STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

In Re: S.M. & C.P. April 13, 2015 

RORY L. PERRY II, CLERK 

No. 14-1126 (Mercer County 12-JAT-468 & 13-JAT-459) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother M.H., by counsel Gerald R. Linkous, appeals the Circuit Court of 

Mercer County’s October 7, 2014, order terminating her parental rights to S.M. and C.P. The 

West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, 

filed its response in support of the circuit court’s order and a supplemental appendix. The 

guardian ad litem, John Earl Williams Jr., filed a response on behalf of the children supporting 

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

motion for a dispositional improvement period. 

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 December of 2012, the DHHR filed an abuse and neglect petition against the parents 

alleging that S.M. missed a total of twenty-one days of school during the 2012-2013 school year. 

By order dated February 22, 2013, the circuit court granted petitioner a pre-adjudicatory 

improvement period despite petitioner’s failure to attend the preliminary hearing. In May of 

2013, the circuit court held a review hearing and found that S.M. was missing one out of every 

three school days. The circuit court further found that petitioner had been arrested on a charge of 

burglary and that her improvement period was not successful. After the hearing, petitioner 

submitted to a drug screen and tested positive for cannabinoids and hydromorphone. Sometime 

after this hearing, petitioner became a fugitive. 

In October of 2013, the DHHR filed an amended petition that included petitioner’s other 

child, C.P., and alleged that C.P. lived with his paternal aunt. The amended petition further 

alleged that petitioner’s parenting skills were impaired by her use of alcohol or other controlled 

substances to a degree that posed a risk to the children. The petition also contained information 

pertaining to petitioner’s arrest for burglary in May of 2013, and a subsequent capias issued for 

her in Tazewell County, Virginia, in June of 2013. According to the amended petition, 

petitioner’s whereabouts were unknown. Following a hearing on the amended petition, the circuit 

court placed S.M. in the DHHR’s custody and left C.P. with his aunt. 

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In December of 2013, the circuit court held an adjudicatory hearing. Petitioner did not 

attend due to her incarceration. Ultimately, the circuit court found that petitioner neglected the 

children. In September of 2014, the circuit court held a dispositional hearing. Petitioner, who had 

recently been released from incarceration, moved for a dispositional improvement period. 

Additionally, the DHHR presented testimony that, following her positive drug screen in May of 

2013, petitioner “disappeared” after violating her probation and went into hiding. Testimony 

established that petitioner’s whereabouts were unknown to the DHHR for approximately one 

year. Petitioner also admitted to the circuit court that if she had not been apprehended by law 

enforcement, she would still be in hiding. The following month, the circuit court entered a 

dispositional order, denied petitioner’s request for a dispositional 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 denial of petitioner’s motion for a dispositional improvement 

period. 

Pursuant to West Virginia Code § 49-6-12(c)(4), a circuit court may grant a dispositional 

improvement period after a parent has previously been awarded an improvement period upon a 

showing that the parent “has experienced a substantial change in circumstances[, and that] due to 

that change in circumstances, the [parent] is likely to fully participate in the improvement 

period.” While petitioner argues that she satisfied these burdens, the Court disagrees. Petitioner 

cites to her own testimony below, wherein she stated that she experienced a substantial change in 

circumstances because she ceased using drugs during her incarceration. Petitioner further 

testified that because her parole was dependent on her remaining drug free, she would remain as 

such. 

However, it is important to note that, at the time petitioner was granted a pre-adjudicatory 

improvement period, the only allegations against her were for S.M.’s truancy. After obtaining a 

pre-adjudicatory improvement period, petitioner not only continued to allow the child to be 

truant, but she engaged in abuse of illegal substances, was arrested, and eventually became a 

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fugitive. Accordingly, the circuit court found that petitioner abandoned her children and that she 

would have remained a fugitive if not for her capture. Further, in denying petitioner’s motion, the 

circuit court found that petitioner “knew her parenting ability was under [c]ourt scrutiny when 

she fled from justice [and] put her needs before the needs of the children[.]” This evidence not 

only establishes petitioner’s unwillingness to comply with services, but further evidences a 

diminution in the conditions of neglect that necessitated the petition’s filing. Simply put, the 

Court does not agree that because petitioner established she was being regularly drug tested as a 

condition of parole, that her substance abuse issues were resolved or that she satisfied her burden 

of establishing she was likely to fully participate in a dispositional improvement period. As such, 

it is clear that the circuit court did not err in denying petitioner’s motion for a dispositional 

improvement period, as petitioner could not establish either a substantial change in 

circumstances or that she was likely to fully participate in the improvement period. 

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

October 7, 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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