STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In Re: D.B. 

FILED 

November 26, 2013 

RORY L. PERRY II, CLERK 

No. 13-0654 (Roane County 11-JA-17) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother filed this appeal, by counsel Betty Clark Gregory, from the Circuit 

Court of Roane County, which terminated her custodial rights and visitation rights to the subject 

child by order entered on May 29, 2013. The guardian ad litem for the child, Anita Harold 

Ashley, filed a response supporting the circuit court’s order. The Department of Health and 

Human Resources (“DHHR”), by its attorney Michael L. Jackson, also filed a response in 

support of the circuit court’s order. Petitioner argues that the circuit court erred in finding that 

she had not substantially complied with her improvement period and in terminating her custodial 

rights to D.B. without awarding visitation. 

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 affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

In October of 2011, the DHHR filed the abuse and neglect petition in the instant case. 

The petition alleged that petitioner supported her drug addiction by using food stamps, child 

support, and other public assistance that her children, B.F. and D.B., received each month.1 At 

the filing of the petition, B.F. was eleven years old and D.B. was thirteen years old. While her 

children primarily lived with petitioner’s mother, petitioner came by to see them about once a 

month to collect these benefits, leaving petitioner’s mother to support the children on her own. 

Throughout the course of this case, the circuit court granted petitioner an improvement period 

with orders to comply with random drug screens, complete in-patient substance abuse treatment, 

attend parenting classes, participate in counseling, secure housing, and complete a psychological 

evaluation. Although petitioner participated in some of the services, she failed to fully comply 

with the ordered terms and conditions of her improvement period. For instance, petitioner’s 

Child Protective Services (“CPS”) worker testified that petitioner failed to complete all of her 

ordered drug screens and once she completed her drug treatment program, she did not stay in 

aftercare services or adhere to her recovery plan. Petitioner’s CPS worker also testified that, on 

another occasion, a straw that appeared to be used for snorting medication was found on 

petitioner. In May of 2013, the circuit court entered its order that retained petitioner’s parental 

1 B.F. and D.B. are half-siblings. Petitioner only challenges her termination of custodial rights 

and visitation rights to D.B. 

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rights, but terminated her custodial rights, to D.B. and B.F. The order reflected petitioner’s 

wishes for B.F. to be allowed placement under a legal guardianship with her foster parents. The 

order further terminated any further visits between petitioner and both of her children. From this 

order, petitioner now 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 appeal concerns child D.B. only. First, petitioner argues that the circuit court 

erred in (1) finding that she had not substantially completed the requirements of her 

improvement period and (2) finding there was no reasonable likelihood that conditions of abuse 

and neglect could be corrected. She asserts that she attended drug treatment and complied with 

services offered by the DHHR. Upon our review of the record, we find no error or abuse of 

discretion by the circuit court. West Virginia Code § 49-6-5(b)(3) provides that a parent’s failure 

to follow through with a reasonable family case plan constitutes circumstances in which there is 

no reasonable likelihood that conditions of neglect or abuse can be substantially corrected. The 

record reflects that petitioner failed to take full advantage of the services offered to her. At a 

hearing in March of 2013, for instance, petitioner’s CPS worker testified that petitioner had 

inconsistent drug screens, never secured her own housing, and that petitioner’s mother reported 

that petitioner was crushing and snorting pills after her release from an in-patient drug treatment 

program. The circuit court’s dispositional order entered in May of 2013 reflects that petitioner 

made no further changes since the March of 2013 hearing. 

Petitioner also argues that the circuit court erred in terminating her custodial and 

visitation rights to D.B., contrary to D.B.’s wishes. “‘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). Our 

review of the record reflects that petitioner resumed her use of drugs after attending treatment. 

Petitioner testified at the March of 2013 hearing and expressed that she was no longer abusing 

drugs. However, that CPS worker testified that after petitioner’s treatment, petitioner’s mother 

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reported that petitioner was crushing and snorting pills, that B.F. expressed concerns that 

petitioner was using drugs again, and that petitioner was not participating in post-treatment 

program services. Petitioner claimed that her inconsistent drug screens were due to her various 

medications, yet she never provided a list of her prescribed medications in support of this 

assertion. She further denied any use of drugs or responsibility for any drug paraphernalia. The 

record and the circuit court’s findings support its conclusions 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 custodial rights upon such 

findings. 

This Court reminds the circuit court of its duty to establish permanency for the child D.B. 

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 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). 

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For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: November 26, 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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