STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In re: A.B. and S.B. January 8, 2018 

EDYTHE NASH GAISER, CLERK 

No. 17-0786 SUPREME COURT OF APPEALS (Ohio County 15-CJA-83 & 17-CJA-3) OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother D.B., by counsel John M. Jurco, appeals the Circuit Court of Ohio 

County’s May 1, 2017, order terminating her parental rights to A.B. and S.B.1 The West Virginia 

Department of Health and Human Resources (“DHHR”), by counsel Chaelyn W. Casteel, filed a 

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

Moses, filed a response on behalf of the children in support of the circuit court’s order. Petitioner 

filed a reply. On appeal, petitioner argues that the circuit court erred in failing to grant her a postadjudicatory improvement period 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 July of 2015, the DHHR filed an abuse and neglect petition alleging abuse and neglect 

by petitioner toward her infant daughter, A.B. The petition alleged that A.B. was a drug-exposed 

infant; that petitioner and A.B. tested positive for illegal substances; that A.B. exhibited signs of 

drug withdrawal at the hospital; and that petitioner had a history of substance abuse. In August of 

2015, the circuit court held an adjudicatory hearing wherein petitioner admitted that A.B. was a 

drug-exposed infant and that she had a substance abuse problem. The circuit court adjudicated 

petitioner as an abusing parent. In October of 2015, petitioner was granted a post-adjudicatory 

improvement period. 

In December of 2015 and January of 2016, review hearings were held and the DHHR 

advised the circuit court that petitioner was not making satisfactory progress in her improvement 

period. Also in January of 2016, the DHHR filed a motion to terminate petitioner’s postadjudicatory improvement period alleging petitioner failed to fully participate in treatment and 

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). 

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drug screens, and continued to use drugs. In February of 2016, the circuit court granted the 

motion and ordered petitioner’s post-adjudicatory improvement period be terminated. In April of 

2016, the circuit court held a dispositional hearing where it found petitioner was “unwilling or 

unable to provide adequately for the child’s needs” and committed the child temporarily to the 

care custody, and control of the DHHR, pursuant to West Virginia Code § 49-4-604(b)(5), and 

continued the child in her current foster care placement. 

In January of 2017, the DHHR filed an amended petition against petitioner alleging 

petitioner and her newborn daughter, S.B., both tested positive for cocaine at the hospital, 

petitioner reported daily use of cocaine prior to S.B.’s birth, and petitioner’s drug addiction 

posed a significant threat to her children. Petitioner waived her preliminary hearing on the 

amended petition. In March of 2017, the circuit court held an adjudicatory hearing at which 

petitioner stipulated to the allegations set forth in the amended petition and was adjudicated as an 

abusing parent. Petitioner moved for a post-adjudicatory improvement period. 

In April of 2017, the circuit court held a hearing on petitioner’s motion for a postadjudicatory improvement period. Petitioner testified that she had a history of drug addiction. 

Petitioner admitted to using cocaine during her pregnancy with S.B., as recently as the night 

before she gave birth. She testified that she was suspended from a drug treatment program 

because of her use of alcohol. She also admitted that her visitations with S.B. were stopped 

because of a positive sweat patch drug test for cocaine, although she maintained that she was not 

using cocaine at that time. The DHHR presented testimony that petitioner continuously tested 

positive for alcohol and had one positive drug screen for cocaine. The DHHR also presented 

testimony that petitioner tested positive for alcohol and fell asleep for approximately thirty 

minutes during a visit with S.B. on the same day. The circuit court found that petitioner failed to 

demonstrate by clear and convincing evidence that she would be likely to fully participate in a 

post-adjudicatory improvement period pursuant to West Virginia Code § 49-4-610(2). The 

circuit court also found that petitioner failed to successfully complete the post-adjudicatory 

improvement period in the matter involving A.B.; admitted she was an addict; and needed 

inpatient drug treatment. 

