STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In Re: K.W. 

June 16, 2014 

RORY L. PERRY II, CLERK No. 13-1319 (Mercer County 13-JA-24) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother, by counsel John Byrd, appeals the Circuit Court of Mercer County’s 

December 4, 2013, order terminating her parental, custodial, and guardianship rights to one-yearold K.W. The West Virginia Department of Health and Human Resources (“DHHR”), by 

counsel William Jones, filed its response in support of the circuit court’s order. The guardian ad 

litem (“GAL”), Catherine Wallace, filed a response on behalf of the child that also supported the 

circuit court’s order. On appeal, Petitioner Mother alleges that the circuit court did not have 

jurisdiction to proceed on the abuse and neglect petition filed against her. 

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 decision is appropriate under Rule 

21 of the Rules of Appellate Procedure. 

In 2008, Petitioner Mother’s parental rights to three of her children were involuntarily 

terminated for failing to follow through with a detoxification program and other rehabilitative 

services. The following year, Petitioner Mother voluntarily relinquished her parental rights to a 

fourth child. In March of 2013, Petitioner Mother gave birth to K.W. in North Carolina. Pursuant 

to West Virginia Code § 49-6-5b,1 the DHHR filed a petition for abuse and neglect based upon 

the prior involuntary termination of Petitioner Mother’s parental rights. 

During the preliminary hearing, the circuit court heard testimony that Petitioner Mother 

fled to North Carolina to avoid Child Protective Services (“CPS”) intervention; that Petitioner 

Mother maintained a physical address in Mercer County, West Virginia, and received services 

there; and finally that Petitioner Mother and K.W.’s father were under the supervision of a 

Mercer County parole officer. In October of 2013, the circuit court held a dispositional hearing 

and found that Petitioner Mother did not respond to or follow through with a reasonable family 

case plan or other rehabilitative efforts. As such, the circuit court terminated Petitioner Mother’s 

parental, custodial, and guardianship rights. It is from this order that Petitioner Mother now 

appeals. 

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West Virginia Code § 49-6-5b states that “the [DHHR] shall file or join in a petition or 

otherwise seek a ruling in any pending proceeding to terminate parental rights or the parental 

rights of the parent to a sibling have been terminated involuntarily.” 

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The Court has previously established the following standard of review in such 

cases: 

“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 our review, the Court finds no error in the circuit court’s termination of Petitioner 

Mother’s parental, custodial, and guardianship rights. As her sole assignment of error, Petitioner 

Mother argues that the circuit court did not have jurisdiction to proceed in this abuse and neglect 

case. Specifically, Petitioner Mother argues that the circuit court did not have “temporary 

emergency jurisdiction” of this case pursuant to West Virginia Code § 48-20-2012 and the 

jurisdictional tests set forth in In Re: K.R., 229 W.Va. 733, 741, 753 S.E.2d 882, 890 (2012),3 

because she lived in North Carolina and K.W. was born in North Carolina. 

While Petitioner Mother alleges that she was living in North Carolina, this alone does not 

support an intention to change her residency to the State of North Carolina. In this case, 

Petitioner Mother was a named party to the abuse and neglect petition and a resident of Mercer 

County. The petition listed Petitioner Mother’s physical address as being within Mercer County, 

and further stated that she had been receiving Medicaid and Supplemental Nutrition Assistance 

Program benefits in Mercer County. The circuit court also heard testimony that Petitioner Mother 

went to North Carolina in an attempt to avoid CPS intervention. Based upon these facts, we 

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West Virginia Code § 48-20-201 states that 

a court of this state has jurisdiction to make an initial child custody 

determination only if: (1) This state is the home state of the child on the 

date of the commencement of the proceeding, or was the home state of the 

child within six months before the commencement of the proceeding, and 

the child is absent from this state but a parent or person acting as a parent 

continues to live in this state. 

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“These four bases have been aptly summarized as 1) ‘home state’ jurisdiction; 2) 

‘significant connection’ jurisdiction; 3) ‘jurisdiction because of declination of jurisdiction’; and 

4) ‘default’ jurisdiction.” 

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cannot say that the circuit court erred in finding that it had jurisdiction over Petitioner Mother 

given the substantial evidence that she resided in Mercer County, West Virginia. 

As to the termination of Petitioner Mother’s parental, custodial, and guardianship rights, 

we find no error in the circuit court’s termination. We have previously held that “courts are not 

required to exhaust every speculative possibility of parental improvement before terminating 

parental rights where it appears that the welfare of the child will be seriously threatened . . . .” 

Syl. Pt. 4, in part, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011) (quoting Syl. Pt. 1, In re 

R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980)). 

During the dispositional hearing, the circuit court heard testimony that Petitioner Mother 

refused to enter into a family case plan, failed to communicate with the DHHR to arrange 

visitation, and failed to attend a multidisciplinary team meeting. Pursuant to West Virginia Code 

§ 49-6-5(b)(3), a situation in which there is no reasonable likelihood that the parent can 

substantially correct the conditions of abuse and neglect includes one where “[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 set forth above, this evidence shows 

that Petitioner Mother failed to follow through with a reasonable case plan to correct the 

conditions of abuse and neglect. Further, the circuit court found that termination of Petitioner 

Mother’s parental, custodial, and guardianship rights was necessary for the child’s welfare. 

Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental, 

custodial, and guardianship rights upon these findings. 

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

December 4, 2013, order is hereby affirmed. 

Affirmed. 

ISSUED: June 16, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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