STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

November 25, 2014 

RORY L. PERRY II, CLERK 

In Re: A.L, C.K., E.K., I.K., & K.K. SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

No. 14-0675 (Hampshire County 13-JA-16, 13-JA-17, 13-JA-23 through 25) 

MEMORANDUM DECISION 

Petitioner Father, by counsel Karen L. Garrett, appeals the May 30, 2014, order of the 

Circuit Court of Hampshire County that terminated his parental rights to six-year-old A.L, tenyear-old C.K., four-year-old E.K., three-year-old I.K., and ten-month-old K.K. The children’s 

guardian ad litem, Joyce E. Stewart, filed a response in support of the circuit court’s order. The 

Department of Health and Human Resources (“DHHR”), by its counsel Lee A. Niezgoda, also 

filed a response in support of the circuit court’s order. Petitioner thereafter filed a reply to each 

respondent. On appeal, petitioner argues that the circuit court erred in (1) accepting petitioner’s 

stipulations at the adjudicatory hearing and basing his adjudication on these stipulations; (2) 

making certain findings regarding the DHHR’s efforts to achieve reunification, (3) adhering to 

rules concerning notifying petitioner of the right to appeal, (4) making erroneous findings of fact, 

(5) denying certain motions concerning improvement periods, (6) terminating petitioner’s 

parental rights, and (7) denying petitioner’s motion for post-termination visitation and denying 

sibling visitation. 

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 August of 2013, the DHHR filed an amended abuse and neglect petition against 

petitioner and his wife alleging that petitioner’s wife physically abused her stepdaughter, 

petitioner’s daughter A.L.; that petitioner failed to protect A.L. and his other children despite the 

substantiated allegations of A.L.’s abuse; and that petitioner and his wife failed to provide 

adequate housing for the children due to the home’s deplorable condition. In particular, the home 

had black mold, exposed insulation, areas of water damage that included water dripping from the 

ceiling, a damaged roof from a fallen tree, exposed wiring, and a collapsed floor in the bathroom. 

At the adjudicatory hearing in September of 2013, petitioner’s wife stipulated to inflicting bodily 

injury upon A.L. that left bruises on her arm, spine, abdomen, shin, and knee, and petitioner 

stipulated to the failure to protect A.L. Petitioner and his wife also stipulated to providing 

inadequate and dangerous housing for the children. The circuit court adjudicated the children as 

abused and neglected and granted both parents a six-month post-adjudicatory improvement 

period with directions to participate in parenting classes, obtain employment, obtain and 

maintain stable and appropriate housing, participate in domestic violence classes, learn and 

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utilize positive coping skills to reduce conflict in relationships, and learn and practice adequate 

skills for taking care of themselves and their children. 

After considering testimony from petitioner and his caseworkers at the dispositional 

hearing in May of 2014, the circuit court found that petitioner failed to improve during his 

improvement period. The circuit court also found that he had not financially supported his 

children, secured safe and stable housing, or completed counseling as directed. Based on these 

findings, the circuit court concluded that there was no reasonable likelihood that the conditions 

of abuse and neglect could be substantially corrected in the near future and that reunification 

would be contrary to the children’s best interests. On May 30, 2014, the circuit court entered its 

order terminating his parental rights.1 Petitioner now appeals. 

This 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). 

Upon our review of the record, we find no error by the circuit court in adjudicating 

petitioner as an abusing parent based on his stipulations to allegations contained in the amended 

petition. Rule 26(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect 

requires that any stipulated or uncontested adjudication includes (1) the agreed upon facts 

supporting court involvement concerning the subject parent’s problems, conduct, or condition, 

and (2) a statement of the subject parent’s problems or deficiencies to be addressed at the final 

disposition. Before the circuit court can accept a stipulated or uncontested adjudication, Rule 

26(b) requires the circuit court to first determine that the subject parent understands the content 

and consequences of his or her stipulations and is making the stipulations voluntarily. “‘An order 

to which no objection was made and which was actually approved by counsel, will not be 

reviewed on appeal.’ Syl. pt. 1, Loar v. Massey, W.Va., 261 S.E.2d 83 (1979).” Syl. Pt. 3, In re: 

S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981). 

