STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED In re: C.L. 

May 22, 2017 

No. 16-0801 (Mercer County 15-JA-061-WS) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother C.L.-1, by counsel Michael P. Cooke, appeals the Circuit Court of 

Mercer County’s July 12, 2016, order terminating her parental, custodial, and guardianship rights 

to then two-year old C.L.-2.1 The West Virginia Department of Health and Human Resources 

(“DHHR”), by counsel S. L. Evans, filed its response in support of the circuit court’s order. The 

guardian ad litem, Joseph T. Harvey, filed a response on behalf of the child also in support of the 

circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating her 

post-adjudicatory improvement period and, ultimately, terminating her parental, custodial, and 

guardianship rights to the child.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 June of 2015, the DHHR filed two abuse and neglect petitions (an initial petition and 

an amended petition later that month) alleging that petitioner abused and/or neglected the child. 

In those petitions, the DHHR claimed that Child Protective Services (“CPS”) began an 

investigation into petitioner in 2014 due to her reported drug use and other problems allegedly 

affecting her parenting. According to the DHHR, petitioner left the child in the custody of a 

registered sex offender on at least one occasion, and a CPS worker visited petitioner’s home and 

deemed it unsafe for the child. The CPS worker reported that petitioner’s home had exposed 

electrical cords; holes in the walls; unsanitary conditions, including old food that was not 

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). Further, because petitioner and the child share the same 

initials, we use numbers (C.L.-1 and C.L.-2) to distinguish them in this memorandum decision. 

2

While petitioner argues that the circuit court terminated her “parental rights,” the circuit 

court’s July 12, 2016, order expressly terminated her “parental, custodial, and guardianship” 

rights. 

1


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

properly stored or disposed of; and child access to stairs and a balcony porch with an open gate. 

The DHHR also noted its concern that the holes in the wall may have been the result of the 

child’s father’s “explosive anger.” 

In August of 2015, the circuit court held an adjudicatory hearing. Petitioner did not 

contest the allegations that she neglected the child. Thereafter, petitioner’s motion for a postadjudicatory improvement period was granted. One of the issues to be addressed in her 

improvement period was substance abuse. 

In November of 2015, the DHHR filed a court summary in which it claimed that 

petitioner had not entered substance abuse treatment, despite the opportunity to do so, and that 

her visits with the child were “sporadic.” At a status hearing held later that month, the circuit 

court ordered that petitioner’s improvement period would continue. The circuit court urged 

petitioner to “step up and show more progress.” 

In February of 2016, the circuit court held a review hearing. The DHHR and guardian 

agreed that the matter should be scheduled for disposition based on petitioner’s lack of progress. 

The circuit court scheduled the matter for disposition. Thereafter, a motion to terminate 

petitioner’s parental rights to the child was filed. 

In April of 2016, the circuit court held a dispositional hearing. At that hearing, the DHHR 

argued that petitioner failed to cooperate in the application process for drug treatment and 

refused to enter a drug crisis or detoxification unit. The DHHR again stated that petitioner’s 

visits with the child were “sporadic.” The circuit court held the motion to terminate petitioner’s 

rights to the child in abeyance and ordered petitioner to enter drug treatment. Disposition was 

continued. Prior to the final dispositional hearing, petitioner was reportedly incarcerated. The 

details of her incarceration are unclear from the record on appeal.3 

In July of 2016, the circuit court held a final dispositional hearing. At that hearing, the 

DHHR moved to terminate petitioner’s parental rights due to her non-compliance with drug 

treatment and her sporadic visits with the child. The DHHR argued that petitioner was unwilling 

or unable to participate in a reasonable case plan because she had not cooperated in drug 

treatment, despite the DHHR’s efforts. At the conclusion of the hearing, the circuit court found 

that petitioner made no reasonable efforts to comply with drug treatment or to consistently visit 

the child. As such, the circuit court concluded that there was no reasonable likelihood that the 

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

in the child’s best interests. For those reasons, the circuit court terminated petitioner’s parental, 

custodial, and guardianship rights to the child.4 This appeal followed. 

3

Petitioner claims her incarceration was due to a bench warrant for failure to appear in a 

prior court case and for charges of driving under the influence and driving on a suspended 

license. 

4

The parental rights of both parents to the child were terminated below. The DHHR and 

the guardian ad litem state that the child is currently placed with her maternal grandmother with 

the goal of adoption into that home. 

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). 

On appeal, petitioner argues that the circuit court erred in terminating her postadjudicatory improvement period and, ultimately, terminating her parental, custodial, and 

guardianship rights to the child. With regard to the termination of improvement periods, West 

Virginia Code § 49-4-610 provides that a circuit court may grant, extend, or terminate an 

improvement period. West Virginia Code § 49-4-610(7) requires the termination of an 

improvement period “when the court finds that [a parent] has failed to fully participate in the 

terms of the improvement period.” Additionally, we have long held that “[i]t is within the court’s 

discretion . . . to terminate the improvement period . . . if the court is not satisfied that the 

[parent] is making the necessary progress.” Syl. Pt. 2, In re Lacey P., 189 W.Va. 580, 433 S.E.2d 

518 (1993). 

In this case, contrary to her claims on appeal, petitioner clearly failed to fully participate 

in her post-adjudicatory improvement period. The record on appeal reveals that petitioner was 

required to enter drug treatment, but failed to do so. Further, she failed to substantially cooperate 

with the DHHR’s efforts to facilitate drug treatment. The DHHR also noted at the dispositional 

hearing that petitioner only visited her child sporadically. As such, we find no error in the circuit 

court’s decision to terminate petitioner’s improvement period based on unsatisfactory progress. 

With regard to the termination of a parent’s parental, custodial, and guardianship rights, 

West Virginia Code § 49-4-604(a)(6) provides that circuit courts are directed to terminate such 

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 

children’s welfare. West Virginia Code § 49-4-604(c)(3) provides that “no reasonable likelihood 

that conditions of abuse or neglect can be substantially corrected” exists when “[t]he abusing 

parent . . . ha[s] not responded to or followed through with a reasonable family case plan or other 

rehabilitative efforts[.]” As discussed above, petitioner failed to follow through with drug 

treatment as directed, and she failed to cooperate with the DHHR’s efforts to provide her with 

that treatment. Petitioner also failed to substantially comply with her visitation schedule with the 

3


 

 

 

 

 

 

 

 

 

child. Based on these facts, we find no error in the circuit court’s order terminating petitioner’s 

parental, custodial, and guardianship rights to the child. 

For the foregoing reasons, we hereby affirm the circuit court’s July 12, 2016, order. 

Affirmed. 

ISSUED: May 22, 2017 

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 

4