STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In Re: L.B., M.B., D.B., D.B, & W.E. May 18, 2015 

RORY L. PERRY II, CLERK 

No. 14-0906 (Webster County 13-JA-55 through 13-JA-59) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother P.B., by counsel Daniel R. Grindo, appeals the Circuit Court of 

Webster County’s August 13, 2014, order terminating her parental rights to L.B., M.B., D.B.-1, 

D.B.-2, and W.E.1 The West Virginia Department of Health and Human Resources (“DHHR”), 

by counsel Christopher Dodrill, filed its response in support of the circuit court’s order. The 

guardian ad litem for the children (“guardian”), Mary Elizabeth Snead, filed a response on behalf 

of the children supporting the circuit court’s order. On appeal, petitioner argues that the circuit 

court erred in finding (1) that there was no reasonable likelihood that she could substantially 

correct the conditions of neglect and (2) that termination was in the children’s best interests. 

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 August of 2013, the DHHR filed an abuse and neglect petition against petitioner 

alleging that she exposed the children to unsuitable housing conditions.2 According to the 

petition, the home had “garbage piled up extensively throughout”; dog feces on the floors, which 

the children were observed trying to “clean” with their bare hands; blood from rotted meat and 

other spoiled food in the refrigerator, with very little edible food in the home; and an odor of 

garbage and urine that “was strong enough to burn the investigators [sic] eyes and make 

breathing in the home difficult[.]” At the September 5, 2013, adjudicatory hearing, petitioner 

stipulated to most of the allegations in the petition as to the condition of her home. Based upon 

her stipulations, the circuit court found that petitioner neglected her children. 

In October of 2013, the circuit court held a dispositional hearing. Petitioner testified that 

she had begun to clean and repair the home, but it remained incomplete. She also still owned 

1

Because two children share the same initials, the Court will refer to these children as 

D.B.-1 and D.B.-2. The circuit court case numbers also serve to distinguish these children. 

2

The petition also set forth allegations against the father of L.B., M.B., D.B.-1, and D.B.­

2 and the father of W.E., but the parental rights of those fathers are not at issue in this appeal. 

1


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

four dogs, two cats, and two horses. Further, petitioner could not explain how she spent her 

income from multiple sources given that she paid no rent, cable, water, or sewer expenses in her 

home, and the DHHR had covered her utility expenses for some time. Child Protective Services 

(“CPS”) worker Patricia Myers testified that petitioner refused to follow through with the 

recommendation that she prepare menus within her budget and said that she could not afford to 

provide food during her visits with the children. Testimony further established that the home 

remained uninhabitable with dog feces still present on the floor, piled clothes, broken windows, 

and an exposed stove pipe dangerously close to the ceiling. Although expressing reservations 

with petitioner’s lack of progress, Ms. Myers recommended that petitioner receive an 

improvement period, which the circuit court reluctantly granted. The improvement period 

included therapy and adult life skills and parenting classes; these classes included budgeting 

skills and home maintenance. Importantly, the circuit court specifically required that the home be 

habitable within sixty days. 

In March of 2014, the circuit court held a hearing on the DHHR’s motion to revoke 

petitioner’s improvement period and terminate her parental rights. Petitioner testified to her 

efforts to correct the conditions in the home, including corrections to one window and the stove 

pipe’s proximity to the ceiling, but she admitted that additional problems persisted, including 

other broken windows, difficulty with her heater, and a lack of running water. The DHHRcontracted service provider, Lori Pierce, testified that, despite extensive services, petitioner had 

not complied with Ms. Pierce request to see her monthly bills, and the home still contained dog 

feces, broken windows, and an uncaged, live chicken. Ms. Pierce concluded that petitioner made 

no major progress in her services, despite recent efforts. After taking the DHHR’s motion under 

advisement, the circuit court ultimately set the matter for a third dispositional hearing and 

ordered the DHHR to conduct weekly home visits to review petitioner’s progress. 

In May of 2014, the circuit court held its third dispositional hearing. The DHHR called 

multiple CPS workers and other providers who testified that, despite petitioner’s efforts to 

improve its conditions, her home remained unsuitable for children. According to the testimony, 

her home still lacked running water, and much of petitioner’s furniture, including the 

refrigerator, had been repossessed. The circuit court again took the DHHR’s motion under 

advisement, and it granted petitioner additional time to address the remaining conditions of her 

home, specifically her lack of running, or even potable, water. 