Petitioner argues that the allegations contained in the amended petition no longer existed 

when that petition was filed. Petitioner asserts that because he and his wife moved out of the 

1 The circuit court also terminated the parental rights of the children’s mothers. 

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home with deplorable conditions about a week before the amended petition was filed, the circuit 

court erroneously accepted this stipulation. Our review of the adjudicatory hearing transcript 

reveals that the parties, including petitioner and his attorney, took a twenty-minute recess to 

consider the allegations of abuse and neglect. The record further shows that following this recess, 

petitioner stipulated to the deplorable conditions of the home and the failure to protect A.L. The 

record also shows that a family case plan was developed during the proceedings and at no time 

between the adjudicatory hearing and the appeal did petitioner object to his entered stipulations, 

the circuit court’s adjudicatory order, or the terms of his improvement period. Even if petitioner 

and his family were no longer living in the specific home described in the amended petition, 

petitioner had not acquired a safe and stable home for the children following the move or at any 

point during the proceedings. Moreover, at the dispositional hearing, petitioner reiterated that he 

stipulated to the deplorable conditions of the home and that he recognized that the DHHR 

substantiated his failure to protect A.L. from his wife. 

The circuit court also did not err in its findings concerning the DHHR and its efforts with 

petitioner and his family. In particular, petitioner argues that (1) the circuit court erroneously 

found that no reasonable efforts were required of the DHHR due to the imminent danger present 

at the beginning of the case, (2) the DHHR did not make efforts to remedy the circumstances 

alleged in the amended petition, and (3) the DHHR failed to make reasonable efforts to reunite 

the children with their parents. Petitioner asserts that the DHHR did not adhere to all deadlines 

for multidisciplinary team (“MDT”) reports and did not diligently provide services to petitioner. 

We have held as follows: 

“Where it appears from the record that the process established by the 

Rules of Procedure for Child Abuse and Neglect Proceedings . . . has been 

substantially disregarded or frustrated, the resulting order of disposition will be 

vacated and the case remanded for compliance with that process and entry of an 

appropriate dispositional order.” Syl. Pt. 5, In re Edward B., 210 W.Va. 621, 558 

S.E.2d 620 (2001). 

Syl. Pt. 6, In re Elizabeth A., 217 W.Va. 197, 617 S.E.2d 547 (2005). Our review of the record 

shows that the circuit court’s finding concerning imminent danger did not bar the DHHR from 

providing services to petitioner, as exhibited by petitioner’s treatment and family case plans. The 

record reveals that petitioner was aware of the terms expected of him, yet inconsistently 

complied with services. Accordingly, under the circumstances, the Rules of Procedure for Child 

Abuse and Neglect Proceedings were not substantially disregarded or frustrated. 

The record also shows no reversible error in the circuit court’s inquiry of petitioner and 

his wife with regard to their right to appeal. Petitioner contends that the circuit court failed to 

address their right to appeal after it adjudicated petitioner and his wife of abuse and neglect. 

West Virginia Code § 49-6-2(e) provides that the circuit court “shall [] inquir[e] of the parents or 

custodians whether or not appeal is desired and the response transcribed. A negative response 

shall not be construed as a waiver.” The record shows that the circuit court addressed the 

parents’ right to appeal following the dispositional hearing, to which petitioner’s counsel offered 

no response. Our review also reveals that petitioner’s right to appeal was not interfered with as 

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demonstrated by petitioner’s timely filings to appeal the circuit court’s termination of his 

parental rights. 

The circuit court did not commit reversible error in finding that petitioner would 

potentially be living in a home with fourteen other people. Petitioner contends that the circuit 

court miscounted the number of people who would be living in his grandparents’ home and that 

accordingly, the circuit court erroneously found that petitioner’s plan to take his children to this 

home was not feasible. Our review of the record shows that petitioner’s grandmother testified 

that she would allow petitioner, his wife, and the five children to reside in the home with her, 

petitioner’s grandfather, and three other children who already lived in the three-bedroom home. 

Regardless of the actual number of people who would be living in petitioner’s grandparents’ 

home, the record shows, more importantly, that petitioner did not acquire and maintain stable 

housing during the proceedings below. Moreover, petitioner testified at the dispositional hearing 

that he would not be able to take all five of his children with him at that time, that he was behind 

on child support, and that he was currently unemployed. For these reasons, it is clear that the 

circuit court correctly found petitioner had not obtained suitable housing. 

The Court also finds no error in the circuit court’s denial of petitioner’s motions for (1) 

an extension to his improvement period, (2) a dispositional improvement period, and (3) 

reconsideration of the order denying petitioner a dispositional improvement period. West 

Virginia Code § 49-6-12(g) directs as follows: 

A court may extend any improvement period granted . . . for a period not to 

exceed three months when the court finds that the [parent] has substantially 

complied with the terms of the improvement period; that the continuation of the 

improvement period will not substantially impair the ability of the department to 

permanently place the child; and that such extension is otherwise consistent with 

the best interest of the child. 

