In Re: H.R. (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED In Re: H.R. November 19, 2012 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA No. 12-0682 (Mercer County 10-JA-150) MEMORANDUM DECISION Petitioner Father files this appeal, by counsel Michael Cooke, from the Circuit Court of Mercer County, which terminated petitioner s parental rights to the subject child by order entered on May 18, 2012. The guardian ad litem for the child, Julie Lynch, has filed a response supporting the circuit court s order. The Department of Health and Human Resources ( DHHR ), by its attorney Lee Niezgoda, also filed a response in support of termination. This Court has considered the parties briefs and the record on appeal. The facts and legal arguments are adequately presented in the parties written briefs and the record on appeal, 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 Revised Rules of Appellate Procedure. DHHR filed the petition in the instant case in late 2010 after it learned of H.R. s parents issues with drug abuse. An amended petition was filed in January of 2011 to include the parents issues with domestic violence. The circuit court found H.R., born November 18, 2008, to be a neglected child, and throughout the course of the proceedings, Petitioner Father was granted two improvement periods, including a dispositional improvement period in November of 2011. After Petitioner Father failed to fully comply with the terms of his improvement periods, the circuit court terminated his parental rights to H.R. in May of 2012. Petitioner Father 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 1 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 Father argues that the circuit court erred in terminating his parental rights without an extension to his improvement period and when he was not given the same opportunities to show significant improvement due to unnecessary reliance on prior failure to comply with services. Petitioner Father argues that he successfully completed a substance abuse program and has never been charged with domestic violence. Petitioner Father argues that he suffers from a legitimate back injury and it would be proper for him to address his prescription medication abuse issues without punishment for any past noncompliance. In response, the guardian ad litem and DHHR argue that the circuit court did not err in terminating Petitioner Father s parental rights without extending his improvement period. Both highlight that Petitioner Father failed to comply with the terms of his improvement period, such as failing to complete a psychological evaluation and failing to even begin the Batterer s Intervention Program. Moreover, Petitioner Father continued to test positive for drugs and he moved from place to place with such regularity that it was difficult for DHHR to keep track of his whereabouts. They argue that the case had been open for over a year and a half without accomplishment of the goals toward reunification and termination was in the child s best interests. We find no error in the circuit court s order terminating Petitioner Father s parental rights. Under West Virginia Code § 49-6-12, a circuit court has the discretion to grant an improvement period and likewise, has the discretion to grant or deny an extension to it. [C]ourts 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). Moreover, we have held as follows: Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, W.Va.Code [§] 49-6-5 [1977] may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under W.Va.Code [§] 49-6-5(b) [1977] that conditions of neglect or abuse can be substantially corrected. Syllabus Point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980). Syl. Pt. 7, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (internal citations omitted). Further, 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 part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996). Based on our review of the record and given the circumstances of the case, we find no error by the circuit court. 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: 2 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 the circuit court s order terminating Petitioner Father s parental rights. Affirmed. ISSUED: November 19, 2012 CONCURRED IN BY: Chief Justice Menis E. Ketchum Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Thomas E. McHugh 3
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