own home “doing pills, doing drugs, shooting up.” K.L.’s father initially denied any 

drug use but later admitted to a substance abuse problem. At adjudication, the circuit court found 

that the parents engaged in substance abuse and other at-risk behaviors that endangered K.L. 

 Throughout the course of these proceedings, the circuit court granted both parents 

improvement periods and extended these improvement periods at least two times. The DHHR 

offered a variety of services and support to both parents. Nevertheless, neither parent took full 

advantage of these opportunities. At the final dispositional hearing, neither parent was employed 

or had a residence of his or her own. The DHHR reported that, despite active emergency 

protective orders granted to petitioner against the father, the parents were still in contact with 

each other. Both were also arrested in February of 2013 and eventually pled guilty to their arrest 

charges. K.L.’s father pled guilty to violating an active emergency protective order, larceny, and 

fleeing, while petitioner pled guilty to providing false information to law enforcement. The 

circuit court concluded that there was no reasonable likelihood that the conditions of abuse and 

neglect would substantially change and that termination was in the child’s best interests. Based 

FILED 

October 21, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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on its findings and conclusions, the circuit court terminated both parents’ parental rights, from 

which they both filed separate 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’s sole argument on appeal is that the circuit court improperly terminated her 

parental rights to K.L. Petitioner asserts that she substantially complied with the terms of her 

improvement period and adequately improved the conditions that led to the filing of the abuse 

and neglect petition. 

 Upon our review of the record, we find no error or abuse of discretion by the circuit 

court. “‘Although parents have substantial rights that must be protected, the primary goal in 

cases involving abuse and neglect, as in all family law matters, must be the health and welfare of 

the children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 2, In re 

Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013). The circuit court made clear and thorough 

findings that petitioner failed to make substantial improvements during the pendency of this case. 

Although petitioner attended visits with K.L. and yielded negative results in her most recent drug 

screens, she failed to demonstrate any capability of recognizing the issues that led to the filing of 

the petition. For instance, petitioner continued to contact K.L.’s father despite active emergency 

protective orders and, two months before the final dispositional hearing, she was arrested for 

providing false information to law enforcement. Such findings support the circuit court’s 

conclusions that there was no reasonable likelihood to believe that the conditions of abuse and 

neglect could be substantially corrected in the near future, and that the termination was necessary 

for the child’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 child. 

Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires: 
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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 

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 21, 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