West Virginia Code § 49-6-12(c) directs that, if a subject parent has previously received an 

improvement period, the circuit court has the discretion at the dispositional hearing to grant 

petitioner another improvement period if the parent is able to show that he or she has 

experienced a substantial change in circumstances and that, due to the change in circumstances, 

is likely to fully participate in the improvement period. The record establishes that petitioner 

failed to meet either burden for his motion to extend his original improvement period or his 

motion for a dispositional improvement period. At the dispositional hearing, petitioner’s Home 

Base worker testified that she attended every MDT meeting and that petitioner and his wife had 

made some progress throughout the case but also had some regression. The evidence showed that 

petitioner had yet to obtain stable and safe independent housing for his family and did not 

consistently participate in services that had been provided to him for nearly a year, such as 

individualized parenting, adult life skills, psychological services, and family therapy. A copy of 

one of the more recent MDT meetings reveals that petitioner and his wife continued to 

misunderstand the “core concepts” from their parenting classes, minimize the gravity of their 

situation, and resist the need for Child Protective Services (“CPS”) involvement. Because the 

circuit court properly denied petitioner’s motion for a dispositional improvement period and no 

new evidence was presented at the hearing on petitioner’s motion for reconsideration, the Court 

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finds no error in the circuit court’s denial of petitioner’s motion to reconsider its decision 

denying his motion for a dispositional improvement period. 

Upon our review of the record and the circumstances of this case, we find no error by the 

circuit court in terminating petitioner’s parental rights. “‘Although parents have substantial rights 

that must be protected, the primary goal in cases involving abuse and neglect, as in all family law 

matters, must be the health and welfare of the children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 

479 S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013). 

“[T]he best interests of the child[ren] is the polar star by which decisions must be made which 

affect children.” Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d 866, 872 (1989) 

(citing State ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601, 604 (1972). We have also 

held as follows: 

“[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). 

Syl. Pt. 4, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). 

Under West Virginia Code § 49-6-5(b)(3), a subject parent’s failure to follow through 

with rehabilitative efforts to reduce or prevent the abuse and neglect of the children constitutes 

circumstances in which there is no reasonable likelihood that the conditions of abuse or neglect 

can be substantially corrected. The evidence supports the circuit court’s findings of fact and 

conclusions of law that petitioner made little improvement since the matter was initiated, that he 

demonstrated an inadequate capacity to resolve the problems of abuse or neglect, and, 

accordingly, there was no reasonable likelihood that the conditions of abuse and/or neglect could 

be substantially corrected in the near future and termination was in the children’s best interests. 

Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental, 

custodial, and guardianship rights upon such findings. 

We also find no error in the circuit court’s decisions concerning post-termination 

visitation or sibling visitation. We have held as follows: 

“When 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). 

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Syl. Pt. 2, In re Billy Joe M., 206 W.Va. 1, 521 S.E.2d 173 (1999). With regard to sibling 

visitation, we bear in mind the following: 

In cases where there is a termination of parental rights, the circuit court 

should consider whether continued association with siblings in other placements 

is in the child's best interests, and if such continued association is in such child’s 

best interests, the court should enter an appropriate order to preserve the rights of 

siblings to continued contact. 

Syl. Pt. 4, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991). Our review of the 

record shows that the circuit court considered the circumstances of the case and the children’s 

best interests in making its determinations concerning visitation. For instance, the circuit court 

considered the children’s bond with their pre-adoptive families; their favorable circumstances in 

these homes; and their young ages, with the youngest less than six months old at the time of the 

hearing. The circuit court also considered the guardian ad litem’s assertion that the parents were 

not consistent with visitation, i.e., there were delays and, at times, difficulty with assessing at 

each visitation whether another would occur.2 As such, the circuit court did not err in denying 

visitation with petitioner or among siblings because it was not in the children’s best interests. 

For the foregoing reasons, we affirm the circuit court’s May 30, 2014, order terminating 

petitioner’s parental rights to A.L, C.K., E.K., I.K., and K.K. 

Affirmed. 

ISSUED: November 25, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

2 We note that the May 30, 2014, transcript indicates that the circuit court permitted the 

parents’ visitation schedule to continue pending appeal. 

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