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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re L.V.

No. 19-0245 (Webster County 2018-JA-52)

MEMORANDUM DECISION

Petitioner Mother V.P., by counsel Andrew Chattin, appeals the Circuit Court of Webster

County’s February 8, 2019, order terminating her parental rights to L.V.

1 The West Virginia 

Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a 

response in support of the circuit court’s order. The guardian ad litem, Mary Elizabeth Snead, filed 

a response on behalf of the child in support of the circuit court’s order. On appeal, petitioner argues 

that the circuit court erred in terminating her parental rights without first granting her an 

improvement period.

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 October of 2018, the DHHR filed an abuse and neglect petition that alleged petitioner’s 

parental rights to three older children were previously involuntarily terminated.2 According to the 

petition, the prior terminations were based upon petitioner’s substance abuse. Further, the DHHR 

alleged that, in regard to the current petition, petitioner told a DHHR employee that “[s]he would 

not drug screen unless and until her child was returned to her.” However, shortly before the 

petition’s filing, petitioner tested positive for methamphetamine and amphetamine at the Webster 

County Probation Office. The petition additionally alleged that petitioner lacked suitable housing 

 

1Consistent 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). 

2The DHHR filed an amended petition that same month. It is unclear from the record what 

additional information the DHHR included in the subsequent petition. 

FILED

September 13, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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and was unemployed. In November of 2018, the circuit court held an adjudicatory hearing. 

Petitioner stipulated to the allegations in the petition and was adjudicated as an abusing parent. 

Thereafter, petitioner moved for an improvement period. 

In January of 2019, the circuit court held a dispositional hearing. During the hearing, 

petitioner testified that, in the nearly four years since the prior involuntary termination of her 

parental rights to her older children, she did not undergo any substance abuse treatment or other 

rehabilitation. However, petitioner further testified that she secured placement in a rehabilitation 

facility and that she “could go today,” but admitted that she had no paperwork to corroborate this 

assertion. Petitioner also provided a negative drug screen on the day of the dispositional hearing 

and claimed to have stopped abusing drugs approximately one month prior thereto. The circuit 

court then heard testimony from a DHHR employee, who indicated that petitioner “refused all 

services and refused drug screens right from the beginning.” He further testified that the only 

instances in which petitioner did submit for drug screens were “after court where she was ordered 

not to leave the building until testing.” According to the witness, both of those screens were 

positive for methamphetamine. The DHHR employee also testified that petitioner moved out of 

her residence during the proceedings and, when contacted, refused to provide the DHHR with her 

location or new address. Because petitioner was “completely uncooperative,” the witness indicated 

that the DHHR recommended termination of her parental rights. 

Based on the evidence presented, the circuit court found that petitioner failed to establish 

that she was likely to fully participate in an improvement period and denied her motion. 

Additionally, the circuit court found that, following her prior abuse and neglect case, petitioner 

“has had no drug treatment and on two prior occasions tested positive for drugs in this case and 

has repeatedly not reported for drug testing.” The circuit court further found that petitioner failed 

to visit the child during the pendency of the case despite the opportunity to do so. Therefore, the 

circuit court found that there was no reasonable likelihood petitioner could substantially correct 

the conditions of abuse or neglect in the near future. Finally, because “[h]er drug addiction 

adversely [a]ffects her ability to properly parent,” the circuit court found that termination of 

petitioner’s parental rights was necessary for the child’s welfare. Accordingly, the circuit court 

terminated petitioner’s parental rights to the child.

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It is from the dispositional order that petitioner 

appeals. 

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, 

 

3According to respondents, the permanency plan is for the child to remain in the 

nonabusing father’s custody. 
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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, we find no error in the 

proceedings below. 

First, petitioner argues that she was entitled to an improvement period prior to the 

termination of her parental rights because she testified that she would comply with the applicable 

terms and conditions. Petitioner further relies on her assertion that she enrolled in a substance 

abuse rehabilitation facility to argue that she took steps to remedy the conditions of abuse and 

neglect, which supports the granting of an improvement period. We do not agree. 

The decision to grant or deny an improvement period rests in the sound discretion of the 

circuit court. See In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia 

law allows the circuit court discretion in deciding whether to grant a parent an improvement 

period.”); syl. pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“It is within the 

court’s discretion to grant an improvement period within the applicable statutory requirements . . 

. .”). We have also held that a parent’s “entitlement to an improvement period is conditioned upon 

the ability of the parent/respondent to demonstrate ‘by clear and convincing evidence, that the 

respondent is likely to fully participate in the improvement period.’” In re: Charity H., 215 W. Va. 

208, 215, 599 S.E.2d 631, 638 (2004). 

While petitioner asserts that she was accepted into a rehabilitation program, the record 

shows that petitioner provided no corroborating evidence to support this assertion. Moreover, 

petitioner ignores the fact that she took no steps to correct the conditions of abuse and neglect that 

spanned two separate proceedings in the nearly four years between the prior termination and the 

dispositional hearing in the current matter. Instead, petitioner waited until the dispositional hearing 

to assure the circuit court that she would undergo treatment to correct the chronic conditions of 

abuse and neglect at issue. Contrary to petitioner’s argument that she was willing to comply with 

services, the DHHR presented testimony that petitioner refused compliance from the outset of the 

proceedings and refused to participate throughout the pendency of the matter. In fact, petitioner’s 

lack of compliance was so complete that she refused to even provide the DHHR with her physical 

address. As such, we find no error in the circuit court’s finding that petitioner was unlikely to 

comply with the terms and conditions of an improvement period or in denying her request for the 

same. 

Finally, we find no error in the termination of petitioner’s parental rights given that the 

DHHR presented evidence that established petitioner was entirely noncompliant with the services 

provided and continued to abuse controlled substances through the proceedings. Pursuant to West 

Virginia Code § 49-4-604(c)(3), a situation in which there is no reasonable likelihood the 

conditions of abuse and neglect can be substantially corrected includes one in which “[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, petitioner failed to comply 
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with the circuit court’s orders during the proceedings and, as a result, did not visit the child during 

the proceedings. Accordingly, it is clear that the circuit court did not err in finding that there was 

no reasonable likelihood petitioner could substantially correct the conditions in the near future. 

Further, the circuit court’s finding that the child’s welfare required termination of petitioner’s 

parental rights was similarly based on substantial evidence. According to West Virginia Code § 

49-4-604(b)(6), circuit courts may terminate parental rights upon these findings. Additionally, 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(c)] 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). As such, termination of 

petitioner’s parental rights was not in error. 

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

February 8, 2019, order is hereby affirmed.

Affirmed.

ISSUED: September 13, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison