STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

February 16, 2016 

RORY L. PERRY II, CLERK In re: G.B.-1, G.B.-2, and G.B.-3 SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

No. 15-0829 (Roane County 15-JA-14, 15-JA-15, & 15-JA-16) 

MEMORANDUM DECISION 

Petitioner Mother A.E., by counsel Ryan M. Ruth, appeals the Circuit Court of Roane 

County’s July 28, 2015, order terminating her parental rights to one-year-old G.B.-1, three-yearold G.B.-2, and five-year-old G.B.-3.1 The West Virginia Department of Health and Human 

Resources (“DHHR”), by counsel Lee Niezgoda, filed its response in support of the circuit 

court’s order. The guardian ad litem (“guardian”), Anita Harold Ashley, filed a response on 

behalf of the children also in support of the circuit court’s order. On appeal, petitioner argues that 

the circuit court erred in terminating her parental rights instead of granting her an improvement 

period.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 March of 2015, the DHHR filed an abuse and neglect petition against petitioner 

alleging that she failed to provide the children with the necessary food, clothing, shelter, 

supervision, medical care, or education. The DHHR also alleged that petitioner admitted that she 

was “basically homeless,” used illegal drugs, and abandoned the children. Thereafter, the circuit 

court ordered petitioner to submit to drug screens. 

In April of 2015, the circuit court held an adjudicatory hearing. Petitioner stipulated that 

her substance abuse impaired her ability to properly care for her children. Accordingly, the 

circuit court found that the children were abused and neglected. Subsequently, the guardian filed 

1

Because all of the children in this case have the same initials, we have distinguished 

each of them using numbers 1, 2, and 3 after their initials in this Memorandum Decision. The 

circuit court case numbers also serve to distinguish each child. 

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We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and 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 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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her report that indicated that petitioner had “taken some drug tests, all of which have been 

positive for substances, and missed multiple screens.” 

In July of 2015, the circuit court held a dispositional hearing. The DHHR presented 

evidence of petitioner’s drug abuse history and failed drug screens. A Child Protective Services 

(“CPS”) worker testified that petitioner tested positive six times and failed to submit to six drug 

screens. Further, the CPS worker testified that petitioner was arrested and incarcerated for 

“disrupting a governmental process” following a hearing in the underlying proceedings and 

failed to undergo a psychological evaluation. Petitioner testified that she did not abuse and 

neglect her children. She admitted that she was addicted to prescription drugs and would not pass 

a drug screen at that time. At the conclusion of the hearing, the circuit court found that there was 

no reasonable likelihood that the conditions of abuse or neglect could be substantially corrected 

in the near future and the children’s welfare required termination. By order entered on July 28, 

2015, the circuit court terminated petitioner’s parental rights to the children. 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). Further, our case law is clear that 

“in the context of abuse and neglect proceedings, the circuit court is the entity charged with 

weighing the credibility of witnesses and rendering findings of fact.” In re Emily, 208 W.Va. 

325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478, 

525 S.E.2d 669 (1999)); see also Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 

531, 538 (1997) (stating that “[a] reviewing court cannot assess witness credibility through a 

record. The trier of fact is uniquely situated to make such determinations and this Court is not in 

a position to, and will not, second guess such determinations.”). 

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On appeal, petitioner assigns error to the circuit court’s termination of her parental rights 

instead of granting her a post-adjudicatory improvement period.3 We have explained that West 

Virginia Code § 49-4-610(2) provides circuit courts with discretion in determining whether to 

grant or deny a post-adjudicatory improvement period to petitioner in these proceedings. See 

Gebr. Eickhoff Maschinenfabrik Und Eisengieberei mbH v. Starcher, 174 W.Va. 618, 626 n. 12, 

328 S.E.2d 492, 500 n. 12 (1985) (“An elementary principle of statutory construction is that the 

word ‘may’ is inherently permissive in nature and connotes discretion.” (citations omitted)); see 

also In re Tonjia M, 212 W.Va. 443, 448, 573 S.E.2d 354, 359 (2002) (stating that “[w]e have 

held that the granting of an improvement period is within the circuit court’s discretion.”). 

Accordingly, a circuit court may grant an improvement period to a respondent parent who 

demonstrates by clear and convincing evidence that she is likely to fully participate in the same. 

In the instant case, we find no error in the circuit court’s denial of petitioner’s motion for 

an improvement period. It is clear from the record on appeal that petitioner has an extensive 

history of substance abuse. In this case sub judice, the circuit court was presented with evidence 

that petitioner tested positive for drugs throughout this proceeding and failed to undergo a 

psychological examination. Notably, petitioner was arrested and incarcerated for “disrupting a 

governmental process” following a hearing in the underlying proceeding. As noted above, 

petitioner admitted that she was addicted to “prescriptions” and could not currently pass a drug 

screen. Based on the record before us, we find that petitioner failed to satisfy her burden to 

demonstrate by clear and convincing evidence that she was likely to fully participate in an 

improvement period. As such, we find no abuse of discretion in the circuit court’s denial of an 

improvement period herein. 

Further, we have often explained 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). Pursuant to West Virginia Code § 49­

4-604(b)(6), circuit courts are directed to terminate parental rights upon such findings. Here, the 

circuit court found that there was no reasonable likelihood that the conditions of neglect or abuse 

could be substantially corrected in the near future and that the children’s welfare required 

termination. Therefore, we find no merit to petitioner’s assignment of error on appeal. 

For the foregoing reasons, we find no error in the circuit court’s July 28, 2015, order, and 

we hereby affirm the same. 

Affirmed. 

ISSUED: February 16, 2016 

3

Because the dispositional hearing in this matter took place on July 6, 2015, after the new 

version of West Virginia Code §§ 49-1-101 through 49-7-304 went into effect, the Court will 

apply the revised versions of those statutes on appeal. 

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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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