STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In re: S.S. and K.S. November 21, 2016 

RORY L. PERRY II, CLERK 

No. 16-0698 (Kanawha County 14-JA-288 & 15-JA-31) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother Z.T., by counsel Jason S. Lord, appeals the Circuit Court of Kanawha 

County’s June 24, 2016, order terminating her parental rights to eight-year-old S.S. and oneyear-old K.S.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”), Jennifer R. Victor, filed a response on behalf of the children also in support 

of the circuit court’s order. On appeal, petitioner alleges that the circuit court erred in denying 

her additional time for improvement and denying her post-termination visitation.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 September of 2014, the DHHR filed an abuse and neglect petition that alleged 

petitioner and the father engaged in domestic violence in the home. Additionally, the DHHR 

alleged that S.S., then six years old, told a school counselor that her father digitally penetrated 

her. During a later interview, the child disclosed that the father had done so on multiple 

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). Additionally, the Court notes that the proceedings below 

concerned an additional child, T.S., who is now deceased. 

2

We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and 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 on May 20, 2015. In this memorandum decision, we apply the statutes as they 

existed during the pendency of the proceedings below. It is important to note, however, that the 

abuse and neglect statutes underwent minor stylistic revisions and the applicable changes have 

no impact on the Court’s decision herein. 

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occasions.3 As such, the DHHR removed the child from the home under a protection plan.4 

Despite being advised of the child’s disclosure, petitioner continued her relationship with the 

father. Accordingly, the DHHR alleged that petitioner and the father failed to provide the child 

with necessary food, clothing, shelter, supervision, medical care, or education, and further 

alleged that they abused the child by knowingly or intentionally inflicting, or attempting to 

inflict, physical, mental, or emotional injury. Petitioner later waived her right to a preliminary 

hearing. 

During an adjudicatory hearing in November of 2014, petitioner stipulated to domestic 

violence and drug use. The circuit court also considered evidence of petitioner’s drug screen that 

was positive for amphetamines, opiates, and cannabinoids. As such, the circuit court found 

petitioner to be an abusing parent. Petitioner then moved for a post-adjudicatory improvement 

period. The circuit court held petitioner’s motion in abeyance and ordered her to comply with 

services that included domestic violence counseling, parenting education, supervised visitation, 

random drug screens, and a psychological evaluation. Thereafter, between December of 2014 

and March of 2015, petitioner tested positive for morphine on five occasions and opiates on one 

occasion. Additionally, in January of 2015, the circuit court granted petitioner’s motion for a 

post-adjudicatory improvement period. 

Following petitioner’s psychological examination, the report indicated that she admitted 

to smoking marijuana daily and to using the drug for approximately fifteen years. The report also 

indicated that petitioner had an “expressed lack of motivation for intervention with regard to 

substance abuse . . . ,” among other issues. As such, the psychologist expressed a “poor . . . 

prognosis for the reliable attainment of minimally adequate parenting.” 

In February of 2015, petitioner gave birth to K.S. The DHHR filed an amended petition 

to include this child that same month. However, the circuit court allowed the parents to keep K.S. 

in their care, although it warned them that the child would be removed upon a positive drug 

screen. Shortly thereafter, petitioner tested positive for morphine and opiates and refused 

additional drug screens. 

The DHHR filed a second amended petition in May of 2015 that alleged that the parents 

continued to abuse drugs and failed to cooperate with drug screens. According to the petition, 

both parents tested positive for opiates and K.S. tested positive for opiates and morphine at birth. 

Further, petitioner was required to undergo drug treatment as part of her improvement period, but 

failed to complete the program. As such, K.S. was removed from the parents’ custody in May of 

2015. The circuit court held an adjudicatory hearing on the amended petitions in July of 2015, 

during which it admitted positive drug screens for morphine from each parent into evidence. The 

circuit court found that both parents had substance abuse problems that negatively affected their 

ability to parent the children and caused them to abuse and neglect K.S. 

3

The allegations of sexual abuse were never substantiated and neither parent was 

adjudicated on any issue of sexual abuse. 

4

Neither K.S. nor T.S. was born at this time. 

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In October of 2015, the circuit court held a review hearing and admitted additional 

evidence of both parents’ positive drug screens for morphine. However, the circuit court granted 

the parents extensions to their improvement periods. The parents also sought assistance obtaining 

suitable housing, and the circuit court ordered the DHHR to provide the parents with first 

month’s rent and security deposits. 

In January of 2016, the DHHR filed a third amended complaint in regard to newly born 

T.S. The following month, the DHHR filed a fourth amended petition in regard to this child. 

