STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED In re: D.B. & S.B. 

November 23, 2015 

RORY L. PERRY II, CLERK No. 15-0209 (Morgan County 14-JA-33, 14-JA-34, 12-JA-20, & 12-JA-21) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother H.W., by counsel William Prentice Young, appeals the Circuit Court of 

Morgan County’s January 29, 2015, order terminating her parental rights to D.B. and S.B. The 

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

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

(“guardian”), Nicholas Forrest Colvin, filed a response on behalf of the children in support of the 

circuit court’s order. On appeal, petitioner alleges that the circuit court erred in determining that 

the DHHR was not obligated to provide remedial services to her, in denying petitioner’s motion 

for an improvement period, and in terminating her parental rights.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. 

Petitioner has two biological children, D.B. and S.B., and two step-children, D.G. and 

W.G.2 Petitioner’s biological children have been the subjects of two previous abuse and neglect 

proceedings. The first petition was filed in 2005, during which petitioner received services 

through the DHHR and successfully completed an improvement period. The second petition was 

filed in 2012, during which petitioner was awarded an improvement period but chose to 

relinquish her custodial rights to the children’s biological father rather than comply with the 

terms of another improvement period. The second petition was ongoing at the time the third, and 

underlying, abuse and neglect petition was filed. Although the third petition was initially filed to 

protect the step-children, it was later amended to include petitioner’s biological children. The 

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We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and 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 ninety days after the February 19, 2015, approval date. In this memorandum 

decision, we apply the statutes as they existed during the pendency of the proceedings below. 

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D.G. and W.G. are the adopted children of petitioner’s husband, J.W. Although they 

were included in the petition below, petitioner makes no assignment of error regarding D.G. and 

W.G. on appeal. As such, those children are not the subject of this appeal. 

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conditions of abuse and neglect in all three petitions are petitioner’s substance abuse and mental 

illness, and her involvement in domestic violence. 

In November of 2013, petitioner began a relationship with the father, J.W., and the two 

were married on January 6, 2014. J.W. had two adopted children, D.G. and W.G., who were the 

biological grandchildren of J.W.’s deceased previous wife. Petitioner resided with J.W. and his 

two children. Petitioner’s biological children, D.B. and S.B. resided with their father. In May of 

2014, petitioner and J.W. got into an argument over her abuse of prescription Klonopin and her 

attempt to overdose on Klonopin after a disagreement she had with her ex-husband. Petitioner 

and J.W.’s argument until it escalated into domestic violence, wherein petitioner punched and 

scratched J.W. and cut him with a knife. D.G and W.G both witnessed the incident. After being 

cut, J.W. ran to a local fire station for help. Petitioner continued to behave in an erratic manner in 

front of her step-children. Both petitioner and J.W. were arrested. Petitioner became combative 

with the police officers arresting her. She was tased after throwing herself on the floor and 

kicking at the officers. The DHHR took emergency custody of D.G and W.G and filed an abuse 

and neglect petition alleging that the children were abused and neglected through their exposure 

to domestic violence. The petition contained additional allegations concerning petitioner’s arrest, 

her instability, and her threats of suicide by overdose. 

In May of 2014, the circuit court held a preliminary hearing and adopted the emergency 

protective order issued by the Magistrate Court of Morgan County to protect D.G. and W.G. 

from petitioner. Thereafter, the petition was amended to include petitioner’s biological children, 

D.B. and S.B., and to include allegations against J.W. for dismissing the protective order against 

petitioner after its adoption by the circuit court, and for allowing petitioner to have contact with 

D.G. and W.G. despite the circuit court’s no-contact order. The petition was amended a second 

time to include the additional allegations that petitioner and J.W. disregarded the circuit court’s 

no-contact order again and jointly planned, held, and attended a birthday party for one of J.W.’s 

children. 

In November of 2014, the circuit court held an adjudicatory hearing wherein petitioner 

and J.W. stipulated to the allegations of abuse and neglect, and were adjudicated as abusing 

parents. Petitioner filed a motion for a post-adjudicatory improvement period which the DHHR 

and the guardian opposed. The circuit court denied petitioner’s motion and found that petitioner 

had been involved in multiple abuse and neglect proceedings over a nine-year period, and that 

she did not comply with her last improvement period, which resulted in the removal of her 

children, D.B. and S.B. The circuit court further found that petitioner had a long history of 

substance abuse, mental illness, and domestic violence which led to the filing of the current 

petition. 

