1

STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS

In re G.N., L.N., and A.N. 

No. 22-0312 (Kanawha 21-JA-669, 21-JA-670, and 21-JA-671) 

MEMORANDUM DECISION 

Petitioner Mother V.F.1 appeals the Circuit Court of Kanawha County’s April 5, 2022, 

order terminating her parental rights to G.N., L.N., and A.N.2 Upon our review, we determine that 

oral argument is unnecessary and that a memorandum decision affirming, in part, vacating, in part, 

the circuit court’s January 26, 2022, adjudicatory order and April 5, 2022, dispositional order and 

remanding for further proceedings is appropriate, in accordance with the “limited circumstances” 

requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure. 

In November 2021, the DHHR filed a petition alleging that after giving birth to G.N. in 

September 2021, petitioner abandoned G.N. and left him in the care of the maternal grandmother. 

According to the record, the maternal grandmother gained permanent legal guardianship of L.N. 

and A.N. in family court in September 2017 but was unable to care for G.N. G.N. was moved 

between several family members’ homes until the paternal aunt and uncle were granted temporary 

guardianship of G.N. in October 2021 in family court. While G.N. was placed with relatives, 

petitioner did not contact those relatives to ask about G.N. The DHHR also alleged that petitioner 

was homeless due to an illicit drug addiction, that G.N. was born drug exposed, and that petitioner 

attended only two prenatal appointments for G.N. Notably, these enumerated allegations in the 

petition were all specific to G.N., but the petition summarily concluded that petitioner has 

“abandoned the children.” Beyond mentioning that L.N. and A.N. were in guardianships with the 

maternal grandmother, the petition does not contain specific allegations of conduct that constitute 

abuse and/or neglect of L.N. and A.N. However, the petition concluded with broad, form language 

tracking the relevant statutes that alleged the children were additionally abused and/or neglected 

1Petitioner appears by counsel Kevin P. Davis. The West Virginia Department of Health 

and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey and 

Assistant Attorney General Brittany Ryers-Hindbaugh. Counsel Sandra K. Bullman appears as the 

children’s guardian ad litem. 

2We use initials where necessary to protect the identities of those involved in this case. See 

W. Va. R. App. P. 40(e). 

FILED 

June 13, 2023 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 
2

and/or abandoned.3 It is clear, however, that this additional language was not tailored to the 

specifics of petitioner’s case, as it made references to many circumstances with no relation to the 

specifics of the instant matter. This included allegations of sexual abuse and/or sexual exploitation, 

physical injury, and a lack of suitable relatives willing to assume responsibility for the care of the 

children. Further, the DHHR’s allegations of abandonment were explicitly predicated on West 

Virginia Code § 49-6-9, a statute that has not existed for approximately eight years, as it was 

recodified as § 49-4-301 in 2015, and addresses, among other things, when law enforcement is 

permitted to obtain emergency custody of child—a situation clearly inapplicable to the current 

matter. 

At the preliminary hearing, which petitioner waived, the circuit court ordered the DHHR 

to provide her reunification services, including drug screening. Shortly thereafter, petitioner 

enrolled in an inpatient drug rehabilitation program but was removed from that program in 

December 2021 for violating the program’s rules. Critical to the resolution of this appeal regarding 

L.N. and A.N. is the circuit court’s adjudication of petitioner following a hearing in January 2022.4

According to the adjudicatory order, the DHHR presented only one witness—a DHHR worker.5

Based on the evidence, the court found that petitioner “abused and/or neglected the child pursuant 

to West Virginia law by virtue of abandonment, substance abuse and lack of prenatal care.” 

(Emphasis added). The order goes on as follows: 

Based upon the testimony presented, the [c]ourt FOUND that the [r]espondent 

children are neglected children as defined in West Virginia Code Section 49-1-3(h) 

in that their physical or mental health is harmed or threatened by a present refusal, 

failure, or inability of the children’s parent, guardian, or custodian to supply the 

children with the necessary food, clothing, shelter, supervision, medical care, or 

education, when such refusal, failure, or inability is not due primarily to a lack of 

financial means on the part of the parent, guardian, or custodian. The [c]ourt 

FURTHER FOUND that the above-named children are abused within the meaning 

of West Virginia Code, Chapter 49, Article 1, Section 3(a), in that their health or 

welfare is harmed or threatened by a parent, guardian or custodian who knowingly 

or intentionally inflicts, attempts to inflict or knowingly allows another person to 

inflict physical injury, mental injury or emotional injury, upon the child or another 

child in the home. 

It must be noted that these “findings” are simply the legal definitions of “neglected child” and 

“abused child,” as found in West Virginia Code § 49-1-201, the statute that replaced § 49-1-3 as 

cited in the circuit court’s order. 

