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STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS

 

In re C.H. 

No. 18-0590 (Cabell County 17-JA-155) 

MEMORANDUM DECISION 

Petitioner Mother M.M., by counsel Kerry A. Nessel, appeals the Circuit Court of Cabell 

County’s June 14, 2018, order terminating her parental rights to C.H.1 The West Virginia 

Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a 

response in support of the circuit court’s order. The guardian ad litem (“guardian”), Cathy L. 

Greiner, filed a response on behalf of the child in support of the circuit court’s order and a 

supplemental appendix. On appeal, petitioner argues that the circuit court erred in denying her 

motion for an extension of her post-adjudicatory improvement period and terminating her 

parental rights. 

 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 June 30, 2017, the DHHR filed an abuse and neglect petition against petitioner and 

the father alleging that petitioner abused illegal substances and engaged in domestic violence 

with the father in the child’s presence. Petitioner waived her preliminary hearing. On August 31, 

2017, the circuit court held an adjudicatory hearing during which petitioner stipulated to the 

allegations of substance abuse and domestic violence. Accordingly, petitioner was adjudicated as 

an abusing parent and granted a post-adjudicatory improvement period. A case plan was 

developed requiring petitioner to have independent, stable housing and a reliable source of 

income; complete parenting and adult life skills classes; and consistently visit with the child. In 

November of 2017, petitioner participated in a psychological evaluation during which she 

reported that she began using illegal substances at age thirteen or fourteen. She admittedly began 

using Oxycontin at age nineteen. According to the psychological evaluation, petitioner’s 

prognosis for parental improvement was poor. 

 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). 

FILED 

November 19, 2018 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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In February of 2018, the circuit court held a review hearing. The circuit court found that 

petitioner failed to obtain employment or stable housing and that her visits with the child were 

inconsistent and did not go well. On May 10, 2018, the circuit court held a dispositional hearing 

during which petitioner requested an extension of her post-adjudicatory improvement period, 

which the circuit court denied. The DHHR recommended the termination of petitioner’s parental 

rights. The DHHR presented evidence that petitioner was “unable to control her emotions,” 

failed to adequately address her anger issues, and remained unemployed. The DHHR also 

presented evidence that petitioner threatened to kill the father. A DHHR service provider 

testified that the child did not wish to visit with petitioner and that petitioner missed several visits 

with the child. According to the DHHR, petitioner often failed to interact with the child and did 

not demonstrate proper parenting skills. After taking evidence, the circuit court found that 

petitioner missed visits with the child and that the visits in which she participated were not 

productive. The circuit court also found that petitioner and the father were hostile toward each 

other and refused to co-parent the child. Further, the circuit court found no reasonable likelihood 

that the conditions of abuse and neglect could be substantially corrected in the near future and 

that the termination of petitioner’s parental rights was in the child’s best interests. Ultimately, the 

circuit court terminated petitioner’s parental rights in its June 14, 2018, order.2

 It is from this 

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 

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, this Court 

finds no error in the proceedings below. 

On appeal, petitioner argues that the circuit court erred in denying her motion for an 

extension of her post-adjudicatory improvement period. In support of her argument, petitioner 

asserts that she complied with most of the terms and conditions of her post-adjudicatory 

improvement period and family case plan. She further argues that she acknowledged and 

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The father’s parental rights were also terminated. According to respondents, the 

permanency plan for the child is adoption by her paternal grandmother. 
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admitted to the neglect of the child and, therefore, the issues of neglect were treatable and 

“mostly cured by and through her improvement period and the family case plan.” We do not find 

petitioner’s argument compelling. 

Pursuant to West Virginia Code § 49-4-610(6), 

[a] court may extend any improvement period granted pursuant to subdivision (2) 

or (3) of this section for a period not to exceed three months when the court finds 

that the [parent] has substantially complied with the terms of the improvement 

period; that the continuation of the improvement period will not substantially 

impair the ability of the department to permanently place the child; and that the 

extension is otherwise consistent with the best interest of the child. 

Here, petitioner complied with most of the terms and conditions of her post-adjudicatory 

improvement period. However, the record shows that petitioner missed several visits and during 

visits she did attend, she was unable to implement appropriate parenting skills. “We have 

previously pointed out that the level of interest demonstrated by a parent in visiting his or her 

children while they are out of the parent’s custody is a significant factor in determining the 

parent’s potential to improve sufficiently and achieve minimum standards to parent the child.” In 

re Katie S., 198 W.Va. 79, 90 n.14, 479 S.E.2d 589, 600, n.14 (1996) (citing Tiffany Marie S., 

196 W.Va. at 228 and 237, 470 S.E.2d at 182 and 191 (1996)); State ex rel. Amy M. v. Kaufman, 

196 W.Va. 251, 259, 470 S.E.2d 205, 213 (1996)). We have also held that “[i]n making the final 

disposition in a child abuse and neglect proceeding, the level of a parent’s compliance with the 

terms and conditions of an improvement period is just one factor to be considered. The 

controlling standard that governs any dispositional decision remains the best interests of the 

child.” Syl. Pt. 4, In re B.H., 233 W.Va. 57, 754 S.E.2d 743 (2014). While petitioner participated 

in some of the terms of her post-adjudicatory improvement period, she admittedly failed to 

obtain employment during the proceedings. Additionally, despite classes and services, she was 

unable to control her emotions at times and failed to adequately address her anger issues. Due to 

her failure to make any meaningful improvements during the proceedings, the circuit court did 

not err in denying petitioner’s motion for an extension of her post-adjudicatory improvement 

period. 

Further, we find no error in the circuit court’s termination of petitioner’s parental rights. 

Petitioner argues that the circuit court denied her the opportunity to “continue to correct her 

shortcomings as a parent.” We disagree. West Virginia Code § 49-4-604(b)(6) provides that 

circuit courts are to terminate parental rights upon findings that there is “no reasonable likelihood 

that the conditions of neglect or abuse can be substantially corrected in the near future” and that 

termination is necessary for the children’s welfare. West Virginia Code § 49-4-604(c)(3) 

provides that a situation in which there is no reasonable likelihood the conditions of abuse and 

neglect can be substantially corrected includes one in which the abusing parent “ha[s] 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[.]” 

The evidence discussed above also supports the termination of petitioner’s parental 

rights. Petitioner complied with some services, but did not benefit from them. She also failed to 
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secure employment during the proceedings as required by her family case plan. She was unable 

to properly address emotional and anger issues. Based on this evidence, it is clear that there was 

no reasonable likelihood that petitioner could substantially correct the issues of abuse and 

neglect. Further, because visits did not go well due to petitioner’s failure to interact with the 

child and implement proper parenting skills, the termination of petitioner’s parental rights was in 

the child’s best interests. The termination of petitioner’s parental rights was also necessary in 

order to establish permanency for the child. Therefore, the circuit court did not err in terminating 

petitioner’s parental rights. 

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

June 14, 2018, dispositional order is hereby affirmed. 

Affirmed. 

ISSUED: November 19, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Elizabeth D. Walker 

Justice Tim Armstead 

Justice Evan H. Jenkins 

Justice Paul T. Farrell sitting by temporary assignment