1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re R.W.-1

No. 21-0983 (Cabell County 19-JA-252)

MEMORANDUM DECISION

Petitioner Father R.W.-2, by counsel Randall D. Wall, and Petitioner Mother D.C., by 

counsel Jason Goad, appeal the Circuit Court of Cabell County’s November 9, 2021, order

terminating their parental, guardianship, and custodial rights to R.W.-1.

1 The West Virginia 

Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and

Mindy M. Parsley, filed a response in support of the circuit court’s order. The guardian ad litem

(“guardian”), Ryan Turner, filed a response on the child’s behalf in support of the circuit court’s 

order. On appeal, petitioners argue that they were not provided a meaningful improvement 

period and that the circuit court erred in terminating their parental rights upon insufficient

evidence and without imposing a less-restrictive dispositional alternative.

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.

R.W.-1 was born in February of 2018. At the time of his birth, both parents were minors 

and involved in youth services and were placed in residential programs. Petitioner D.C. had been 

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, as the child and petitioner father share 

the same initials, we refer to them as R.W.-1 and R.W.-2, respectively, throughout this 

memorandum decision.

FILED

May 12, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

placed in Florence Crittenton2 on two separate occasions and absconded from that facility to give 

birth to R.W.-1. Following his birth, R.W.-1 was determined to be drug exposed and suffering 

from several abnormalities. The child was diagnosed with “parietal encephalocele, feeding 

difficulties, Dandy Walker Malformation, holoprosencephaly, gray matter heterotopia, and 

aqueduct stenosis with ventricular rupture,” observed to have “recurring seizures,” and required a 

shunt placed in his brain. According to the DHHR, R.W.-1 was treated at the Cincinnati

Children’s Hospital until April 22, 2018, at which point he was released to D.C. 

In May of 2018, the DHHR received a referral that R.W.-1 lost weight while in D.C.’s 

care and D.C. was not bringing the child to regularly scheduled well checks with a local 

physician in Cabell County. The DHHR investigated the referral and opened services to assist in 

R.W.-1’s medial needs. The DHHR received another referral in February of 2019, alleging that 

petitioners continued to miss medical appointments for R.W.-1 and the child was admitted to the 

hospital for increased seizures. The DHHR found that petitioners presented the child for only 

two of ten appointments from August of 2018 through March of 2019 and an undetermined 

number of specialist appointments at the Cincinnati Children’s Hospital. The DHHR provided

the parents with adult life skills and parenting classes, as well as in-home supervision and safety 

services and Birth to Three services for R.W.-1. The DHHR also required petitioners to attend 

random drug screening and required D.C. to participate in mental health services to treat her 

bipolar disorder.

In October of 2019, the DHHR received another referral alleging that petitioners did not 

participate in services and continued to miss medical appointments for the child. The DHHR

noted difficulty locating petitioners because they changed residences and would not respond to 

attempted contact from service providers or the child’s medical professionals. Finally, in 

December of 2019, the family was located, and the DHHR took emergency custody of R.W.-1. 

Upon removing the child, the DHHR discovered that the family had not refilled R.W.-1’s seizure 

medication. The DHHR filed a child abuse and neglect petition, alleging the foregoing, and 

asserted that petitioners had medically neglected R.W.-1 and failed to provide the child with 

suitable housing. The circuit court later ratified the emergency removal of the child from 

petitioners’ care.

In February of 2020, petitioners stipulated that they missed medical appointments for the 

child and had medically neglected him. The circuit court accepted their stipulation and 

adjudicated them as abusing parents. Petitioners then moved for a post-adjudicatory 

improvement period, which the circuit court granted. The parties agreed to a family case plan 

that included the following terms: maintaining a stable home; maintaining employment or stable 

income; attending medical appointments for R.W.-1; completing parenting and adult life skills 

classes; random drug screening; and completing a parental fitness evaluation and following the 

recommendations of the evaluator.

