STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In Re: E.D. & D.M. April 13, 2015 

RORY L. PERRY II, CLERK 

No. 14-1124 (Jackson County 13-JA-39 & 13-JA-40) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother M.C., by counsel Susan A. Settle, appeals the Circuit Court of Jackson 

County’s September 19, 2014, order terminating her parental rights to E.D. and D.M. The West 

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

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

(“guardian”), Erica Brannon Gunn, filed a response on behalf of the children supporting the 

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

did not successfully complete her improvement period, in holding a single hearing to address 

motions regarding her improvement period and termination of her parental rights, and in 

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. 

In April of 2013, petitioner was arrested for possession of materials consistent with the 

manufacture of methamphetamine and held at the South Central Regional Jail. At this time, D.M. 

resided with his father. Following petitioner’s arrest, E.D.’s grandmother sought and obtained 

custody of him through family court, which referred the abuse and neglect allegations to the 

Circuit Court of Jackson County. Thereafter, the circuit court directed the DHHR to investigate. 

In June of 2013, the DHHR filed an abuse and neglect petition alleging that petitioner’s 

substance abuse resulted in neglect. According to the petition, then-five-year-old E.D. was often 

unsupervised because of petitioner’s substance abuse, with neighbors reporting that he would 

wander alone outside during the day. The petition further alleged that E.D. was often truant. 

Upon filing the petition, the DHHR obtained legal and physical custody of E.D., while D.M. 

remained in his non-abusing father’s custody. 

In July of 2013, petitioner entered into a stipulated adjudication by admitting that her 

substance abuse negatively affected her ability to parent the children and caused them to be 

abused and neglected. Thereafter, petitioner was granted a post-adjudicatory improvement period 

that was later extended. The improvement period’s terms included the following requirements 

for petitioner: (1) complete a psychological and parental fitness evaluation and comply with the 

terms thereof; (2) complete a twenty-eight-day substance abuse treatment program and comply 

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with recommendations for further treatment; (3) comply with random drug testing; (4) attend at 

least three Alcoholics Anonymous/Narcotics Anonymous meetings per week; (5) attend and 

actively participate in individual therapy; (6) abstain from all alcohol and unprescribed drug use 

and refrain from misusing any prescribed medications; (7) ensure there were no drugs, alcohol, 

or other inappropriate things, people, or activities in the home and cease involvement with 

inappropriate relationships and activities; (8) obtain reliable transportation; (9) maintain contact 

with all service providers and her attorney; (10) comply with parenting services; (11) 

demonstrate a financial ability to care for the children; and (12) obtain clean, healthy, and 

appropriate housing. 

In June of 2014, the guardian filed a motion to suspend petitioner’s visitation with E.D. 

and later filed motions to revoke her improvement period and terminate her parental rights. 

These motions were based upon allegations that petitioner failed multiple drug screens, having 

tested positive for marijuana and Suboxone, and was facing revocation from the day report 

center where she received substance abuse treatment and submitted to drug screens. The DHHR 

filed a similar motion the next month. That same month, the circuit court held the first of several 

hearings on the motions to terminate that continued through August of 2014. The circuit court 

heard testimony regarding petitioner’s failed drug screens and her failure to complete substance 

abuse treatment. Jeanette Eastham, the case manager from the day report center, testified that 

petitioner did not fully participate in the treatment program, was combative during treatment, and 

bragged to others that she would not have to complete the program because her final court 

hearing was scheduled to occur prior to the end of the program. Ultimately, in September of 

2014, the circuit court entered a dispositional order finding that petitioner did not successfully 

complete her improvement period and terminated her parental rights. Petitioner appeals from the 

dispositional order. 

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 findings, the manner in which it held the dispositional hearing, or in 

its termination of petitioner’s parental rights. 

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To begin, the Court finds no error in the circuit court’s finding that petitioner did not 

successfully complete her improvement period. While petitioner argues that the circuit court’s 

finding constitutes error because she substantially completed the majority of the numerous 

requirements imposed, the Court disagrees. Petitioner’s argument on this issue minimizes her 

continued drug abuse during the pendency of the proceedings below by arguing that the only 

objective factor in finding that she failed to successfully complete her improvement period were 

her failed drug screens. Contrary to petitioner’s argument that these failed screens were isolated 

and not representative of her overall compliance with the terms of her improvement period, the 

Court finds that this evidence appropriately supported the circuit court’s finding. 