3This is in contravention of Rule 18(a) of the West Virginia Rules of Procedure for Child 

Abuse and Neglect Proceedings, which requires “[c]itations to statutes relied upon in requesting 

the intervention of the court and how the alleged misconduct or incapacity comes within the 

statutory definition of neglect and/or abuse.” (Emphasis added). 

4Petitioner did not attend the adjudicatory hearing, though she was represented by counsel. 

5The appendix does not contain a transcript of the adjudicatory hearing. 
3

Petitioner filed a motion for an improvement period in March 2022. That same month, the 

court held a final dispositional hearing, during which petitioner testified that she missed the 

adjudicatory hearing because she needed a “safe place” to avoid using drugs. She stated that she 

was enrolled in an inpatient drug rehabilitation program in March 2022. The DHHR presented 

evidence that petitioner had been uncooperative with services throughout most of the case. The 

DHHR worker testified that petitioner did nothing to gain visitation with the children from 

November 2021 to March 2022. Upon the evidence presented, the court found that petitioner failed 

to complete a drug treatment program and “disappeared” from the proceedings for two months. 

The circuit court determined that there was no reasonable likelihood that the conditions of neglect 

or abuse could be substantially corrected in the near future and that it was necessary for the 

children’s welfare to terminate petitioner’s parental rights. Petitioner now appeals the April 5, 

2022, dispositional order. 6

On appeal from a final order in an abuse and neglect proceeding, this Court reviews the 

circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re 

Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). 

To begin, we first address whether the circuit court properly exercised jurisdiction over 

L.N. and A.N. As we recently explained, 

[t]o exercise subject matter jurisdiction [in an abuse and neglect proceeding], the 

court must make specific factual findings explaining how each child’s health and 

welfare are being harmed or threatened by the allegedly abusive or neglectful 

conduct of the parties named in the petition. Due to the jurisdictional nature of this 

question, generalized findings applicable to all children named in the petition will 

not suffice; the circuit court must make specific findings with regard to each child 

so named. 

Syl. Pt. 3, in part, In re B.V., -- W. Va. --, -- S.E.2d --, 2023 WL 2769431 (Jan. 10, 2023). As set 

forth above, the circuit court did not make specific findings of fact regarding the abuse and neglect 

of L.N. and A.N. in the January 26, 2022, adjudicatory order. In addition to B.V.’s requirement 

that courts make specific findings with regard to each child, we have also discussed the sufficiency 

of orders in these proceedings and their impact on this Court’s ability to review possible errors. 

We previously explained that 

[p]rocedurally, these various directives [set forth in the Rules of Procedure for 

Child Abuse and Neglect Proceedings and related statutes] also provide the 

necessary framework for appellate review of a circuit court’s action. Where a lower 

court has not shown compliance with these requirements in a final order, and such 

cannot be readily gleaned by this Court from the record, the laudable and 

indispensable goal of proper appellate review is thwarted. 

6The father’s parental rights were also terminated below. According to the parties, the 

permanency plan for G.N. is adoption by an aunt and uncle. L.N. and A.N. will remain in their 

legal guardianship. 
4

In re Edward B., 210 W. Va. 621, 632, 558 S.E.2d 620, 631 (2001). We further elucidate that 

“[a]dequate findings must be made in order to protect the rights of litigants and to facilitate review 

of the record by an appellate court.” Id. (citation omitted). Edward B. concerned a dispositional 

order that failed to include specific findings required for termination of parental rights. Id. at 629-

30, 558 S.E.2d at 628-29. Although the order lacking findings before us is an adjudicatory order, 

the Court’s analysis in Edward B. is instructive in this circumstance because the circuit court made 

no specific findings regarding petitioner’s alleged abusive and neglectful conduct of L.N. and A.N. 

Here, the circuit court failed to make specific factual findings as to how L.N. and A.N., 

two children placed in a legal guardianship approximately four years prior to the initiation of 

these proceedings, were abused and/or neglected by petitioner. The adjudicatory order simply 

declared that L.N. and A.N. were abused and neglected children and made general findings of 

abuse and neglect as to all three children by reciting the statutory definitions, contained in West 

Virginia Code § 49-1-201, for an abused and/or neglected child. Our confusion is further 

compounded by the circuit court’s reference to “the child” and the DHHR’s general lack of 

specificity in its petition, leading to the presumption that the factual findings at adjudication apply 

only to G.N. 

The lack of specific findings as to L.N. and A.N. is in opposition to B.V. and its prohibition 

against “generalized findings applicable to all children named in the petition.” B.V., -- W. Va. at -

-, -- S.E.2d at --, 2023 WL 2769431, Syl. Pt. 3, in part. Because the circuit court failed to establish 

that it properly exercised subject matter jurisdiction over L.N. and A.N., we vacate, in part, the 

adjudicatory order and the dispositional order regarding L.N. and A.N. and remand only for further 

proceedings consistent with this decision. See Syl. Pt. 5, In re Edward B., 210 W. Va. 621, 558 

S.E.2d 620 (2001) (permitting the vacation of orders when “the process established by the Rules 

of Procedure for Child Abuse and Neglect Proceedings and related statutes for the disposition of 

cases involving children [alleged] to be abused or neglected has been substantially disregarded or 

frustrated”). 