In January of 2015, the circuit court held a dispositional hearing and, after reviewing the 

evidence, terminated petitioner’s parental rights to D.B. and S.B. The circuit court denied 

petitioner’s request for a dispositional improvement period and placed any decisions regarding 

visitation at the guardian’s discretion. Petitioner now appeals from the dispositional order. 

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Petitioner’s sole argument on appeal is that the circuit court erred in finding that the 

DHHR was not obligated to provide her with remedial services. 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’s parental rights. Specifically, petitioner 

contends that because no remedial services were provided to her, the resulting denial of 

petitioner’s motions for improvement periods and termination of her parental rights was likewise 

in error. The Court, however, does not agree. We find that the circuit court properly terminated 

petitioner’s parental rights upon a finding that she could not substantially correct the conditions 

of abuse and neglect. 

Petitioner exposed her children to chronic abuse and endangered her step-children and 

her biological children. Pursuant to West Virginia Code § 49-6-5(b), there is “no reasonable 

likelihood that conditions of neglect and abuse can be corrected” when “based upon the evidence 

before the court, the abusing adult . . . [has] demonstrated an inadequate capacity to solve the 

problems of abuse or neglect on their own or with help.” Further, where a parent has “habitually 

abused or are addicted to alcohol, controlled substances or drugs to the extent that proper 

parenting skills have been seriously impaired . . . and [has] not responded to or followed through 

the recommended and appropriate treatment which could have improved the capacity for 

adequate parental functioning . . . “then there is no reasonable likelihood that the conditions 

underlying the abuse can be substantially corrected in the near future.” W. Va. Code § 49-6­

5(b)(1) (2012). The circuit court based its finding that the DHHR was not obligated to provide 

remedial services upon the evidence of petitioner’s nine-year history of continued drug and 

alcohol abuse, mental illness, and domestic violence. Petitioner’s actions over the same nine-year 

period show that she is unable to correct the conditions leading to the abuse and neglect with or 

without assistance. The record on appeal shows that this is the third abuse and neglect petition 

filed against petitioner and that the conditions of abuse identified in 2005 continue to exist. 

Specifically, petitioner continued to abuse substances, failed to manage her mental illness, and 

has engaged in more severe domestic violence, this time in front of her step-children. Petitioner 

has had nine years to correct the conditions of abuse, and neglect but the conditions have further 

escalated. 

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We have held that “in some instances, the only remedy is termination of parental rights 

when there is no reasonable likelihood that the parenting deficiencies or abuse cannot be 

substantially corrected.” In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). There is no 

evidence on the record that petitioner is capable of remedying the conditions of abuse and 

neglect substantially or in the near future. “When it is determined that the conditions that gave 

rise to the removal of the child from the home cannot be remedied, W. Va. Code § 49-6-5(a)(6) 

(2009) states that termination of the parental, custodial and guardianship rights of the abusing 

parent is the remedy.” Id. at 569. Therefore, we find that the circuit court properly terminated 

petitioner’s parental rights upon a finding that she could not substantially correct the conditions 

of abuse and neglect. 

Petitioner further argues that the circuit court erred in denying her motion for an 

improvement period. Specifically, petitioner contends that the DHHR should have provided her 

with additional services to aid in correcting the conditions of abuse and neglect. Upon our 

review, we find that petitioner was not entitled to an improvement period because the circuit 

court properly terminated her parental rights upon a finding that she could not substantially 

correct the conditions of abuse and neglect. 

West Virginia Code § 49-6-12(b)(2) provides that a parent may be granted an 

improvement period where the parent proves by clear and convincing evidence that she is likely 

to fully participate in the terms of the improvement period plan. However, that alternative is not 

available where a circuit court determines that there is no reasonable likelihood that conditions of 

abuse and neglect abuse can be substantially corrected in the near future. In re Emily, 208 W.Va. 

553, 336, 540 S.E.2d 542, 552 (2000) (holding that “a dispositional improvement period is not 

available to a respondent parent where a finding is made pursuant to W. Va. Code 49-6-5(a)(6) 

(1977) that there is no reasonable likelihood that the conditions of neglect or abuse can be 

substantially corrected in the near future . . . . “) (internal citations omitted). 

Based on our review of the record, we find that petitioner was not entitled to an 

improvement period because the circuit court properly terminated petitioner’s parental rights 

upon a finding that she could not substantially correct the conditions of abuse and neglect given 

her continued substance abuse, mental illness, and escalating domestic violence. 

For these reasons, the circuit court’s termination of petitioner’s parental rights was not 

error. For the foregoing reasons, the circuit court’s January 29, 2015, termination order is hereby 

affirmed. 

Affirmed. 

ISSUED: November 23, 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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