In Re: D.K. and C.K.

• Court: West Virginia Supreme Court
• Decided: April 16, 2013
• Docket: 12-1437
• Status: Published

Opinion

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED April 16, 2013 In Re: D.K. and C.K. RORY L. PERRY II, CLERK

OF WEST VIRGINIA

No. 12-1437 (Kanawha County Nos. 09-JA-126 & 127)

MEMORANDUM DECISION

Petitioner Father filed this appeal, by counsel L. Thompson Price, from the Circuit Court of Kanawha County which terminated his parental rights by order entered on November 9, 2012. The guardian ad litem for the children, Jason Lord, has 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.

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.

In August of 2009, the DHHR filed the petition in the instant case. This petition alleged that Petitioner Father physically and sexually abused the children, domestic violence between the parents, and deplorable living conditions. Petitioner Father waived his rights to a preliminary hearing. In April of 2012, the circuit court adjudicated the children as abused and neglected. By its dispositional order entered in November of 2012, the circuit court terminated Petitioner Father’s parental rights to both children. It is from this order that Petitioner Father appeals.

Petitioner Father argues that the circuit court clearly erred when it found that the children were abused and neglected. Petitioner Father argues that the children recanted statements about abuse that they previously provided, that their testimony was coached, and that their testimony was inconsistent. In response, the children’s guardian ad litem and the DHHR both contend that the circuit court did not err in finding the children as abused and neglected. They argue that no evidence has been provided to dispute or discredit the children’s testimony. Both also argue that the psychologist who evaluated the children testified at the adjudicatory hearing that he did not find the children’s statements incredible, nor did he find that the children had been coached.

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

1 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).

Upon our review, the Court finds no error in the circuit court’s adjudication of the children as abused and neglected, nor do we find error in the circuit court’s termination of Petitioner Father’s parental rights. The Court finds that the circuit court was presented with sufficient evidence upon which it adjudicated the children as abused and neglected, as directed by West Virginia Code § 49-6-2(c). We also find that the circuit court was presented with sufficient evidence upon which it based findings 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 parental rights upon such findings.

This Court reminds the circuit court of its duty to establish permanency for the children. 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 children 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

2 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 cannot 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’s parental rights to the subject children.

Affirmed.

ISSUED: April 16, 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