However, because the evidence established that G.N. was an abused and neglected child 

due to petitioner’s (1) failure to seek prenatal care while pregnant with G.N., (2) abuse of 

substances while pregnant with G.N., and (3) abandonment of G.N., the circuit court properly 

exercised jurisdiction over G.N. As such, we address petitioner’s arguments on appeal only as 

they pertain to that child. 

First, petitioner argues that she should have been entitled to a post-adjudicatory 

improvement period. According to West Virginia Code § 49-4-610(2), a circuit court may grant a 

post-adjudicatory improvement period when it finds that the parent is likely to fully participate in 

an improvement period. Here, petitioner failed to participate in most services, missed the 

adjudicatory hearing, failed to stay in communication with the DHHR, and failed to establish visits 

with G.N., which resulted in the DHHR’s termination of services. As such, the court did not find 

petitioner’s testimony that she would fully participate in an improvement period credible, and we 

will not disturb this determination. See Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 

S.E.2d 531, 538 (1997) (“A reviewing court cannot assess witness credibility through a record. 

The trier of fact is uniquely situated to make such determinations and this Court is not in a position 

to, and will not, second guess such determinations.”). Accordingly, we find no abuse of discretion 
5

in the court’s refusal to grant petitioner an improvement period. See In re Tonjia M., 212 W. Va. 

443, 448, 573 S.E.2d 354, 359 (2002) (holding that a circuit court’s ruling on an improvement 

period is reviewed for an abuse of discretion).

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

that the conditions of abuse and neglect had been corrected by the time of the dispositional hearing. 

However, petitioner’s arguments that she was sober and had obtained a home is disingenuous 

considering that she was living at a drug rehabilitation facility at the time of the dispositional 

hearing, which the evidence established was not stable or appropriate housing for a child. Further, 

petitioner cites a single clean drug screen in March 2022 to support her claim of sobriety. To the 

contrary, the record shows that petitioner failed to follow through with the DHHR’s services and 

failed to complete drug treatment. Accordingly, we find no error in the circuit court’s conclusion 

that there was no reasonable likelihood that petitioner could correct the conditions of abuse and 

neglect. See W. Va. Code § 49-4-604(d)(3) (providing that there is no reasonable likelihood that 

the conditions of neglect or abuse can be substantially corrected when “[t]he abusing parent . . . 

[has] not responded to or followed through with a reasonable family case plan or other 

rehabilitative efforts of social, medical, mental health, or other rehabilitative agencies designed to 

reduce or prevent the abuse or neglect of the child.”); see also Syl. Pt. 5, In re Kristin Y., 227 W. 

Va. 558, 712 S.E.2d 55 (2011) (holding that “[t]ermination of parental rights . . . may be employed 

without the use of intervening less restrictive alternatives when it is found that there is no 

reasonable likelihood . . . that [the] conditions of neglect or abuse can be substantially corrected”). 

Upon this record, the Court finds no error in the circuit court’s termination of petitioner’s parental 

rights to G.N. only. 

For the foregoing reasons, we affirm, in part, and vacate, in part, the circuit court’s January 

26, 2022, adjudicatory order and April 5, 2022, dispositional order.7 We affirm the adjudication of 

G.N. as an abused and/or neglected child and affirm the termination of petitioner’s parental rights 

to G.N. only. We vacate the adjudication of L.N. and A.N. as abused and/or neglected children 

and vacate the termination of petitioner’s parental rights to L.N. and A.N. This matter is remanded 

to the circuit court for further proceedings, including but not limited to the entry of an order setting 

out the requisite findings as to whether L.N. and A.N. met the statutory definitions of abused or 

neglected children, based on the evidence previously adduced. See W. Va. Code § 49-1-201. To 

the extent that the evidence does not support such a determination, we further direct the circuit 

court to undertake such proceedings, consistent with this decision, as may be necessary to ascertain 

whether L.N. and A.N. met the statutory definitions of abused or neglected children, so that the 

circuit court might properly exercise jurisdiction. The circuit court is directed to enter an 

adjudicatory order within the next thirty days. The Clerk is hereby directed to issue the mandate 

contemporaneously herewith. 

Affirmed in part, vacated in part, and remanded. 

7The vacation of these orders applies only to petitioner. Those orders also adjudicated the 

father as an abusing parent and terminated his parental rights. However, the father did not appeal 

those decisions. Accordingly, the portions of the orders concerning the father remains in full force 

and effect. 
6

ISSUED: June 13, 2023 

CONCURRED IN BY: 

Chief Justice Elizabeth D. Walker 

Justice Tim Armstead 

Justice John A. Hutchison 

Justice William R. Wooton 

Justice C. Haley Bunn