1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re C.R.

No. 19-0797 (Kanawha County 18-JA-216)

MEMORANDUM DECISION

Petitioner Mother J.R., by counsel Rebecca Stollar Johnson, appeals the Circuit Court of 

Kanawha County’s July 30, 2019, order terminating her parental rights to C.R.

1 The West Virginia 

Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N. Felton-Ernest, 

filed a response in support of the circuit court’s order. The guardian ad litem, Elizabeth G. Kavitz, 

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 April of 2018, the DHHR filed a child abuse and neglect petition alleging that 

petitioner’s parental rights to her older children were previously terminated on the basis of 

substance abuse, failure to provide for the children, and failure to participate in services. The 

DHHR further alleged that she failed to remedy those conditions. The DHHR alleged that 

petitioner attempted to evade West Virginia Child Protective Service workers by traveling to 

Tennessee to give birth to C.R. The DHHR also alleged that the father called the authorities

disclosing that petitioner was “losing her mind” and hiding in the woods with the three-month-old 

child. According to the DHHR, the child was caked in mud when found and a hair was wrapped 

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).

FILED

April 6, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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so tightly around one of the child’s toes that she required medical intervention.2 Petitioner waived 

her right to a preliminary hearing and was ordered to participate in random drug screening.

On October 2, 2018, the circuit court held the adjudicatory hearing. The DHHR presented 

testimony from petitioner’s case worker that petitioner attempted to evade the DHHR by giving 

birth to her child out of state. The DHHR worker explained that petitioner’s prior termination of 

parental rights was based on substance abuse and failure to protect her children. The worker 

testified that, based on petitioner’s extreme lengths to avoid the DHHR in this case, the worker did 

not believe the circumstances giving rise to the prior termination had changed. However, she

admitted that petitioner had submitted to drug screening during this proceeding and provided 

consistently negative drug screens.

Petitioner testified and denied the allegations that the child was caked in mud when 

removed by the DHHR. Petitioner further testified that she had made significant changes since the 

prior case. According to petitioner, she was attending therapy, was now substance free, and 

maintained appropriate housing with the father. Petitioner admitted, however, that she was 

“screaming and fighting” with the father the night that the child was removed, but asserted there 

was no physical violence that night. Petitioner also admitted that, after the DHHR removed C.R. 

from her care, she “kind of went a little crazy” and was arrested for destruction of property after 

“beating up . . . BMWs” in the Charleston Town Center Mall. As a result, petitioner was 

incarcerated for “about two weeks.” 

Following the presentation of evidence, the DHHR moved for the circuit court to adjudicate 

petitioner as an abusing parent and to accelerate disposition and terminate her parental rights that 

day. Ultimately, the circuit court granted the DHHR’s motion. The circuit court found that 

petitioner had not remedied the conditions that led to the prior termination of her parental rights. 

Further, the circuit court found that the best interests of C.R. required termination of petitioner’s 

parental rights. Accordingly, the circuit court terminated petitioner’s parental rights by its October 

18, 2018, order. Petitioner did not appeal that order.3

In July of 2019, the circuit court held a properly noticed dispositional hearing, wherein it 

vacated the October 18, 2018, dispositional order as it related to petitioner’s parental rights. 

Petitioner did not appear, but was represented by counsel. A DHHR worker testified that petitioner 

was noncompliant with services in her prior abuse and neglect proceeding and, as a result, was 

unable to address her substance abuse. The worker testified that, after petitioner’s parental rights 

were terminated in the prior case, she continued to associate with the father and was caught in his 

home with the children. Due to her continued association, the father’s parental rights were

2

The DHHR amended the petition in July of 2018 to include the father as a respondent. 

The DHHR alleged that father’s parental rights to other children were previously involuntarily 

terminated and that his circumstances since that termination were unchanged.

3

The father appealed the circuit court’s October 18, 2018 order. Upon review, this Court 

found that the circuit court erred in holding an accelerated dispositional hearing and vacated the 

court’s dispositional order and remanded the case with regard to the father’s parental rights. See 

In re C.R., No. 18-1011, 2019 WL 1766175 (W. Va. April 19, 2019)(memorandum decision).
3

ultimately terminated and the children’s permanency was jeopardized. Since the filing of the 

current petition, the worker explained that petitioner continued to jeopardize the children’s 

permanency and abuse controlled substances. In April of 2019, one of petitioner’s children 

provided the worker with a “video footage of [petitioner acting] . . . belligerently high” in the living 

room of the child’s relative foster placement. The DHHR worker also testified that, on another 

occasion in May of 2019, one of petitioner’s children called her from the same relative foster 

placement “crying his eyes out and screaming.” In the background of this phone call, the DHHR 

worker could hear petitioner and the father “yelling” and heard the father tell the child to “hang up 

the phone.”4 Based on these events, the worker believed that petitioner’s circumstances had not 

changed from the prior proceeding in which her parental rights were terminated. Accordingly, she 

recommended termination of petitioner’s parental rights to C.R. Petitioner presented no evidence, 

but moved the circuit court to order her to participate in thirty days of drug screening.

Ultimately, the circuit court denied petitioner’s motion and terminated her parental rights. 

The circuit court found that petitioner continued to engage in domestic violence with the father 

and exhibited an on-going drug problem. As a result, the court found that petitioner had not 

remedied the conditions that led to her prior termination of parental rights. The court concluded 

that there was no reasonable likelihood that the conditions of neglect or abuse could be 

substantially corrected and that termination was in the child’s best interests. The circuit court 

memorialized its decision in its July 30, 2019, order. Petitioner now appeals that order.5

The Court has previously held:

“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). Upon review, this Court finds no 

error in the proceedings below.

4

As a result of petitioner’s consistent interference in her children’s relative foster 

placement, the children were necessarily moved and struggled to find permanent placement.

5

The father’s parental rights were also terminated below. According to the parties, the 

permanency plan for the child is adoption in her current foster placement.
4

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

because she proved that the conditions surrounding the prior termination of her parental rights had 

been remedied. In support, petitioner references the negative drug screens she submitted during 

the proceedings as clear evidence that her substance abuse had been remedied. Petitioner asserts 

that the circuit court should have provided her an opportunity to further show that she remedied 

the conditions through services. We find petitioner’s argument to be without merit.

West Virginia Code § 49-4-604(b)(6) provides that a circuit court may terminate a parent’s 

parental rights upon findings 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 

welfare of the child. A court may find that there is “no reasonable likelihood that the conditions of 

neglect or abuse can be substantially corrected” when “[t]he abusing parent . . . [has] not responded 

to or followed through with a reasonable family case plan or other rehabilitative efforts of social, 

medical, mental health, or other rehabilitative agencies designed to reduce or prevent the abuse or 

neglect of the child.” W. Va. Code § 49-4-604(c)(3). We have acknowledged that “the legislature 

has reduced the minimum threshold of evidence necessary for termination [of parental rights] 

where one of the factors outlined in [W. Va. Code § 49-4-605] is present,” such as the termination 

of parental rights to the sibling of a child named in the petition. Syl. Pt. 2, in part, In re George 

Glen B., Jr., 205 W. Va. 435, 518 S.E.2d 863 (1999). However, “prior to the [circuit] court’s . . . 

disposition regarding the petition, it must allow the development of evidence surrounding the prior 

involuntary termination(s) and what actions, if any, the parent(s) have taken to remedy the 

circumstances which led to the prior termination(s).” Id. at 437, 518 S.E.2d at 865, syl. pt. 4, in 

part.

We find that petitioner’s argument on appeal ignores substantial negative evidence 

introduced at the adjudicatory and dispositional hearings that the conditions related to her prior 

termination of parental rights were ongoing. Testimony produced at the adjudicatory hearing 

showed that petitioner continued to associate with the father and that they engaged in domestic 

quarrels that required law enforcement intervention. Although petitioner insisted she achieved

mental stability, she admitted that she “kind of went a little crazy” and destroyed property in a 

public place, which lead to her incarceration. Likewise, petitioner’s assertions that she remained 

substance free were proven false at the dispositional hearing. Video evidence showed that 

petitioner was “belligerently high” in the presence of her child in April of 2019. Critically, 

petitioner was offered an array of services in her prior abuse and neglect proceeding, but failed to 

fully participate in those services. “[T]he [circuit] court should give due consideration to the types 

of remedial measures in which the parent(s) participated or are currently participating and whether 

the circumstances leading to the prior involuntary termination(s) have been remedied.” Id., syl. pt. 

5, in part. It appears from the record that any services petitioner was offered or participated in had 

no remedial effect and that the conditions of the prior termination continued unabated. Contrary to 

petitioner’s argument on appeal, the circuit court provided her a sufficient opportunity to show

that she remedied the conditions which led to her prior termination, but the DHHR proved that her 

current situation was relatively unchanged. The circuit court found that there was no reasonable 

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

termination was necessary for the welfare of C.R., and those findings are supported by the abovereferenced evidence. Accordingly, we find no error in the circuit court’s termination of petitioner’s 

parental rights.
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For the foregoing reasons, we find no error in the decision of the circuit court, and its July

30, 2019, order is hereby affirmed.

Affirmed.

ISSUED: April 6, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison