STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED In re: A.H. 

January 8, 2018 

No. 17-0816 (Wayne County 17-JA-057) EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother N.H., by counsel Michael A. Meadows, appeals the Circuit Court of 

Wayne County’s August 10, 2017, order terminating her parental rights to A.H.1 The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a 

response in support of the circuit court’s order. The guardian ad litem (“guardian”), Melia Atwell 

Adkins, filed a response on behalf of the child in support of the circuit court’s order. On appeal, 

petitioner argues that the circuit court erred in terminating her parental rights without first 

granting an improvement period. 

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 May of 2017, the DHHR filed an abuse and neglect petition against petitioner and 

A.H.’s father. The DHHR alleged that at the child’s birth, both petitioner and the child tested 

positive for marijuana. The DHHR alleged that petitioner had a history of drug abuse, which led 

to the involuntary termination of her parental rights to two older children in January of 2016. The 

DHHR noted that she was not successful in the numerous times she attempted substance abuse 

treatment and could not maintain sobriety. The DHHR alleged that A.H. was petitioner’s second 

child to be born “drug exposed” and that petitioner reported a ten-year-long addiction to opiates 

and other drugs, including use of heroin, Suboxone, and marijuana. Further, petitioner and the 

father lived in a recreational vehicle (“RV”) next to the father’s mother’s home. An extension 

cord connected to the home provided electricity for the RV, but the parents had to go into her 

house to use the kitchen or bathroom and to obtain water. The DHHR alleged aggravated 

circumstances existed due to the prior involuntary termination of petitioner’s parental rights to 

two older children and that impending and present dangers existed as a result of one or both 

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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caregivers’ lack of parenting knowledge, skills, or motivation which affected child safety; that 

the caregivers’ drug and/or alcohol abuse was pervasive and threatened child safety; and, that 

one or both caregivers could not control their behavior. Later in May, petitioner and the father 

waived their preliminary hearing. 

The circuit court held an adjudicatory hearing in June of 2017. Petitioner was not present 

but was represented by counsel. According to petitioner’s counsel, petitioner was attending a 

medical appointment and the father, who was also absent, had chosen to drive her to the 

appointment. The circuit court denied the parents’ motions to continue and heard evidence. The 

circuit court found that petitioner had not been in contact with the social worker since the 

preliminary hearing, failed to appear at a scheduled multidisciplinary team (“MDT”) meeting, 

failed to obtain random drug screens, and did not participate in supervised visits with the child. 

Further, the circuit court found that there was clear and convincing evidence that the child was 

abused and neglected by the parents based upon their substance abuse issues, by the child being 

born addicted to drugs, and by the parents’ failure to cooperate with the DHHR. Accordingly, the 

circuit court adjudicated petitioner as an abusing parent and rescinded supervised visits until she 

made an appearance before the circuit court and cooperated with the DHHR. 

In August of 2017, the circuit court held a dispositional hearing. Petitioner requested a 

post-adjudicatory improvement period and testified that she had missed the adjudicatory hearing 

because her primary care physician referred her to a specialist for pain in her hands. Petitioner 

stated that the test she underwent on the day of the adjudicatory hearing revealed that she had 

carpal tunnel syndrome. When asked why she had not been in contact with the CPS worker, 

petitioner testified that she had tried to make a few telephone calls, but experienced difficulty 

contacting someone when their CPS worker was changed. Further, petitioner also alleged that the 

new CPS worker had the wrong phone number for petitioner and the father. However, on crossexamination, petitioner admitted that she had been in and out of town working on construction 

jobs. Despite testing positive for marijuana immediately prior to the hearing, petitioner stated 

that she did not test positive for opiates, as she did at her first hearing, because the marijuana was 

helping her “come off” the other drugs. Petitioner testified that she wanted to obtain sobriety in 

order to be a mother to her children, attend school, and succeed in life. After hearing petitioner’s 

testimony, the circuit court found that petitioner failed to cooperate with the DHHR, failed to 

stay in touch with her attorney, failed to stay in touch with the CPS worker, and failed to 

participate in drug screens. Further, the circuit court noted that petitioner put a very minor 

elective medical procedure and potential employment opportunities before the custody of the 

child. The circuit court also found that petitioner continued to abuse drugs. Finally, the circuit 

court found that there were aggravating circumstances in the case due to petitioner’s prior 

involuntary termination of her parental rights to two older children. Ultimately, the circuit court 

found that there was no reasonable likelihood that petitioner could correct the conditions of 

abuse. The circuit court also found petitioner seemed to lack the desire to correct the conditions. 

Finding that the child needed stability and permanency, and that termination was necessary for 

her welfare, the circuit court denied petitioner’s motion for a post-adjudicatory improvement 

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period and terminated her parental rights.2 It is from this dispositional order dated August 10, 

2017, 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). 

Petitioner argues on appeal that the circuit court erred in terminating her parental rights 

without first granting her an improvement period. We disagree. The decision to grant or deny an 

improvement period rests in the sound discretion of the circuit court. See In re: M.M., 236 W.Va. 