2

According to the record, Florence Crittenton is a residential program for pregnant and 

post-partum mothers.
3

The circuit court held a review hearing in May of 2020 and found that the parents were 

“making some efforts toward their case plans.” The court also found that due to the pandemic, 

the child’s medical care required a transfer from Cincinnati Children’s Hospital to Morgantown, 

West Virginia, and it approved the transfer. The circuit court also noted that petitioners’ forensic 

evaluations were pending.

Petitioners’ parental fitness evaluations were completed in December of 2020. D.C.’s 

evaluator found that D.C. exhibited symptoms of depression, anxiety, trauma, difficulty thinking, 

and problematic personality traits (such as “cold and unfeeling; harsh and punitive, and distant in 

interpersonal relationships”). Additionally, D.C. had been previously diagnosed with bipolar

disorder and attention deficit hyperactivity disorder. D.C. admitted to past suicidal ideation and 

anger problems, but she did not express a strong desire for treatment. The evaluator stated that 

D.C.’s cognitive assessment indicated she was “impaired” and in the “low to very low range” of 

cognitive ability. The evaluator concluded that D.C.’s prognosis for reliable attainment of 

minimally adequate parenting was poor. The evaluator recommended that D.C. participate in 

psychotherapy to treat her diagnosis.

R.W.-2’s evaluator opined that R.W.-2 had the cognitive ability to parent a child and 

maintain a household, but she believed he lacked insight and did not hold realistic plans for the 

future. R.W.-2 denied substance abuse issues but admitted that he intended to use heroin and 

Xanax on his birthday. The evaluator noted that R.W.-2 was arrested in April of 2020 when he 

was found in possession of heroin and Xanax. The evaluator suggested that R.W.-2 stated that 

the substances were for personal use in order to “save face in light of his pending charges,” as he 

possessed a “large amount of heroin for a new user.” The evaluator also reported that R.W.-2 

“did not take personal responsibility for his [Child Protective Services] involvement and was 

dismissive of [the DHHR’s] concerns.” Finally, the evaluator opined that R.W.-2 had a “guarded

to poor” prognosis for achieving minimally adequate parenting. 

The record provides that the circuit court held another review hearing in May of 2021. At 

the hearing, the DHHR recommended termination of petitioners’ parental rights to the child. The 

parents argued for additional time, stating that the foster parents were able to learn how to care 

for R.W.-1’s special needs and that they could also learn. Notably, R.W.-2 was on probation for 

his criminal charges and therefore was not incarcerated at the time of this hearing. The guardian 

recommended terminating the parents’ parental rights. The guardian stated that the foster parents 

created a “Day in the Life” video that depicted R.W.-1’s daily required care. The guardian 

explained that he had doubts the parents would be able to effectively care for the child due to the 

severity of his medical conditions, which required “twenty-four hours a day, seven days a week”

care. The court ordered a multidisciplinary team (“MDT”) meeting be held and that the parties be 

provided the “Day in the Life” video.

The circuit court held dispositional hearings in August and September of 2021, and

issued a final dispositional order in November of 2021, detailing the testimony provided from the 

parents and a DHHR worker. In its order, the circuit court recounted R.W.-1’s medical 

diagnoses, which, in addition to those set forth above, included that the child required a “G-tube 

placed for feeding” and “other serious medical interventions to keep him alive.” Testimony 

showed that the child had been in specialized foster care since February of 2020, with foster 

parents who had prior medical training and were retired, providing them an opportunity to care 
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for the child twenty-four hours per day. At age three, R.W.-1 was unable to walk, roll, crawl, or 

speak. The child could not be left alone and could not be taken outside due to his medical 

conditions. Evidence showed that R.W.-1 required a “sterile and clean” environment, that 

caregivers could not leave the home and then interact with R.W.-1 and that visitors “must be 

totally clean.”

