STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In Re: T.C. FILED 

March 31, 2014 

RORY L. PERRY II, CLERK No. 13-1057 (Mercer County 12-JA-224-DS) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother filed this appeal by her counsel, Thomas L. Fuda.1 Her appeal arises 

from the Circuit Court of Mercer County, which terminated her parental rights to one-year-old 

T.C. by order entered on September 10, 2013. The guardian ad litem for the child, Catherine 

Bond Wallace, filed a response in support of the circuit court’s order. The Department of Health 

and Human Resources (“DHHR”), by its attorney, Angela Alexander Walters, also filed a 

response in support of the circuit court’s order. Petitioner argues that the circuit court abused its 

discretion in terminating her parental rights without granting her an improvement period. 

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. 

Petitioner’s parental rights were terminated to three other children in February of 2012 

due to her substance abuse.2 In December of 2012, the subject child was born and petitioner 

tested positive for benzodiazepines at her birth. The DHHR filed a petition for abuse and neglect 

based on aggravated circumstances of petitioner’s prior involuntary termination of parental 

rights. 

Petitioner waived her rights to a preliminary hearing and stipulated to neglect resulting 

from her drug use and addiction. Petitioner subsequently moved for a post-adjudicatory 

improvement period, which the DHHR opposed. The circuit court took the matter under 

advisement and ordered petitioner to participate in inpatient drug treatment in an effort toward 

reunification. Otherwise, the circuit court advised, it would terminate petitioner’s parental rights. 

As the case proceeded, petitioner continued to use drugs and failed to secure inpatient 

drug treatment. At the final hearing in August of 2013, petitioner testified that she was using 

drugs under a prescription, but failed to produce a prescription in support of this assertion. She 

1 Petitioner’s counsel provides that he submits his appellate brief pursuant to Anders v. 

California, 386 U.S. 738 (1967). 

2 In October of 2012, we affirmed these terminations in Case No. 12-0386. 

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further testified that she has sought counseling, but has refused treatment offered through DHHR 

services. Petitioner also admitted that when she gave birth to T.C., she initially lied to the 

hospital about her substance abuse and history. Following this hearing, the circuit court found 

that petitioner failed to secure substance abuse treatment despite extra time the circuit court 

afforded her and that she continued to use drugs. The circuit court further found that there was no 

reasonable likelihood that the conditions of neglect could be substantially corrected and that 

termination was necessary for the child’s welfare. From this order, petitioner appeals. 

This 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 abused its discretion in 

failing to grant her an improvement period before terminating her parental, custodial, and 

guardianship rights to T.C. Petitioner asserts that she should have received an improvement 

period because she was diligent with visits with her child and has acknowledged her substance 

abuse. 

Upon our review of the parties’ briefs and record on appeal, we find no error 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). Additionally, West Virginia Code § 49-6­

3(d)(3) provides that the DHHR is not required to make reasonable efforts to preserve the family 

if the parent has had his or her parental rights involuntarily terminated to other children. West 

Virginia Code § 49-6-5(b)(3) explains that circumstances in which a parent fails to respond to 

rehabilitative efforts are considered circumstances in which there is no reasonable likelihood that 

the conditions of neglect or abuse can be substantially corrected. Moreover, West Virginia Code 

§ 49-6-12 directs that a parent who moves for an improvement period bears the burden of 

showing that he or she would substantially comply with the terms and conditions of an 

improvement period. Under this statute, the circuit court has the discretion to grant or deny an 

improvement period. 

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Our review of the dispositional hearing transcript reveals that petitioner refused treatment 

for drug abuse that was offered to her. Rather, nine months following the filing of the instant 

petition, petitioner was still abusing drugs and had not participated in any inpatient drug 

treatment. Petitioner failed to meet her burden in showing that she would substantially comply 

with an improvement period. Moreover, this evidence was sufficient to support the circuit court’s 

findings and 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 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 the 

following: 

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. 

ISSUED: March 31, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

Affirmed. 

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