1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re E.W.

No. 20-0229 (Mercer County 18-JA-30-DS)

MEMORANDUM DECISION

Petitioner Mother B.W., by counsel Gerald R. Linkous, appeals the Circuit Court of 

Mercer County’s January 27, 2020, order terminating her parental rights to E.W.1 The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a 

response in support of the circuit court’s order and a supplemental appendix. The guardian ad 

litem, Wyclif S. Farquharson, filed a response on behalf of the child in support of the circuit 

court’s order and a supplemental appendix. On appeal, petitioner argues that the circuit court 

erred in terminating her parental rights and in denying her post-termination visitation with the 

child.

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 February of 2018, the DHHR filed an abuse and neglect petition alleging that when 

petitioner gave birth to E.W., the hospital staff observed that she was unable to perform basic 

caregiving tasks for the child such as feeding and holding him. Further, petitioner refused to take 

prescribed medications including her medication for paranoid schizophrenia. The hospital staff 

also reported that petitioner hit herself, repeatedly stated delusional ideations during her stay at 

the hospital, and could not be left unattended with the child. Thereafter, petitioner waived her 

preliminary hearing.

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).

FILED

September 3, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

The circuit court convened for an adjudicatory hearing in May of 2018, and petitioner 

stipulated that her mental health issues prevented her from properly parenting the child. The 

circuit court accepted petitioner’s stipulation and adjudicated her as an abusing parent. The 

circuit court granted petitioner a post-adjudicatory improvement period and ordered her to 

undergo a psychological evaluation. By August of 2018, petitioner completed a psychological 

assessment, which found that she was not compliant with psychopharmacological interventions 

to treat her underlying mental health diagnosis of schizoaffective bipolar disorder and that she 

denied having such a diagnosis. In the opinion of the evaluator, petitioner’s failure to 

acknowledge and treat her mental illness prevented her reunification with the child. By June of 

2019, petitioner’s post-adjudicatory improvement period had expired but she had been largely 

compliant with services. At a status hearing the same month, the circuit court granted petitioner 

another improvement period. 

In October of 2019, the DHHR filed a motion to terminate petitioner’s parental rights. At 

the final dispositional hearing in December of 2019, the DHHR presented testimony from a 

Child Protective Services (“CPS”) worker who testified that petitioner’s case plan required her to 

find employment and independent housing as well as attend parenting and adult life skills classes

and individualized therapy sessions. However, the CPS worker stated that petitioner had not 

regularly taken her prescribed medications, had not regularly attended therapy, and failed to 

attain employment, income, or independent housing. Next, the DHHR provider testified that 

petitioner missed parenting and adult life skills classes at least once a month and had not gained 

the ability to adequately parent the child without constant supervision. The provider further 

testified that during the many months of services, petitioner often became overwhelmed during 

supervised visitations and would request that the visits end early. Petitioner complained that she 

was not able to take care of the child and would often cry and become very emotional. The 

provider stated that petitioner forgot what she had been previously taught and would defer care 

to her relative or boyfriend during many of the supervised visits. Another DHHR provider 

testified and confirmed that petitioner had not consistently taken her medications, did not learn 

the skill sets needed to take care of the child, and could not independently care for the child. She 

also stated that the DHHR had exhausted all means to help petitioner gain the ability to 

independently parent the child. Having heard the evidence presented, the circuit court concluded 

that there was no alternative to the termination of petitioner’s parental rights. Petitioner moved 

for post-termination visitation during the hearing and the circuit court denied the same. By its 

January 27, 2020, order, the circuit court terminated petitioner’s parental rights. Petitioner now 

appeals that order.

2

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 

2The father’s parental rights were also terminated below. According to the parties, the 

permanency plan for the child is adoption in his current foster placement.
3

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 parental rights 

by failing to make the requisite findings set forth in West Virginia Code § 49-4-604(c)(6). 

Petitioner correctly notes that

“[w]here a trial court order terminating parental rights merely declares that 

there is no reasonable likelihood that a parent can eliminate the conditions of 

neglect, without explicitly stating factual findings in the order or on the record 

supporting such conclusion, and fails to state statutory findings required by [West 

Virginia Code § 49-4-604] on the record or in the order, the order is inadequate.” 

Syl. Pt. 4, in part, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001).

Syl. Pt. 9, In re Lilith H., 231 W. Va. 170, 744 S.E.2d 280 (2013). Petitioner argues that the 

circuit court failed to make adequate findings, as required by Lilith H., in both its written 

termination order and on the record at the dispositional hearing. We disagree.

