STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In re: J.M. April 12, 2016 

RORY L. PERRY II, CLERK 

No. 15-0893 (Summers County 14-JA-24) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother H.S., by counsel Ryan H. Keesee, appeals the Circuit Court of 

Summers County’s August 21, 2015, order terminating her parental rights to J.M. The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel Christopher S. 

Dodrill, filed its response in support of the circuit court’s order and a supplemental appendix. 

The guardian ad litem (“guardian”), Martha J. Fleshman, filed a response on behalf of the child 

also in support of the circuit court’s order. On appeal, petitioner raises two grounds. First, 

petitioner argues that the circuit court erred in denying her motion for an extension of her postadjudicatory improvement period.1 Second, she claims that the circuit court erred in terminating 

her parental rights to the child. Following a thorough review, we find no error in the circuit 

court’s August 21, 2015, order.2 

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 October of 2014, the DHHR filed an abuse and neglect petition against petitioner and 

the child’s father. In that petition, the DHHR alleged that it received a referral on October 17, 

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In her brief to this Court, petitioner refers to the denial of her motion for a “renewed” 

post-adjudicatory improvement period. However, she cites no portion of the record on appeal 

containing a motion for a “renewed” improvement period, and she fails to cite any authority in 

West Virginia’s child abuse and neglect jurisprudence allowing for a “renewed” improvement 

period. It appears that petitioner intended to appeal the denial of her motion for an extension of 

her post-adjudicatory improvement period in March of 2015, and we review the contention as 

such. 

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We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and 

recodified during the 2015 Regular Session of the West Virginia Legislature. The new 

enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and 

became effective ninety days after the February 19, 2015, approval date. In this memorandum 

decision, we apply the statutes as they existed during the pendency of the proceedings below. 

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2014, that petitioner’s then three-year-old child was found playing in a “busy alley” without 

supervision and while wearing only a diaper. The DHHR further alleged that a child protective 

services (“CPS”) worker arrived on October 17, 2014, to find the child with petitioner’s 

neighbors, who removed the child from the alley. According to the DHHR, the CPS worker also 

found that broken glass and debris were littered about the outside of the residence; that petitioner 

and the child’s father were asleep inside the residence and difficult to waken; that ants were seen 

crawling on dirty dishes in the kitchen sink and countertop; that the refrigerator was dirty and 

had little food; that the child slept on a bare mattress on the floor in the living room and had no 

toys; that a witness observed the child’s father kick the child “across the room” and observed 

both parents “snorting pain pills” resulting in a general neglect of the child when they did so. The 

DHHR also noted in its petition that petitioner tested in the vocabulary level of a nine-year-old. 

In December of 2014, the circuit court held an adjudicatory hearing. Petitioner stipulated 

to the allegations in the petition. Based on that stipulation, the circuit court found that petitioner 

was an abusing parent and that the child was an abused and neglected child. Thereafter, 

petitioner moved for a post-adjudicatory improvement period, which the circuit court granted. 

Among the terms of the improvement period, petitioner was directed to submit to random drug 

screens; to participate in parenting and adult life skills classes; and to submit to a psychological 

parental fitness evaluation. 

In January of 2015, petitioner underwent a psychological evaluation with Dr. L. Andrew 

Steward, Ph.D. In his psychological report, Dr. Steward indicated that petitioner, who had two 

sons, had a history of CPS involvement, with eleven referrals to that agency between 2006 and 

2014. According to the psychological report, those referrals included allegations of child 

malnutrition; poor child hygiene; inadequate housing; petitioner having a child with a registered 

sex offender, whom she allowed to change the child’s diaper; and an incident wherein the oldest 

child, then four years old, was allegedly scalded in a bathtub when petitioner left that child in the 

bathtub unattended to speak with a visitor in the home. Dr. Steward also noted petitioner’s 

criminal history, which included charges of animal cruelty and domestic violence. Dr. Steward 

then testified about the tests he performed on petitioner to analyze her social and cognitive 

functioning. According to Dr. Steward, the results of that testing showed that petitioner 

functioned “in the Mild Intellectual Disability range and would have difficulty intellectually 

caring for” the child. In sum, he concluded in his report “that [petitioner] could not effectively 

take care of children independently and this indeed would be precarious for” the child. 

Petitioner failed to provide any drug screens from February to April of 2015. In March of 

2015, the circuit court held a review hearing in this matter. At this hearing, petitioner moved for 

an extension of her post-adjudicatory improvement period. The DHHR opposed petitioner’s 

motion based on Dr. Steward’s psychological report. At the conclusion of the hearing, the circuit 

court denied petitioner’s motion and scheduled a dispositional hearing. 

In May of 2015, the circuit court held a dispositional hearing. A DHHR worker, a service 

provider, and Dr. Steward testified as to petitioner’s history, current parenting abilities, and 

conduct during the proceedings. The DHHR worker testified that petitioner failed to demonstrate 

that she could properly parent the child. When questioned on cross-examination whether the 

DHHR’s position was based solely on petitioner’s psychological evaluation and intellectual 

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ability, the DHHR worker stated that it was “[n]ot just based on that, but based on everything.” 