The record is clear that the underlying conditions of abuse and neglect in the home were 

caused by petitioner’s drug abuse. We have generally held that an improvement period 

constitutes an opportunity for a parent to modify the behavior underlying the conditions of abuse 

or neglect as alleged in a petition. See In re Emily, 208 W.Va. 325, 334, 540 S.E.2d 542, 551 

(2000). Moreover, we have previously directed that 

“[a]t the conclusion of the improvement period, the court shall review the 

performance of the parents in attempting to attain the goals of the improvement 

period and shall, in the court’s discretion, determine whether the conditions of the 

improvement period have been satisfied and whether sufficient improvement has 

been made in the context of all the circumstances of the case to justify the return 

of the child[ren].” Syllabus Point 6, In the Interest of Carlita B., 185 W.Va. 613, 

408 S.E.2d 365 (1991). 

Syl. Pt. 4, In re Faith C., 226 W.Va. 188, 699 S.E.2d 730 (2010). Contrary to petitioner’s 

argument that service providers testified that she engaged in services, the circuit court heard 

testimony that petitioner did not fully participate in the substance abuse treatment program, was 

combative during treatment, and bragged to others that she would not have to fully complete the 

program. Based upon this evidence and our prior holdings, it is clear that the circuit court did not 

err in finding that petitioner failed to successfully complete her improvement period because the 

main condition of abuse and neglect, her drug abuse, persisted. 

Next, the Court finds no error in the manner in which the circuit court conducted the 

dispositional hearing. Petitioner specifically argues that it was error for the circuit court to hold 

combined hearings on the guardian’s and DHHR’s motions and disposition. While petitioner 

argues that these combined hearings deprived her of notice that the circuit court was proceeding 

to disposition or that the DHHR sought to terminate her parental rights to both children, we find 

no error in this regard. Rule 31 of the West Virginia Rules of Procedure for Child Abuse and 

Neglect Proceedings states that “[n]otice of the date, time, and place of the dispositional hearing 

shall be given to all parties, their counsel, and persons entitled to notice and the right to be 

heard.” The record is clear that both the DHHR and the guardian noticed petitioner of their intent 

to seek termination of her parental rights to both children. Moreover, the circuit court held no 

less than four hearings on the motions to revoke petitioner’s improvement period and to 

terminate her parental rights, all of which petitioner and her counsel attended. 

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While petitioner argues that the manner in which these hearings were combined unfairly 

prejudiced her ability to prepare and present evidence, the Court disagrees. The circuit court 

specifically found that during these hearings “[a]ll parties were afforded the opportunity to 

present evidence and testimony with respect to their relative positions on the motions to revoke 

the improvement period[] . . . and to terminate the parental rights of [petitioner].” Further, 

petitioner provides no additional evidence or how such further evidence would have impacted 

the circuit court’s decision. Our review of the record shows that the circuit court properly 

conducted multiple hearings on the issues of petitioner’s improvement period and the ultimate 

disposition in regard to her parental rights. Further, it is clear that the same evidence supported 

the circuit court’s decision with respect to both issues, and petitioner was free to present 

evidence and argue in support of her proposed disposition. For these reasons, we find no error. 

Finally, the Court finds no error in regard to the circuit court terminating petitioner’s 

parental rights to both children. While petitioner argues that termination was inappropriate 

because it was not the least restrictive alternative, the Court finds 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. Pursuant to West Virginia Code § 49-6-5(b)(3), a situation in 

which there is no reasonable likelihood that the conditions of abuse or neglect can be 

substantially corrected includes one in which 

[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, as evidenced by the continuation or insubstantial 

diminution of conditions which threatened the health, welfare or life of the child. 

The circuit court specifically made this finding in regard to petitioner, based upon the evidence 

above related to her non-compliance with the terms of her improvement period and her failure to 

correct the conditions of abuse and neglect created by her ongoing drug abuse. 

Contrary to petitioner’s argument that no evidence was submitted to establish why 

termination of her parental rights was in the children’s best interests, the circuit court heard 

substantial evidence in this regard, including the fact that petitioner could not properly parent the 

children due to her drug abuse. Further, while petitioner argues that termination was not the least 

restrictive alternative in regard to D.M. because the child resided with his father, the Court finds 

no merit to this argument. We have previously held that West Virginia Code § 49-6-5 “permits 

the termination of one parent’s parental rights while leaving the rights of the nonabusing parent 

completely intact, if the circumstances so warrant.” In re Emily, 208 W.Va. 325, 344, 540 S.E.2d 

542, 561 (2000). Further, “simply because one parent has been found to be a fit and proper 

caretaker for [the] child does not automatically entitle the child’s other parent to retain his/her 

parental rights if his/her conduct has endangered the child and such conditions of abuse and/or 

neglect are not expected to improve.” Id. 

In the instant case, the circumstances clearly warranted terminating petitioner’s parental 

rights to both children. As noted above, the circuit court specifically found there was no 

reasonable likelihood that petitioner could substantially correct the conditions of abuse and 

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neglect. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate 

parental rights upon this finding. We have also held as follows: 

“Termination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, W. Va.Code [§] 

49–6–5 . . . may be employed without the use of intervening less restrictive 

alternatives when it is found that there is no reasonable likelihood under W. 

Va.Code [§] 49–6–5(b) . . . that conditions of neglect or abuse can be substantially 

corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980). 

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Because the circuit court 

properly found that there was no reasonable likelihood that petitioner could substantially correct 

the conditions of abuse and neglect, termination of her parental rights to both children was not 

error. 

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

September 19, 2014, order is hereby affirmed. 

Affirmed. 

ISSUED: April 13, 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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