STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In Re: L.H. April 13, 2015 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS No. 14-1187 (Hampshire County 14-JA-12) OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother, by counsel Lary Garrett, appeals the Circuit Court of Hampshire 

County’s October 22, 2014, order terminating her parental rights to ten-month-old L.H. The 

West Virginia Department of Health and Human Resources (“DHHR”), by counsel Michael 

Jackson, filed its response in support of the circuit court’s order. The guardian ad litem 

(“guardian”), Joyce Stewart, filed a response on behalf of L.H., which also supports the circuit 

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

improvement period and terminating her parental rights. 

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 2011, the DHHR filed an abuse and neglect petition against petitioner alleging, in part, 

that she was addicted to illegal drugs. Thereafter, the circuit court terminated petitioner’s 

parental rights to three older children because she failed to correct her drug addiction and 

continued to use drugs during the underlying proceedings. In July of 2014, The DHHR filed 

another abuse and neglect petition against petitioner after she gave birth to L.H., who tested 

positive for methadone and oxycodone. Petitioner also tested positive for methadone, oxycodone, 

and marijuana. The petition was also based on the prior involuntarily termination of petitioner’s 

parental rights to three older children for failing to correct her drug use. 

In August of 2014, the circuit court held an adjudicatory hearing. The circuit court heard 

evidence of petitioner’s prior involuntary termination to her three older children for failing to 

correct her drug abuse. The circuit court also heard testimony that L.H. tested positive for 

methadone and oxycodone at the time of her birth. Additionally, the circuit court heard testimony 

that petitioner knowingly took these medications while she was pregnant. Finally, petitioner 

admitted to using marijuana during her pregnancy. Accordingly, the circuit court adjudicated 

petitioner as an “abusive and neglectful” parent. However, the circuit court granted petitioner 

supervised visitation upon proof of a negative drug screen. 

In October of 2014, the DHHR filed a status report that indicated that petitioner failed to 

participate in supervised visitations and continued to test positive for benzodiazepines and 

opiates. Thereafter, the circuit court held a dispositional hearing. After considering the evidence, 

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the circuit court denied petitioner’s motion for an improvement period and terminated her 

parental rights. It is from this 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, 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, the Court finds 

no error in the circuit court’s order denying petitioner an improvement period and terminating 

petitioner’s parental rights. 

First, petitioner argues that the circuit court denied her a meaningful opportunity to 

participate in the underlying proceedings because the circuit court denied her motion for an 

improvement period. We disagree. West Virginia Code § 49-6-12(b)(2) provides circuit courts 

discretion in granting post-adjudicatory improvement periods upon a showing that the parent will 

fully participate in an improvement period. The only evidence that petitioner was likely to fully 

participate in a post-adjudicatory improvement period was petitioner’s own self-serving 

statement in her brief on appeal. The evidence introduced at the dispositional hearing supports 

the circuit court’s decision to deny petitioner an improvement period. The circuit court was 

presented with evidence that petitioner’s parental rights were terminated to her three older 

children for failing to correct her drug use. The instant petition was initiated when the child was 

born with methadone and oxycodone in her system due to petitioner’s abuse during her 

pregnancy. Petitioner also admitted to using marijuana during her pregnancy. Finally, the DHHR 

submitted evidence that petitioner tested positive for benzodiazepines and opiates throughout the 

underlying proceedings. For these reasons, the circuit court did not err in denying petitioner’s 

motion for an improvement period. 

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

Specifically, petitioner contends that her prior involuntary termination did not constitute 

“aggravated circumstances” To begin, petitioner’s prior involuntary termination clearly falls 

within our statutory definition of “aggravated circumstances.” West Virginia Code § 49-6­

5(a)(7)(A) and (C) provides that “[t]he parent has subjected the child . . . to aggravated 

circumstances which include, . . . the parental rights of the parent to another child have been 

terminated involuntarily.” See also W.Va. Code § 49-6-3(d)(1) and (3). For these reasons, the 

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circuit court did not err in finding that petitioner’s prior involuntary termination constituted 

“aggravated circumstances.” 

Finally, petitioner argues that the circuit court erred in terminating her parental rights 

because it failed to develop evidence of what actions she had taken to remedy the conditions 

which led to her prior involuntary termination. We have previously held as follows: 

[w]here there has been a prior involuntary termination of parental rights to 

a sibling, the issue of whether the parent has remedied the problems which led to 

the prior involuntary termination sufficient to parent a subsequently-born child 

must, at minimum, be reviewed by a court, and such review should be initiated on 

a petition pursuant to the provisions governing the procedure in cases of child 

neglect or abuse set forth in West Virginia Code §§ 49–6–1 to –12 (1998). 

Although the requirement that such a petition be filed does not mandate 

termination in all circumstances, the legislature has reduced the minimum 

threshold of evidence necessary for termination where one of the factors outlined 

in West Virginia Code § 49–6–5b(a) (1998) is present. 

In re Kyiah P., 213 W.Va. 424, 427, 582 S.E.2d 871, 874 (2003) (quoting Syl. Pt. 2, In the 

Matter of George Glen B., 205 W.Va. 435, 518 S.E.2d 863 (1999)). In this matter, the circuit 

court clearly met the above requirement to review whether or not petitioner had remedied the 

problems that led to the prior involuntary termination of her parental rights. 

Petitioner’s prior involuntary termination was based, in part, upon petitioner’s illegal 

drug use and her failure to remedy her drug addiction. The instant abuse and neglect petition was 

initiated, in part, when the child was born with methadone and oxycodone in her system. The 

record reveals that petitioner admitted to using marijuana during her pregnancy. Further, the 

circuit court offered petitioner supervised visitation if she complied with drug screens, despite 

not being required because of her prior involuntary termination of parental rights pursuant to 

West Virginia Code § 49-6-5(a)(7)(C). As noted above, petitioner failed to participate in 

supervised visitation and tested positive for benzodiazepines and opiates throughout the 

underlying proceedings. Accordingly, we find that the circuit court did not err in finding that 

petitioner had not remedied the underlying conditions of abuse that led to her prior involuntary 

termination of parental rights, as her substance abuse issues persisted throughout the proceedings 

below. This same evidence also supports the circuit court’s findings that there was no reasonable 

likelihood that petitioner could substantially correct the conditions of abuse and neglect pursuant 

to West Virginia Code §§ 49-6-5(b)(1) and (3), and that termination of her parental rights was 

necessary for the child’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts 

are directed to terminate parental rights upon such findings. 

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

October 22, 2014, order is hereby affirmed. 

Affirmed. 

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ISSUED: April 13, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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