STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS
 

FILED 

In re E.W.-1 February 23, 2018 

EDYTHE NASH GAISER, CLERK 

No. 17-0870 (Kanawha County 17-JA-145) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father, E.W.-2, by counsel Benjamin Freeman, appeals the Circuit Court of 

Kanawha County’s August 30, 2017, order terminating his parental rights to E.W.-11 The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel Steven R. 

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

(“guardian”), Christopher C. McClung, filed a response on behalf of the child in support of the 

circuit court’s order. On appeal, petitioner argues that the circuit court erred in not granting him a 

post-dispositional improvement period and finding that the Circuit Court of Kanawha County 

was the proper venue for these proceedings.2 

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. 

On March 23, 2017, the DHHR filed an abuse and neglect petition against petitioner. The 

petition alleged that petitioner’s substance abuse issues and homelessness prevented him from 

being an appropriate parent. Petitioner was not present for the preliminary hearing, but was 

represented by counsel. During the preliminary hearing, it was discovered that there was a 

similar petition against petitioner pending in the Circuit Court of Lincoln County. However, the 

1

Consistent 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). Additionally, because the child and petitioner have the same 

initials, they will be referred to as E.W.-1 and E.W.-2, respectively, throughout this 

memorandum decision. 

2

Petitioner makes no specific assignment of error as to the termination of his parental 

rights. 

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judges in both matters conferred and decided that Kanawha County should be the proper forum. 

No party objected to the determination of venue.3 

On May 31, 2017, the circuit court held an adjudicatory hearing, at which petitioner did 

not appear, but was represented by counsel. The mother testified to her drug use as well as the 

drug use that occurred in the home. A Child Protective Services (“CPS”) worker testified that 

petitioner signed a family case plan in February and then tested positive for methamphetamines 

the next day. As a result of his positive drug screen, petitioner’s visits with the child were 

suspended. Petitioner was adjudicated as an abusing parent. 

On July 14, 2017, the circuit court held a dispositional hearing wherein it denied 

petitioner’s motion for a post-adjudicatory improvement period. A service provider testified that 

petitioner had a suitable residence, but continued to test positive for illegal drugs. As a result, 

petitioner was not permitted to visit with the child. The service provider testified that petitioner 

works odd jobs. Petitioner testified that, if drug tested, he would test positive for opiates and 

methamphetamine. However, petitioner stated he did not believe he had a drug problem and that 

he obtains opiates from older people for whom he does odd jobs. A Lincoln County CPS worker 

testified that she made numerous attempts to help petitioner with his drug problem, but was not 

successful. A Kanawha County CPS worker testified that the DHHR made reasonable efforts to 

reunify the family and that she felt that termination of petitioner’s parental rights was in the best 

interests of the child. The circuit court found no reasonable likelihood that petitioner could 

correct the conditions of abuse and neglect in the near future and that it was in the child’s best 

interests to terminate his parental rights. The circuit court also found post-termination visitation 

to be contrary to the child’s best interests. Ultimately, the circuit court terminated petitioner’s 

parental rights in its August 30, 2017, order.4

 It is from the dispositional 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 

3

 Although petitioner received services in Lincoln County, the proceedings there never 

progressed beyond the filing of the petition and the matter was subsequently dismissed. 

4

In addition to the termination of petitioner’s parental rights, the mother’s parental rights 

were also terminated. According to the guardian and the DHHR, the child is placed in a foster 

home with a permanency plan of adoption in that home. 

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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 proceedings below. 

First, petitioner argues that the circuit court erred in refusing to grant him a postdispositional improvement period. Petitioner argues that it is in the best interests of the child for 

him to receive a post-dispositional improvement period and that he could correct his drug abuse 

issues with proper treatment. Petitioner believes that the child may be emotionally and 

psychologically damaged if he were to remain in foster care with “caregivers who are essentially 

strangers.” Finally, he argues that the circuit court denied him the opportunity to make 

improvements to his “parental shortcomings.” 

Pursuant to West Virginia Code § 49-4-610(3), a circuit court may grant a postdispositional 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[.]” Here, petitioner failed to present any evidence to show 

that he would be likely to comply with an improvement period. Petitioner continued to use drugs 

throughout the proceedings, despite the fact that he was offered services to remedy the issue. 

Petitioner’s argument ignores the fact that he failed to make any progress with the DHHR’s 

assistance during the proceedings. Finally, petitioner makes no citation to the record on appeal to 

indicate that he moved for a post-dispositional improvement period. 

We have also held that 

[i]n order to remedy the abuse and/or neglect problem, the problem must first be 

acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth 

of the basic allegation pertaining to the alleged abuse and neglect or the 

perpetrator of said abuse and neglect, results in making the problem untreatable 

and in making an improvement period an exercise in futility at the child’s 

expense. 

In re Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215 

W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Here, petitioner failed to acknowledge his drug 

abuse issues and, despite the CPS workers’ attempts to help him with his addiction, he continued 

to test positive on drug screens. Due to his failure to acknowledge his drug abuse issues, to grant 

petitioner a post-dispositional improvement period would be futile. Therefore, we find that 

petitioner failed to satisfy the applicable burden to obtain a post-dispositional improvement 

period and we find no error by the circuit court in this regard. 

Petitioner also argues that the circuit court erred in finding that Kanawha County, rather 

than Lincoln County, was the proper venue for these proceedings. Petitioner is a resident of 

Lincoln County and argues that a petition was filed in Lincoln County months before the petition 

was filed in Kanawha County. Accordingly, petitioner argues that the proceedings should have 

remained in Lincoln County because, pursuant to West Virginia Code § 49-4-601(a), a petitioner 

may not file a petition under the same set of facts in more than one county. We disagree. 

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First, although petitioner is correct that a party may not file an abuse and neglect petition 

in more than one county based on the same set of facts, under West Virginia Code § 49-4-601(a), 

Kanawha County is a proper venue for these proceedings given that one of the respondents 

resided in Kanawha County. The record indicates that no proceedings took place in Lincoln 

County after a procedural order was entered filing the petition and that the Lincoln County abuse 

and neglect case was dismissed. Further, petitioner does not argue that he was prejudiced by the 

proceedings being held in Kanawha County and fails to acknowledge that throughout the 

proceedings in Kanawha County, the DHHR provided services to him in Lincoln County. 

Furthermore, the Lincoln County and Kanawha County circuit courts conferred and determined 

that there was no good cause to transfer the matter to Lincoln County in an effort to promote his 

compliance. Therefore, we find no error in the circuit court’s decision that Kanawha County was 

an appropriate venue for these proceedings. 

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

August 30, 2017, order is hereby affirmed. 

Affirmed. 

ISSUED: February 23, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

Justice Elizabeth D. Walker 

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