In July of 2014, the circuit court held a final dispositional hearing. Testimony established 

that petitioner attempted to renovate a water tank existing on the property. The DHHR called a 

Webster County sanitary worker who testified to the results of water testing performed on the 

water available through that tank. The sanitary worker explained that the water tested positive for 

coliforms and E. Coli, which are not safe for human consumption, and the current system would 

require a purification process to make potable water. Testimony further established that dog 

feces remained throughout the home and that petitioner had recently been convicted for 

misdemeanor animal cruelty, which she admitted. Despite petitioner’s efforts to provide suitable 

housing “real soon,” the guardian joined in the DHHR’s motion to terminate petitioner’s parental 

rights in order to achieve permanency for the children. Based upon the evidence presented 

throughout these proceedings, the circuit court terminated petitioner’s parental rights. It is from 

that order that petitioner now appeals. 

2


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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). With that standard in mind, we 

turn to petitioner’s assignments of error. 

On appeal, petitioner first argues that the circuit court erred in finding that there was no 

reasonable likelihood that she could substantially correct the conditions of abuse and neglect. 

Pursuant to West Virginia Code § 49-6-5(b)(3), a respondent parent’s failure to respond or 

follow through with a reasonable family case plan or other rehabilitative efforts constitutes 

circumstances in which there is no reasonable likelihood that the conditions of abuse or neglect 

can be substantially corrected. Further, West Virginia Code § 49-6-5(a)(6) expressly provides for 

termination “upon a finding that there is no reasonable likelihood that the conditions of neglect 

or abuse can be substantially corrected in the near future” and when necessary for the child’s 

welfare. The record clearly demonstrates that petitioner failed to follow through with 

rehabilitative efforts. Throughout the proceedings below, the circuit court heard evidence of dog 

feces present in petitioner’s home on multiple occasions; no running water or access to clean, 

potable water; the need for significant repairs to the home; and contaminated water in her 

proposed water system. One DHHR employee testified that these conditions persisted 

approximately eleven months after the petition’s filing. Ultimately, petitioner had more than 

eleven months to substantially correct the neglectful conditions present in her home, but she 

failed to do so. Although petitioner argues, and it is uncontested, that she completed several 

repairs to her home, the circuit court did not err in finding that a home with dog feces and no 

running water is not fit, apt, and suitable for children. As such, we find no error in the circuit 

court’s ruling that there was no reasonable likelihood that petitioner could substantially correct 

the conditions of neglect in the near future. 

Finally, petitioner argues that the circuit court erred in finding that termination was in the 

children’s best interests. We have held that “‘[a]lthough parents have substantial rights that must 

be protected, the primary goal in cases involving abuse and neglect, as in all family law matters, 

must be the health and welfare of the children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 

S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W.Va. 44, 743 S.E .2d 352 (2013). See also 

3


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d 866, 872 (1989) (“[T]he best 

interests of the child[ren] is the polar star by which decisions must be made which affect 

children.”) (citations omitted). In this case, while petitioner maintains that the circuit court failed 

to consider the bond she had with the children, the record is clear that the children remained in 

foster care for approximately eleven months, between the initial removal and the final 

dispositional hearing, while petitioner failed to substantially correct the conditions at issue in her 

home. Even at the time of the final dispositional hearing, petitioner could provide no set time in 

which she would provide a suitable home for these children, except to state that she hoped it 

would be “real soon.” Upon our careful review of the record on appeal, we find no error in the 

circuit court’s ruling that termination was in the children’s best interests to achieve permanency. 

Therefore, the circuit court did not err in terminating petitioner’s parental rights. Given 

the facts of this case, there was no reasonable likelihood that petitioner could substantially 

correct the conditions of abuse and neglect in the near future, and termination was necessary for 

the children’s welfare and in the children’s best interests. Pursuant to West Virginia Code § 49­

6-5(a)(6), circuit courts are directed to terminate parental rights upon such findings. 

The circuit court’s August 13, 2014, order is hereby affirmed. 

Affirmed. 

ISSUED: May 18, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

4