During their testimony, petitioners asserted that they were not provided a chance to 

demonstrate an ability to care for R.W.-1. Due to COVID-19 precautions, the parents were not 

permitted to attend R.W.-1’s medical appointments or any in-person visitation with the child. 

D.C. testified that she received some medical training during the proceedings and was employed 

as a licensed certified nursing assistant for nine-and-one-half months. She explained that her 

license was no longer valid after she left that employment. D.C. also stated that she never failed 

to transport R.W.-1 to “important medical appointments” and had only missed “scheduled checkups” for the child. Both petitioners asserted that they would move to Ohio to be closer to 

specialized care for R.W.-1. D.C. testified that she did not watch the “Day in the Life” video that

the foster parents created, but R.W.-2 testified that he had.

The DHHR worker testified that R.W.-2 was “minimally compliant” with portions of his 

case plan, such as parenting and adult life skills classes, but was noncompliant with random drug 

screening. The worker further testified that R.W.-2 had only “sporadically participated” in video 

visitation with the child, stating “many times” that he was too sick to answer the phone. The 

worker also testified that R.W.-2 did not have independent housing. Regarding D.C., the worker 

testified that she was minimally compliant with her improvement period. She agreed that D.C. 

demonstrated improvement in the last few months; the court found “however, throughout the 

entirety of the case, her behavior ha[d] been so erratic that [Child Protective Services] was not 

able to work with her on skills to regain her child.” Additionally, D.C. completed ten drug 

screens throughout the proceedings, which were positive for marijuana, “missed many [other] 

drug screens,” and she had not submitted a drug screen sample since May of 2021. The DHHR 

worker opined that, although D.C. addressed her mental health issues close in time to the 

dispositional hearing, she needed “more stability and consistency regarding employment, 

housing, and marijuana use.” The worker also testified that petitioners had an active Child 

Protective Services case for twenty-two months prior to the filing of the instant petition, and 

neither parent was compliant with services during that time. 

The DHHR worker opined that petitioners “still do not seem to understand why this case 

was brought against them [which was the parents’] refusal to see and properly address the 

[medical] issues” of R.W.-1. She explained that the DHHR experienced significant barriers in 

educating the parents due to D.C.’s uncooperative, “erratic and out of control” attitude early in 

the proceedings and R.W.-2’s criminal charges. Even as recently as the July of 2021 MDT 

meeting, D.C. had an inappropriate outburst of emotions directed at the MDT members. The 

worker further explained that, while the DHHR does not provide medical training to parents, if 

petitioners had complied with their case plans, then “transitional home care would have been 

provided to put [R.W.-1] back in their home, which would include necessary medical 

assistance.”
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Ultimately, the court found that petitioners had been “dismissive, argumentative, and 

inconsistent” during the proceedings. The court found that petitioners failed to follow the 

recommendations of the family case plans and the parental fitness evaluations and demonstrated 

a “general lack of cooperation with the [DHHR].” The court considered that D.C. had made 

“some recent improvements in behavior,” but, relying on D.C.’s parental fitness evaluation,

found that the “concerns regarding competency to support and care for [R.W.-1] would have 

been insurmountable hinderances to reunification.” Regarding R.W.-2, the court noted that he 

had been arrested and charged with possession of a controlled substance, possession with intent 

to deliver, and carrying a concealed weapon. R.W.-2 entered into “a deferred adjudication 

agreement” for his criminal charges, but he had violated the terms by committing further 

criminal acts, which again involved controlled substances. The circuit court found that R.W.-2

was incarcerated pending sentencing for the first set of criminal acts. The court considered that 

even if R.W.-2 was not incarcerated, his “issues of anger management and competency to 

support and care for [R.W.-1] would have likewise been insurmountable hindrances to 

reunification.” Finally, the court concluded that there was no reasonable likelihood that the 

conditions of neglect and abuse could be substantially corrected in the near future and that it was 

necessary for the welfare of the child to terminate petitioners’ parental, guardianship, and 

custodial rights. The circuit court memorialized its decision by its November 9, 2021, order, 

which petitioners now appeal.3

The Court has previously held:

“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). 

