STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

In re: Z.H. and N.H. November 14, 2016 

RORY L. PERRY II, CLERK 

No. 16-0625 (Mercer County 14-JA-172-WS & 14-JA-173-WS) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father A.H., by counsel David B. Kelley, appeals the Circuit Court of Mercer 

County’s May 27, 2016, order terminating his parental, custodial, and guardianship rights to tenyear-old Z.H. and seven-year-old N.H. The West Virginia Department of Health and Human 

Resources (“DHHR”), by counsel S.L. Evans, filed its response in support of the circuit court’s 

order. The guardian ad litem (“guardian”), John Earl Williams Jr, filed a response on behalf of 

the children, also in support of the circuit court’s order. On appeal, petitioner argues that the 

circuit court erred in denying his motion for a dispositional improvement period.1 

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 2008 and 2011, petitioner successfully completed two treatment plans and regained 

custody of his children. In 2012, the DHHR filed another petition for abuse and neglect against 

petitioner alleging that he failed to provide appropriate supervision for his children. After 

approximately two years of services, petitioner successfully completed his improvement period 

and the case was dismissed by order entered in May of 2014. 

Approximately seven months after the 2012 proceeding was dismissed, the DHHR filed 

yet another petition for abuse and neglect against petitioner alleging that he failed to properly 

supervise his children, exposed his children to acts of domestic violence, and failed to protect his 

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We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and 

recodified during the 2015 Regular Session of the West Virginia Legislature. The new 

enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and 

became effective on May 20, 2015. In this memorandum decision, we apply the statutes as they 

existed during the pendency of the proceedings below. It is important to note, however, that the 

abuse and neglect statutes underwent minor stylistic revisions and the applicable changes have 

no impact on the Court’s decision herein. 

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children from an alleged sexual assault. The circuit court held an adjudicatory hearing during 

which it heard testimony from several witnesses. After considering the testimony and evidence, 

the circuit court held that petitioner neglected his children in that he was “unable to provide a 

stable and appropriate home . . . or care for” his children. The circuit court took petitioner’s 

motion for a post-adjudicatory improvement period under advisement. 

In April of 2016, the circuit court held a dispositional hearing during which it heard 

testimony that while petitioner received multiple services during his prior abuse and neglect 

proceedings, he continued to provide insufficient supervision to his children and exposed his 

children to sexual abuse. By order entered on May 27, 2016, the circuit court terminated 

petitioner’s parental, custodial, and guardianship rights to his children. This appeal followed. 

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). 

On appeal, petitioner assigns error to the circuit court’s termination of his parental rights 

without first granting his motion for a dispositional improvement period. Pursuant to West 

Virginia Code § 49-4-610(3), circuit courts have discretion to grant an improvement period when 

the parent “moves in writing for the improvement period [and] demonstrates, by clear and 

convincing evidence, that the [parent] is likely to fully participate in the improvement period . . . 

.” To begin, the record is devoid of any evidence that petitioner filed a motion for a postdispositional improvement period. Be that as it may, it is clear that the circuit court did not abuse 

its discretion in denying petitioner a post-dispositional improvement period. As outlined above, 

petitioner was provided approximately two years of services in prior abuse and neglect 

proceedings to correct the conditions that led to his neglect of his children. Despite these 

services, petitioner failed to benefit from the same, as evidenced by his conduct, which 

necessitated the filing of the underlying petition for substantially similar conditions of abuse and 

neglect. Following the completion of his prior improvement period, he continued to place his 

children in unsafe and dangerous situations, including exposing them to sexual abuse. For these 

reasons, we find no error. 

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For the foregoing reasons, we find no error in the circuit court’s May 27, 2016, order, and 

we hereby affirm the same. 

Affirmed. 

ISSUED: November 14, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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