The DHHR worker explained that the psychological evaluation provided part of the DHHR’s 

concern, but the service providers also provided reports on petitioner’s failure to progress during 

her required services. Thereafter, the service provider testified that petitioner attended parenting 

and adult life skills classes, but she failed in “actually gaining and putting to use” what was 

taught. The service provider explained that she did not “feel like anything is being internalized at 

this point.” Dr. Steward testified to the findings and conclusions in his report, but he specifically 

noted that an intellectual disability alone does not prohibit a person from being an adequate 

parent. Dr. Steward explained that all of the circumstances of a person’s parenting must be 

considered in evaluating parental fitness. Here, Dr. Steward noted that petitioner’s failure to 

provide adequate supervision for the child is one such contributing factor to determine total 

parental fitness. He concluded that no rehabilitative services could be provided to petitioner to 

correct the conditions that led to the neglect. Based on the evidence presented, by order entered 

on August 21, 2015, the circuit court terminated petitioner’s parental rights to the child. 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). 

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). 

Petitioner first claims that the circuit court erred in denying her motion for an extension 

of her post-adjudicatory improvement period. West Virginia Code § 49-6-12(g) provides as 

follows: 

A court may extend [an] improvement period . . . for a period not to 

exceed three months when the court finds that the [subject parent] has 

substantially complied with the terms of the improvement period; that the 

continuation of the improvement period will not substantially impair the ability of 

the [DHHR] to permanently place the child; and that such extension is otherwise 

consistent with the best interest of the child. 

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In support of her position, petitioner claims that “some progress had been made” during her 

improvement period due to her attendance in parenting and adult life skills classes and her 

negative drug screens. However, our review of the record reveals that petitioner did not 

substantially comply with her improvement period. First, even under petitioner’s categorization 

of her efforts, “some progress” clearly fails to satisfy the requirement that she substantially 

comply with the terms of her improvement period. Second, notwithstanding her attendance at the 

subject classes, the testimony before the circuit court demonstrates that petitioner failed to 

“internalize” and apply the principles taught in those classes. Moreover, petitioner failed to 

submit to required drug screens for approximately two months of her improvement period. 

Without proof of substantial compliance with her post-adjudicatory improvement period, we find 

that an extension of those efforts was unwarranted. As such, we find no merit to this assignment 

of error. 

Petitioner’s second contention is that the circuit court erred in terminating her parental 

rights to the child. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to 

terminate parental rights upon findings that there is no reasonable likelihood the conditions of 

abuse and neglect can be substantially corrected in the near future and when necessary for the 

child’s welfare. West Virginia Code § 49-6-5(b) provides that no reasonable likelihood that the 

conditions of abuse or neglect 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). 

Here, while petitioner argues that the circuit court’s ruling relied solely on her intellectual 

ability to parent, as reported by Dr. Steward, it is clear that the circuit court relied on other 

evidence to support its termination order. Petitioner failed to submit to required drug screens for 

a prolonged period in this matter. Petitioner’s service provider specifically testified that 

petitioner had not internalized the lessons provided, and Dr. Steward testified that, based on the 

circumstances, no rehabilitative services could be provided to her that would achieve the desired 

results. Petitioner admitted to child neglect due to her inadequate care for and lack of supervision 

of the child. Thereafter, she was provided with an improvement period in order to substantially 

correct those issues. She failed to do so. The evidence supports the finding that petitioner failed 

to follow through with reasonable rehabilitative efforts in this case. 

Moreover, to the extent the circuit court considered petitioner’s intellectual capacity, this 

Court has held that termination may occur on such allegations in certain circumstances. In 

Syllabus Point 4 of In re Billy Joe M., 206 W.Va. 1, 521 S.E.2d 173 (1999), this Court explained 

as follows: 

[w]here allegations of neglect are made against parents based on 

intellectual incapacity of such parent(s) and their consequent inability to 

adequately care for their children, termination of rights should occur only after the 

social services system makes a thorough effort to determine whether the parent(s) 

can adequately care for the children with intensive long-term assistance. In such 

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case, however, the determination of whether the parents can function with such 

assistance should be made as soon as possible in order to maximize the 

child(ren)’s chances for a permanent placement. 

While long-term assistance must generally be considered in such cases, the testimony in this case 

revealed that any such long-term assistance would be unable to correct the issues presented. 

Based on the circumstances of this case, we find no error in the circuit court’s termination 

of petitioner’s parental rights. The evidence presented below supports the findings that there was 

no reasonable likelihood that the 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. 

For the foregoing reasons, the circuit court’s August 21, 2015, termination order is 

hereby affirmed. 

Affirmed. 

ISSUED: April 12, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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