108, 115, 778 S.E.2d 338, 345 (2015) (holding that “West Virginia law allows the circuit court 

discretion in deciding whether to grant a parent an improvement period”); Syl. Pt. 6, in part, In re 

Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (holding that “[i]t is within the court’s discretion 

to grant an improvement period within the applicable statutory requirements”). We have also 

held that a parent’s “entitlement to an improvement period is conditioned upon the ability of the 

[parent] to demonstrate ‘by clear and convincing evidence, that the [parent] is likely to fully 

participate in the improvement period . . . .’” In re: Charity H., 215 W.Va. 208, 215, 599 S.E.2d 

631, 638 (2004). 

Here, the record establishes that petitioner failed to demonstrate her ability to fully 

participate in an improvement period. Throughout the underlying proceedings, petitioner failed 

to maintain contact with the DHHR and her attorney. She did not participate in random drug 

screens as ordered by the circuit court, nor did she visit with her child. In fact, petitioner testified 

that part of the reason she did not keep in touch with her CPS worker was because she traveled 

out of town for work. Despite knowing the gravity of the circumstances, petitioner chose to 

attend a medical appointment regarding her carpal tunnel syndrome rather than attend her own 

adjudicatory hearing. Further, petitioner tested positive for marijuana at the dispositional hearing. 

Petitioner’s argument that she would participate in a plan to address her substance abuse is 

unpersuasive as petitioner lost her parental rights to two older children based on her substance 

2

The father’s parental rights were also terminated in the proceedings below. The 

permanency plan for A.H. is adoption by an aunt. 

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abuse. In fact, petitioner went through prior proceedings for similar circumstances when another 

child was born exhibiting symptoms of drug withdrawal. Petitioner attempted to enter drug 

rehabilitation programs but ultimately continued to abuse controlled substances, despite being 

offered services in the prior proceedings. While petitioner argues that she would successfully 

complete an improvement period if given the chance, her actions during both the prior and 

instant proceedings show a complete lack of compliance with what was required of her. 

Accordingly, we find no error in the circuit court’s decision denying petitioner an improvement 

period. 

Moreover, we find no error in the termination of petitioner’s parental rights. West 

Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate 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 child’s 

welfare. Pursuant to West Virginia Code § 49-4-604(c)(3), a situation in which there is no 

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

include one in which 

[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, as evidenced by the continuation or insubstantial 

diminution of conditions which threatened the health, welfare or life of the child. 

The record demonstrates that there was no reasonable likelihood that petitioner would 

correct the conditions of abuse and neglect. This is petitioner’s second time participating in 

abuse and neglect proceedings. Petitioner’s prior involuntary termination of her parental rights 

was due in part to her substance abuse. Knowing that her parental rights had previously been 

terminated on similar bases, petitioner tested positive at her preliminary and dispositional 

hearings, the only two times she screened throughout the proceedings. We have previously held 

as follows: 

[w]here there has been a prior involuntary termination of parental rights to 

a sibling, the issue of whether the parent has remedied the problems which led to 

the prior involuntary termination sufficient to parent a subsequently-born child 

must, at minimum, be reviewed by a court, and such review should be initiated on 

a petition pursuant to the provisions governing the procedure in cases of child 

neglect or abuse set forth in West Virginia Code §§ 49-6-1 to -12 (1998) [now 

West Virginia Code §§ 49-4-601 through 49-4-610]. Although the requirement 

that such a petition be filed does not mandate termination in all circumstances, the 

legislature has reduced the minimum threshold of evidence necessary for 

termination where one of the factors outlined in West Virginia Code § 49-6-5b(a) 

(1998) [now West Virginia Code § 49-4-605(a)] is present. 

In re Kyiah P., 213 W.Va. 424, 427, 582 S.E.2d 871, 874 (2003) (quoting Syl. Pt. 2, In the 

Matter of George Glen B., 205 W.Va. 435, 518 S.E.2d 863 (1999)). Clearly, petitioner failed to 

remedy the same issues that led to her prior involuntary termination of parental rights. Further, 

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petitioner failed to attempt to have her visitation rights reinstated after having them suspended at 

the adjudicatory hearing due to her failure to cooperate with the DHHR. While petitioner argues 

that her parental rights should not have been terminated without granting her an improvement 

period, we have previously held that 

“[t]ermination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, W. Va.Code [§] 

49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the 

use of intervening less restrictive alternatives when it is found that there is no 

reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code 

§ 49-4-604(c)] . . . that conditions of neglect or abuse can be substantially 

corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980). 

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Based on the evidence outlined 

above, we agree with the circuit court’s finding that there was no reasonable likelihood that 

petitioner would correct the conditions of abuse and/or neglect and that termination was 

necessary for the child’s welfare. 

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

August 10, 2017, order is hereby affirmed. 

Affirmed. 

ISSUED: January 8, 2018 

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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