According to the DHHR the child was born prematurely on January 9, 2016. The infant tested 

positive for morphine upon birth and also suffered from birth defects, some of which may have 

been due to a genetic defect and not solely due to a lack of prenatal care and drug abuse. T.S. 

eventually passed away due to the birth defects. In February of 2015, the circuit court held a 

preliminary hearing on the fourth amended complaint, during which it found that petitioner failed 

to obtain prenatal care despite knowledge of her pregnancy. The circuit court also found that the 

parents were presently homeless. Additionally, the circuit court found that petitioner’s 

improvement period had expired, although it ordered the DHHR to continue to provide remedial 

services until the dispositional hearing. 

In March and April of 2016, the circuit court held dispositional hearings, during which it 

admitted additional drug screens from both parents that were positive for morphine and opiates. 

Ultimately, the circuit court found that petitioner abused controlled substances to the extent that 

her parenting skills were seriously impaired. As such, the circuit court found there was no 

reasonable likelihood petitioner could substantially correct the conditions of abuse and neglect 

and that termination of her parental rights was necessary for the children’s welfare. By order 

entered on June 24, 2016, the circuit court terminated petitioner’s parental rights to the children. 

It is from this order that petitioner 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 

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). 

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To begin, the Court finds no merit to petitioner’s argument that the circuit court erred in 

denying her additional time for improvement, although it is unclear whether her claim relates to 

an extension of her post-adjudicatory improvement period or an improvement period as 

disposition. On appeal, petitioner argues that she substantially complied with the terms of her 

post-adjudicatory improvement period, as evidenced by testimony from a service provider who 

stated that petitioner participated in services and that services went well. Petitioner also argues 

that she obtained housing and employment during the proceedings. As such, petitioner argues 

that she was entitled to additional time for improvement below. The Court, however, does not 

agree, as petitioner’s argument ignores the fact that the main condition of abuse and neglect, 

namely petitioner’s substance abuse, continued unabated during the proceedings. 

We have previously held that 

“[a]t the conclusion of the improvement period, the court shall review the 

performance of the parents in attempting to attain the goals of the improvement 

period and shall, in the court’s discretion, determine whether the conditions of the 

improvement period have been satisfied and whether sufficient improvement has 

been made in the context of all the circumstances of the case to justify the return 

of the child[ren].” Syllabus Point 6, In the Interest of Carlita B., 185 W.Va. 613, 

408 S.E.2d 365 (1991). 

Syl. Pt. 4, In re Faith C., 226 W.Va. 188, 699 S.E.2d 730 (2010). Based upon the evidence 

below, the Court finds no abuse of discretion in the circuit court’s determination that petitioner 

failed to make sufficient improvement to justify the return of the children. In addition to the 

numerous positive drug screens that petitioner provided throughout the proceedings, the evidence 

shows that just one month prior to the review hearing on her post-adjudicatory improvement 

period, petitioner gave birth to a child who tested positive for morphine. Further, petitioner was 

directed to undergo substance abuse treatment, but failed to complete the same. As such, it is 

clear that petitioner failed to make sufficient progress in regard to correcting her substance abuse 

issues such that the circuit court could return the children to her care. 

Moreover, petitioner was not entitled to an additional improvement period as disposition 

because of her continued drug abuse. According to West Virginia Code § 49-4-610(3)(D), a 

circuit court may only grant an improvement period as disposition when the parent has already 

received an improvement period if the parent “demonstrates that since the initial improvement 

period, the [parent] has experienced a substantial change in circumstances.” The record here is 

clear that petitioner failed to satisfy this burden. While it is true that petitioner did comply with 

some services, such compliance does not constitute a substantial change in circumstances in light 

of her continued substance abuse. For these reasons, we find no error in the circuit court denying 

petitioner either an extension to her post-adjudicatory improvement period or an improvement 

period as disposition. 

Finally, the Court finds no error in the circuit court denying petitioner post-termination 

visitation with the children. We have previously held as follows: 

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“When parental rights are terminated due to neglect or abuse, the circuit 

court may nevertheless in appropriate cases consider whether continued visitation 

or other contact with the abusing parent is in the best interest of the child. Among 

other things, the circuit court should consider whether a close emotional bond has 

been established between parent and child and the child’s wishes, if he or she is of 

appropriate maturity to make such request. The evidence must indicate that such 

visitation or continued contact would not be detrimental to the child’s well being 

and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va. 

446, 460 S.E.2d 692 (1995). 

Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002). Upon our review, it is clear 

that the petitioner failed to establish a close emotional bond with either child. Specifically, the 

evidence shows that K.S. was removed from petitioner’s custody as an infant. Moreover, S.S. is 

currently undergoing therapy as a result of the abuse and neglect in petitioner’s home. As such, it 

is clear that continued contact with petitioner would not be in the children’s best interests, and 

we find no error in the circuit court denying post-termination visitation. 

For the foregoing reasons, we find no error in the circuit court’s June 24, 2016, order, and 

we hereby affirm the same. 

Affirmed. 

ISSUED: November 21, 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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