On appeal, petitioners argue that they were not provided a meaningful opportunity to 

prove that they could care for their infant son. In petitioners’ view, the “conditions giving rise to 

the filing of the petition was the parents[’] age and lack of resources and things ‘beyond their

3

According to the parties, the permanency plan for the child is adoption in his current

foster placement.
6

control.’” Petitioners acknowledge that they needed an opportunity to show they could care for 

R.W.-1 but argue that the DHHR’s “cookie cutter” case plan was not tailored to the conditions of 

neglect. According to petitioners, the family case plan provided the common services of abuse 

and neglect cases, such as parenting classes, supervised visitation, and random drug screening, 

but did not address issues with transportation or instruction on how to care for medically fragile 

R.W.-1. In sum, petitioners argue that they were not provided an opportunity to care for R.W.-1.

This Court has held that “[i]n making the final disposition in a child abuse and neglect 

proceeding, the level of a parent’s compliance with the terms and conditions of an improvement 

period is just one factor to be considered. The controlling standard that governs any dispositional 

decision remains the best interests of the child.” Syl. Pt. 4, In re B.H., 233 W. Va. 57, 754 S.E.2d 

743 (2014). Further, petitioners were provided the maximum period of time allowed by statute to 

improve, which must be considered in this Court’s analysis. At the time of the dispositional 

hearing, the record provides that the child was in specialized foster care from December of 2019 

through September of 2021, which was when the final dispositional hearing was held. West 

Virginia Code § 49-4-610(9) provides that 

no combination of any improvement periods or extensions thereto may cause a 

child to be in foster care more than fifteen months of the most recent twenty-two 

months, unless the court finds compelling circumstances by clear and convincing 

evidence that it is in the child’s best interests to extend the time limits contained 

in this paragraph.

This time limit was exceeded in March of 2021, and petitioners received the benefit of five 

additional months to demonstrate improvement. Indeed, this Court has directed that

[a]lthough it is sometimes a difficult task, the trial court must accept the fact that 

the statutory limits on improvement periods (as well as our case law limiting the 

right to improvement periods) dictate that there comes a time for decision, 

because a child deserves resolution and permanency in his or her life, and because 

part of that permanency must include at minimum a right to rely on his or her 

caretakers to be there to provide the basic nurturance of life. 

State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 260, 470 S.E.2d 205, 214 (1996).

Here, it is clear from the record that petitioners were not amenable to instruction from the

DHHR due to their individual barriers. While they argue that the DHHR did not provide them an 

opportunity to care for the child, they do not acknowledge on appeal that they were only 

minimally compliant with the other conditions of their extensive improvement periods. Neither 

parent drug screened consistently throughout the proceedings, despite admitting to the use of 

controlled substances. The circuit court found that petitioners were generally uncooperative with 

the DHHR and the services that the agency offered, even before the instant petition was filed. An 

improvement period is “a period in which the [DHHR] and the court should attempt to facilitate 

the parent’s success, but wherein the parent must understand that he [or she] bears a 

responsibility to demonstrate sufficient progress and improvement to justify return to him [or 

her] of the child.” In re Renae Ebony W., 192 W. Va. 421, 427, 452 S.E.2d 737, 743 (1994)
 7 

(citation omitted) (emphasis added). While we recognize that petitioners were not able to attend 

the medical appointments for the child due to COVID-19, a circumstance that was out of their 

control, it is also clear from the record that petitioners did not otherwise demonstrate a level of 

stability and cooperation with the DHHR that could justify returning R.W.-1, who is incredibly 

medically fragile, to their care. According to the DHHR worker’s testimony, the DHHR could 

have provided necessary training to petitioners with the transition of R.W.-1 into their care. Yet, 

petitioners failed to demonstrate overall compliance with the case plan, such that reunification 

could not be considered. R.W.-2 was incarcerated during the proceedings due to his own 

criminal actions and could not care for the child as of the dispositional hearing. D.C. 