Also, in April of 2017, the circuit court held a dispositional hearing regarding A.B. and 

S.B. The circuit court took judicial notice of prior testimony and petitioner admitted that she 

tested positive on drug screens, but insisted that she was not using cocaine. Petitioner also 

admitted that she had recently used alcohol. The circuit court found no reasonable likelihood that 

petitioner could correct the conditions of abuse and neglect in the near future and that it was in 

the best interests of the children for petitioner’s parental rights to be terminated. Ultimately, the 

circuit court terminated petitioner’s parental rights to the children in its May 1, 2017, order.2 It is 

from the dispositional order that petitioner appeals. 

The Court has previously established the following standard of review: 

2

In addition to the termination of petitioner’s parental rights, J.K., the father of A.B., 

voluntarily relinquished his parental rights. A.B. is in foster care and the permanency plan is 

adoption in that home. J.T., the father of S.B., is a non-abusing parent. S.B. is placed with her 

father. 

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“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 proceedings below. 

First, petitioner argues that the circuit court erred in denying her motion for a postadjudicatory improvement period. Petitioner asserts that she was honest about her addiction and 

that she would work to improve. She also asserts that she “has made some progress in 

transferring her cocaine addiction to alcohol addiction,” and that “the transference from cocaine 

to alcohol is a small step in the right direction.” Finally, petitioner argues that she maintained 

contact with DHHR caseworkers and that the caseworkers testified that they had seen some 

improvement in petitioner since the matter involving A.B. We do not find any of petitioner’s 

arguments compelling. 

West Virginia Code § 49-4-610(2)(B) provides that in order to be granted a postadjudicatory improvement period, the parent must “demonstrate[], by clear and convincing 

evidence, that the [parent] is likely to fully participate in the improvement period[.]” 

Additionally, under West Virginia Code § 49-4-610(2)(D), if a parent has experienced a 

substantial change in circumstances since the initial improvement period, the parent “shall 

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

the improvement period.” 

Here, the record on appeal shows that petitioner was not compliant with her first postadjudicatory improvement period in 2015. Throughout her first improvement period, petitioner 

continued to abuse drugs, failed to comply with treatment, and failed to attend drug screens. 

Additionally, petitioner continued to use drugs throughout her pregnancy with S.B. Petitioner 

and S.B. both tested positive for cocaine at the hospital upon S.B.’s birth. Further, petitioner 

failed to complete an outpatient drug treatment program due to her use of alcohol, which she 

admitted she continued to abuse. Based on this evidence, petitioner failed to demonstrate that she 

underwent a substantial change in circumstances or that she would be likely to fully participate 

in a second post-adjudicatory improvement period. Therefore, the circuit court did not err in 

denying her motion for a post-adjudicatory improvement period and she is entitled to no relief in 

this regard. 

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Petitioner also argues that the circuit court erred in terminating her parental rights. 

Petitioner argues that she has made improvements in regards to her addiction; is able to maintain 

employment; and that she has demonstrated a capacity to overcome her addiction. 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 no reasonable likelihood that the 

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

. ha[s] not responded to or followed through with a reasonable family case plan or other 

rehabilitative efforts[.]” 

As discussed above, petitioner has a history of drug abuse, continued to abuse drugs 

throughout her first post-adjudicatory improvement period and throughout her pregnancy with 

S.B. Petitioner failed to complete any drug treatment program during the proceedings. Although 

petitioner asserts that she stopped using cocaine, she admitted to using alcohol regularly, and had 

several positive screens for alcohol. Based on this evidence, the circuit court found no reasonable 

likelihood that petitioner could substantially correct the conditions of abuse and neglect in the 

near future and that the best interests of the children require termination of petitioner’s parental 

rights. As previously stated, pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are 

directed to terminate parental rights upon these findings. Further, we have previously held that 

“[t]ermination of parental rights, the most drastic remedy under the 

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

49-6-5 [now West Virginia Code § 49-4-604] . . . 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) [now West Virginia Code 

§ 49-4-604(c)] . . . 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). For these reasons, we find no 

error in the circuit court’s termination of petitioner’s parental rights and its May 1, 2017, order is 

hereby affirmed. 

Affirmed. 

ISSUED: January 8, 2018 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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