1 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 app eal, by counsel Ashley Cochran, from the Circuit Court of Mingo County, which terminated her parental ri ghts to child K.L. by or der 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 Hu man Resources (“DHHR”), by its attorney Michael L. Jackson, has also filed a res ponse in support of the ci rcuit 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on 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 possi ble drug overdose from benzodiazepines. Upon further investigation, drug paraphernalia was f ound in the parents’ home and the parents were unable to give a reasonable expl anation as to how the child i ngested the drugs. Rather, they stated that he might have acquired it off of th e floor at his grandparent s’ home. After further inquiry with the child’s grandpare nts, the grandparents revealed that several people came in and out of their own home “doing pill s, 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 subs tance abuse and other at-risk be haviors that endangered K.L.

Throughout the course of these proceedings, the circuit court granted both parents improvement periods and extended these improve ment 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 di spositional hearing, neither parent was employed

or had a residence of his or her own. The DHHR reported th at, 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 th ere was no reasonable likelihood th at the conditions of abuse and neglect would substantially change and that termination was in th e child’s best interests. Based 

### FILED

October 21, 2013
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 on its findings and conclusions, the circuit court te rminated both parents’ parental rights, from which they both filed separate appeals.

The Court has previously establishe d 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 abus e 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. Th ese findings shall not be set aside by a reviewing court unless cl early erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the revi ewing 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 diffe rently, 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 c onditions that led to the filing of the abuse and neglect petition.

Upon our review of the record, we find no error or abuse of disc retion by the circuit court. “‘Although parents have su bstantial 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 circ uit court made clear and thorough findings that petitioner failed to make substantia l 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 dispositiona l hearing, she was arrested for providing false information to law enforcement. Such findings support the circuit court’s

conclusions that there was no reasonable likelih ood to believe that the conditions of abuse and neglect could be substantially corr ected 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 Ch ild Abuse and Neglect Proceedings requires:3 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 pla cement 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 di sposition order. As th is Court has stated,

[t]he [twelve]-month period provided in Ru le 43 of the West Virginia Rules of Procedures for Child Abuse and Neglect Proceedings for permanent placement of an abused and neglected child followi ng the final dispositional order must be strictly followed except in the most extr aordinary 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). More over, this Court has stated

that

[i]n determining the appropriate perm anent 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 interest s 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 ne glect proceedings does not actual ly 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