demonstrated explosive outbursts as recently as July of 2021 and admitted that she had not 

viewed the “Day in the Life” video that depicted the care R.W.-1 required. Simply put, 

petitioners’ noncompliance was such that the DHHR did not have an opportunity to provide

hands on instruction in the care of the child until late in the proceedings. While D.C. made some 

improvement in her cooperation near the end of the proceedings, the circuit court was statutorily 

required to determine permanency for the child, and the evidence showed that neither parent was 

prepared to care for R.W.-1. Accordingly, we find no error in the circuit court’s decision not to 

grant petitioners additional time to improve. 

Petitioners also argue that the circuit court erred in finding that there was no reasonable 

likelihood that the conditions of neglect or abuse could be substantially corrected in the near 

future. According to petitioners, the DHHR failed to present evidence that fits one of the six 

circumstances presented in West Virginia Code § 49-4-604(d). Petitioners assert that the 

evidence below demonstrated that there was a reasonable likelihood that the conditions of 

neglect and abuse could be substantially corrected and emphasize the DHHR worker’s testimony

“that she had no evidence that [petitioners] could not learn the skills to take care” of R.W.-1. 

Pursuant to West Virginia Code § 49-4-604(c)(6), a circuit court may terminate a parent’s 

parental, guardianship, and custodial rights upon finding 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 welfare of the child. Contrary to petitioners’ argument, there was 

significant evidence presented related to one of the circumstances, found in West Virginia Code 

§ 49-4-604(d)(3), which provides that there is no reasonable likelihood that the conditions of 

neglect and abuse can be substantially corrected when

[t]he . . . parents have 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.

As set forth above, petitioners failed to fully participate in their family case plans. The 

circuit court found that they were generally not cooperative with the DHHR, and the evidence 

shows that they only “minimally complied” with their case plan. Neither parent complied with 

random drug screenings, and both tested positive for controlled substances throughout the 

proceedings. R.W.-2’s progress was substantially blocked by his recurring criminal acts, and 
8

D.C. demonstrated emotional instability throughout the proceedings. Critically, we have held 

that

“[c]ourts are not required to exhaust every speculative possibility of 

parental improvement . . . where it appears that the welfare of the child will be 

seriously threatened, and this is particularly applicable to children under the age 

of three years who are more susceptible to illness, need consistent close 

interaction with fully committed adults, and are likely to have their emotional and

physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re 

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

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4. It is difficult to conceive of a child more 

susceptible to illness and requiring more consistent and close interaction than R.W.-1. While

over the age of three, the court heard evidence that R.W.-1 was completely dependent on his 

caregivers and his welfare could be seriously threatened by a lapse in attention from those

caregivers. After extensive proceedings, both prior to and subsequent to the filing of the child 

abuse and neglect petition, the circuit court remained concerned that petitioners did not have the 

competency to support or care for R.W.-1. Upon our review, we find no error in the circuit 

court’s determination that there was no reasonable likelihood that petitioners could correct the 

conditions of neglect and abuse in the near future. 

Finally, petitioners argue that the circuit court erred in terminating their parental rights

rather than imposing a less-restrictive dispositional alternative. However, having held that the

circuit court did not err in finding that there was no reasonable likelihood that the conditions of 

neglect and abuse could be substantially corrected in the near future, the circuit court did not 

abuse its discretion in terminating their parental rights. This Court has held that

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

statutory provision covering the disposition of neglected children, [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 [West Virginia Code § 49-4-604(d)] . . . 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). Accordingly, we find no error 

in the circuit court’s final disposition. Petitioners are entitled to no relief on appeal.

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

November 9, 2021, order is hereby affirmed.

Affirmed.

ISSUED: May 12, 2022
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CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice C. Haley Bunn