STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In re: A.W. FILED 

May 22, 2017 

No. 16-1172 (Nicholas County 16-JA-22) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother F.W., by counsel John C. Anderson II, appeals the Circuit Court of 

Nicholas County’s November 2, 2016, order terminating her parental rights to nine-month-old 

A.W.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel 

S.L. Evans, filed its response in support of the circuit court’s order. The guardian ad litem 

(“guardian”), Julia R. Callaghan, filed a response on behalf of the child also in support of the 

circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating her 

parental rights. 

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 2014, the DHHR filed an abuse and neglect petition against petitioner alleging that her 

drug abuse affected her ability to appropriately care for a previously born child. This earlier child 

was experiencing symptoms of withdrawal upon his birth. While petitioner successfully 

completed an improvement period, she ultimately voluntarily relinquished her parental rights to 

this child. 

On February 26, 2016, petitioner gave birth to A.W. The DHHR filed a petition for abuse 

and neglect based upon the prior relinquishment of her parental rights. During the ensuing 

investigation, petitioner acknowledged the prior proceedings and admitted that she was “addicted 

to drugs to the extent that her parenting skills [were] impaired to a degree that pose[d] an 

imminent risk[.]” Several months later, the circuit court held an adjudicatory hearing during 

which petitioner admitted to the allegations of abuse and neglect as alleged in the petition. 

Accordingly, the circuit court granted petitioner an improvement period. The terms and 

conditions of the improvement period required petitioner to remain drug and alcohol free, to 

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va. 

254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013); 

State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 

W.Va. 641, 398 S.E.2d 123 (1990). 

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submit to random drug screens, to attend parenting and adult life skills classes, and to undergo a 

psychological evaluation. 

In July of 2016, the circuit court held a review hearing. In August of 2016, petitioner was 

evaluated in the office of Dr. Timothy Saar, a licensed psychologist. In the resulting 

psychological report, petitioner’s prognosis was listed as “extremely poor to non-existent.” The 

following month, the circuit court held a dispositional hearing during which it heard testimony 

from multiple witnesses. According to a DHHR worker, approximately two weeks after 

petitioner was granted an improvement period, she overdosed and had to be resuscitated, while 

the child was in her care. The worker further testified that petitioner enrolled in a substance 

abuse treatment program, but relapsed on heroin on June 16, 2016; that she provided two diluted 

drug screens since her overdose; that she produced a preliminary positive drug test for 

benzodiazepine; and that she failed to remedy her drug problem from the prior proceedings. 

Additionally, the circuit court heard evidence from Dr. Beverly Branson, a licensed psychologist 

that petitioner’s ability to parent or improve her ability to parent was “extremely poor to nonexistent.” Dr. Branson also noted that petitioner overdosed and relapsed during the current 

proceedings, and has failed to address her substance abuse which was present during the prior 

proceedings. 

Petitioner testified at the dispositional hearing that she used heroin during her drug 

treatment plan and she failed to inform the DHHR or Dr. Branson of the relapse. Petitioner also 

admitted that she did not comply with the other terms of her improvement period. By order 

entered November 2, 2016, the circuit court found that there was no reasonable likelihood that 

petitioner could substantially correct the issues of abuse and neglect in the near future and 

terminated her parental rights.2 This appeal followed. 

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). 

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According to the guardian, as of the filing of her response brief, the child’s nonoffending father was granted full care, custody, and control of A.W. with a permanency plan to 

remain in his care. 

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Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Further, our case law is clear that 

“in the context of abuse and neglect proceedings, the circuit court is the entity charged with 

weighing the credibility of witnesses and rendering findings of fact.” In re Emily, 208 W.Va. 

325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478, 

525 S.E.2d 669 (1999)); see also Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 

531, 538 (1997) (stating that “[a] reviewing court cannot assess witness credibility through a 

record. The trier of fact is uniquely situated to make such determinations and this Court is not in 

a position to, and will not, second guess such determinations.”). 

On appeal, petitioner argues that the circuit court erred in terminating her parental rights 

to A.W. based on her drug use. We strongly disagree. West Virginia Code § 49-4-604(a)(6) 

provides that circuit courts are directed to terminate parental rights upon finding that there is “no 

reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the 

near future” and that termination is necessary for the children’s welfare. Under West Virginia 

Code § 49-4-604(c)(3), “no reasonable likelihood that conditions of neglect or abuse can be 

substantially corrected” exists when “[t]he abusing parent . . . ha[s] not responded to or followed 

through with a reasonable family case plan or other rehabilitative efforts[.]” We have also held 

that “[t]ermination . . . may be employed without the use of intervening less[-]restrictive 

alternatives when it is found that there is no reasonable likelihood . . . that conditions of neglect 

or abuse can be substantially corrected.” Syl. Pt. 7, in part, In re Katie S., 198 W.Va. 79, 479 

S.E.2d 589 (1996). 

In this case, the evidence clearly supported the circuit courts finding that there was no 

reasonable likelihood that the conditions of neglect or abuse could be substantially corrected in 

the near future. During the dispositional hearing, the circuit court heard evidence that while 

petitioner successfully completed an improvement period in a prior abuse and neglect proceeding 

involve drug abuse, she continued to use drugs in the current proceedings. The circuit court also 

heard testimony that approximately two weeks after petitioner was granted an improvement 

period in this case, she overdosed on drugs and had to be resuscitated, while the child was in her 

care. The circuit court also heard testimony that while petitioner enrolled in a substance abuse 

treatment program, she relapsed on heroin on June 16, 2016; that she provided two diluted drug 

screens since her overdose; and that she produced a preliminary positive drug test for 

benzodiazepine. Furthermore, it is undisputed that petitioner admitted that she did not comply 

with the terms and conditions of her improvement period. For these reasons, the circuit court was 

required to terminate petitioner’s parental rights upon these findings pursuant to West Virginia 

Code § 49-4-604(a)(6). 

For the foregoing reasons, we hereby affirm the circuit court’s November 2, 2016, order. 

Affirmed. 

ISSUED: May 22, 2017 

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CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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