STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In Re: R.H. FILED 

March 12, 2013 

No. 12-1317 (Monroe County 11-JA-05) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother filed this appeal, by counsel John C. Anderson II, from the Circuit 

Court of Monroe County which terminated her parental rights by order entered on October 12, 

2012. The guardian ad litem for the child, Sherri R. Freeman, has filed a response supporting the 

circuit court’s order. The Department of Health and Human Resources (“DHHR”), by its 

attorney Michael Jackson, also filed a response in support of the circuit court’s order. 

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 is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

In August of 2011, the DHHR filed the petition that initiated this case. Its petition 

outlined the extensive history of the parents’ involvement with Child Protective Services 

(“CPS”), the parents’ extensive history of domestic violence with each other, and Petitioner 

Mother’s history of drug use. In a recent domestic violence episode prior to the DHHR filing its 

petition, R.H.’s father rammed his vehicle into the other family car, causing gravel to spray onto 

the child standing in the yard. In retaliation, Petitioner Mother threw a dolly, one normally used 

for transporting items, through the father’s windshield. During the proceedings, Petitioner 

Mother and R.H.’s father each moved for a post-adjudicatory improvement period. The circuit 

court denied these motions. At the dispositional hearing, they each again moved for 

improvement periods. After taking the matter under advisement, the circuit court entered, in 

October of 2012, its dispositional order terminating the parental rights of both parents. Petitioner 

Mother appeals. 

Petitioner Mother argues that the circuit court erred by terminating her parental rights 

without an improvement period. She asserts that her actions throughout the case demonstrated 

that she was willing and able to correct her behavior. Petitioner Mother asserts that throughout 

the case, she attended meetings for Narcotics Anonymous and anger management classes. She 

further asserts that she was present at all Multi-Disciplinary Team meetings and all circuit court 

hearings. Accordingly, Petitioner Mother argues that even though she was willing to fix her 

negative behaviors, she was never given the opportunity to do so. In response, the child’s 

guardian ad litem and the DHHR contend that the circuit court did not err in terminating 

Petitioner Mother’s parental rights without an improvement period. Both highlight Petitioner 

Mother’s extensive history of domestic violence without any improvement throughout the years, 

despite services from the DHHR. 

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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 termination of Petitioner 

Mother’s parental rights without a post-adjudicatory improvement period. Pursuant to West 

Virginia Code § 49-6-12, the subject parent bears the burden of proving that he or she would 

substantially comply with an improvement period and the circuit court has the discretion to grant 

or deny this improvement period. The Court finds that the circuit court was presented with 

sufficient evidence upon which it could have based findings that Petitioner Mother would not 

substantially comply with an improvement period. Our review also supports the circuit court’s 

findings that there were no reasonable grounds to believe that conditions of abuse and neglect 

could be substantially corrected in the near future and that termination 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 affirm the circuit court’s order terminating petitioner’s 

parental rights to the subject child. 

Affirmed. 

ISSUED: March 12, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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