While the circuit court’s order contains limited findings supporting its ruling, our holding 

cited in Lilith H. above provides that relevant findings must be made “in the order or on the 

record.” Id. (emphasis added). At the dispositional hearing, the circuit court made findings

regarding petitioner’s mental health issues and the fact that the instant abuse and neglect 

proceeding had, at that time, been pending for nearly two years. Despite petitioner receiving

numerous services, the circuit court concluded that “[petitioner] can’t raise a child . . . [a]nd we 

can’t put somebody with her to help her raise the child.” The circuit court further concluded, “I 

just don’t think [petitioner] has the capacity to now or in the future to care for the child” and that 

“all the effort in the world is not going to [go] where we need to go.” These findings were based 

upon extensive evidence from multiple witnesses who testified that petitioner lacked the capacity 

to care for the child. While succinct, the circuit court’s finding in regard to petitioner’s inability 

to correct the conditions of abuse and neglect was sufficient, especially in light of the evidence 

concerning petitioner’s total inability to provide the child with even the most basic care, such as 

feeding or holding the child. Upon our review, we find that the circuit court’s express and wellsupported findings equate to and represent a finding that there was no reasonable likelihood that 

petitioner could correct the conditions of neglect in the near future. Accordingly, we find no 

merit to petitioner’s first argument on appeal.
4

Petitioner next argues that the circuit court erred in terminating her parental rights 

without employing a less-restrictive dispositional alternative such as terminating only her 

custodial rights.3 We find petitioner’s argument without merit. 

West Virginia Code § 49-4-604(c)(6) provides that a circuit court may terminate a 

parent’s parental rights upon findings 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. A court may find that there is “no reasonable likelihood 

that the conditions of neglect or abuse can be substantially corrected” when

[t]he abusing parent . . . ha[s] 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.

Id. § 49-4-604(d)(3). As previously discussed, petitioner failed to respond to a reasonable family 

case plan designed to remedy the conditions of abuse and neglect. Although she participated in 

many of the services provided, petitioner could not provide the child with adequate care and 

supervision. A year and a half after petitioner received services such as adult life skills and 

parenting classes, she still could not change, feed, supervise, or care for the child without help 

from a DHHR provider or a relative. Although the circuit court did not make detailed findings in 

3Petitioner relies on our holding in In re Micah Alyn R., 202 W. Va. 400, 504 S.E.2d 635 

(1998), where this Court declined to terminate the parental rights of a mother who was terminally 

ill and suffering from AIDS. However, the discussions in Micah Alyn R. do not apply to the facts 

of this case as petitioner does not suffer from a terminal illness. Rather, petitioner suffers from a 

mental deficiency and cannot take care of the child without constant supervision. We have noted 

that 

“[w]here allegations of neglect are made against parents based on 

intellectual incapacity of such parent(s) and their consequent inability to 

adequately care for their children, termination of rights should occur only after the 

social services system makes a thorough effort to determine whether the parent(s) 

can adequately care for the children with intensive long-term assistance. In such 

case, however, the determination of whether the parents can function with such 

assistance should be made as soon as possible in order to maximize the 

child(ren)’s chances for a permanent placement.” Syllabus point 4, In re Billy Joe 

M., 206 W.Va. 1, 521 S.E.2d 173 (1999).

Syl. Pt. 4, In re Maranda T., 223 W. Va. 512, 678 S.E.2d 18 (2009). Here, the record is clear that 

the DHHR exhausted all available services with petitioner over nearly a two-year span and 

complied with our holding in Maranda T. Further, this Court has held that “round the clock” 

services are not required by this holding. Id. at 519, 678 S.E.2d at 25. As set forth above, 

testimony established that nothing short of constant supervision would allow petitioner to 

provide adequately for the child. 
5

its final order, the record supports the termination of petitioner’s parental rights as necessary for 

the child’s welfare because petitioner had not remedied the conditions of abuse and neglect. 

“Ensuring finality for [the child] is vital to safeguarding [his] best interests so that [he] may have 

permanency and not be continually shuttled from placement to placement.” In re Cesar L., 221 

W. Va. 249, 258, 654 S.E.2d 373, 382 (2007). E.W. requires permanency in his life, but he could 

not live safely with petitioner. 

With respect to petitioner’s assertion that a less-restrictive dispositional alternative such 

as the termination of her custodial rights should have been utilized, we have 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 order terminating petitioner’s parental rights. 

Finally, petitioner argues that the circuit court erred by not granting her request for posttermination visitation and cites the fact that the circuit court was considering permanent 

placement of the child with petitioner’s grandmother at the time of disposition. We have held

“[w]hen parental rights are terminated due to neglect or abuse, the circuit 

court may nevertheless in appropriate cases consider whether continued visitation 

or other contact with the abusing parent is in the best interest of the child. Among 

other things, the circuit court should consider whether a close emotional bond has 

been established between parent and child and the child’s wishes, if he or she is of 

appropriate maturity to make such request. The evidence must indicate that such 

visitation or continued contact would not be detrimental to the child’s well being

and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va. 

446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002). Although petitioner claims 

on appeal that her grandmother will be able to exercise visitation with the child, she fails to 

explain how this arrangement affects the circuit court’s findings regarding her own posttermination visitation. She further fails to argue that she had a bond with the child or that posttermination visitation would be in his best interest. The circuit court found that post-termination 

visitation was inconsistent with the child’s permanency plan of adoption and concluded that 

visitation with petitioner would not be in the child’s best interests. Considering petitioner

provides no evidence to challenge these findings, we find no error in the circuit court’s denial of 

post-termination visitation.
6

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

January 27, 2020, order is hereby affirmed.

Affirmed.

ISSUED: September 3, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison