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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re W.B.

No. 21-0720 (Fayette County 20-JA-178)

MEMORANDUM DECISION

Petitioner Mother E.B., by counsel Nancy S. Fraley, appeals the Circuit Court of Fayette

County’s August 31, 2021, order terminating her parental, custodial, and guardianship rights to 

W.B.

1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel 

Patrick Morrisey and Mindy M. Parsley, filed a response in support of the circuit court’s order. 

The guardian ad litem, Christopher S. Moorehead, filed a response on behalf of the children in 

support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in 

denying her motion for a post-adjudicatory improvement period and in terminating her parental, 

custodial, and guardianship 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.

Prior to the initiation of the proceedings giving rise to this appeal, petitioner was involved 

in an abuse and neglect proceeding in regard to several older children. This earlier proceeding 

began in February of 2019, when the DHHR filed a petition alleging inappropriate physical 

discipline; failure to care for the children’s basic hygiene; failure to provide the children with 

appropriate clothing, including winter coats; failure to provide the children with sufficient food; 

and domestic violence. When Child Protective Services (“CPS”) workers investigated the home, 

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

April 14, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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they had to be accompanied by law enforcement because of the older children’s father’s

aggressive behavior. The CPS investigation revealed a filthy home with little food and unsafe 

conditions. When the DHHR took emergency custody of the children, petitioner stated that she 

had no clothing to send for the children. Following the children’s removal, one of them disclosed 

that that father showed him pornographic images. The petition in the prior matter also alleged an 

extensive history of CPS involvement that began in 2010, including an ongoing CPS 

investigation into allegations that the father sexually abused one of the children. There were also

several referrals for drug use in the home, although these were unsubstantiated. Finally, the 

DHHR alleged that petitioner failed to protect the children from domestic violence and excessive 

corporal punishment and neglected the children by failing to provide them with food, clean and 

appropriate clothing, and suitable housing. 

Petitioner later stipulated to domestic violence in the home and was granted an 

improvement period. Because of additional information uncovered regarding the father’s sexual 

abuse of the children, petitioner was prohibited from having any contact with the father during 

her improvement period. However, it was later discovered that petitioner was violating this 

order, in addition to talking about the confidential case over social media. Even more troubling, 

petitioner’s comments indicated that petitioner believed neither she nor the father had done 

anything wrong and that she “struggle[d] to grasp why the children were removed from her 

care.” Ultimately, petitioner voluntarily relinquished her parental rights to the children at a 

hearing in August of 2020. At that time, petitioner was pregnant with W.B.

Four months later, the DHHR filed the petition giving rise to the matter currently on 

appeal. According to a petition filed in December of 2020, the DHHR alleged that petitioner

gave birth to W.B. that same month. The DHHR further alleged that law enforcement was 

continuing its investigation into the older children’s father and his sexual abuse of those children. 

The petition alleged that law enforcement informed the DHHR that petitioner was “allegedly

complicit in the sexual assaults of [the father] due to being aware on multiple occasions what 

was occurring with her children and failing to report [the father] and ensure the safety of her 

children.” The DHHR also alleged that the maternal grandmother disclosed that, prior to W.B.’s 

birth, petitioner was “arranging plans to leave the state . . . to deliver [W.B.] in hopes of avoiding 

CPS intervention.” The maternal grandmother also indicated that petitioner was residing with the 

father of her older children in a camper. Accordingly, the DHHR alleged that petitioner abused 

and neglected W.B. because of her history of domestic violence, which had not been corrected,

and her past history of failing to protect her children from sexual abuse. 

Following the petition’s filing, petitioner failed to appear for the preliminary hearing, 

although she was represented by counsel. Petitioner’s whereabouts at the time of the hearing 

were unknown. Thereafter, petitioner filed a written stipulation in which she admitted to abusing 

and/or neglecting W.B. At an adjudicatory hearing in March of 2021, the court accepted the 

stipulation and adjudicated petitioner of abusing and neglecting the child. 

Later in March of 2021, the parties convened a multidisciplinary team (“MDT”) meeting, 

which petitioner did not attend. According to the MDT report, petitioner admitted that after 

W.B.’s removal “she went off the rails and used [h]eroin.” Petitioner’s counsel informed the 

MDT that petitioner was in a short-term substance abuse treatment program and would then 
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transition into long-term treatment. The following month, petitioner filed a motion for a postadjudicatory improvement period in which she set forth her efforts in substance abuse treatment

and indicated that she would comply with a broad range of remedial services. During a hearing 

in April of 2021, petitioner’s counsel indicated that petitioner admitted to abusing heroin after

she relinquished her parental rights to her older children in the prior proceeding. The record 

shows that petitioner abused heroin while pregnant with W.B., although she claimed that she 

ceased her substance abuse when she learned she was pregnant, and records from her admission 

to give birth to the child did not reflect drugs in her system. According to counsel, petitioner 

admitted that she “went on a binge and started using drugs and got addicted to heroin.” After the 

DHHR took custody of W.B., petitioner relapsed before recognizing that she needed substance 

abuse treatment. During that hearing, the court stated that petitioner “has somewhat of a heavy 

load to pull to show the [c]ourt that she is likely to successfully complete an [i]mprovement 

[p]eriod.” The following month, an MDT report indicated that petitioner continued in her 

substance abuse treatment.

In May of 2021, the court held a hearing on petitioner’s motion for an improvement 

period. At the hearing, petitioner stressed her ongoing efforts in substance abuse treatment and 

further indicated that she finally believed that her older children’s father sexually abused those 

children. Petitioner indicated that she would be willing to cooperate with law enforcement in its 

investigation into the father’s sexual abuse of the older children. Both the DHHR and the 

guardian objected to the motion. The guardian specifically pointed to petitioner’s failure during 

an improvement period in the prior proceedings, arguing that she was ordered to have no contact 

with the older children’s father but “she deceived everybody and did it anyway in violation” of 

the court’s order by choosing to have continued contact with the individual alleged to have 

sexually abused her older children. The guardian elaborated that the parties “thought [petitioner] 

was staying away until we started catching her and could have proved it at a [d]isposition 

[h]earing that she was actually having contact with [the father]. And that’s when she decided to 

relinquish.” The guardian further argued that petitioner was in a considerably worse position than 

in the prior proceedings, as she not only failed to remedy the conditions of abuse and neglect at 

issue from the prior matter but had also developed a substance abuse problem in the interim. 

During the hearing, the court questioned petitioner’s ability to be successful in the improvement 

period, given that she was unable to resolve the issues from the prior proceedings despite having 

been granted an improvement period. The court found that petitioner previously “had an 

opportunity to keep her children with her by getting away from [the father], having lifestyle

changes, following an [i]mprovement [p]eriod with those four children. And yet when it came 

right down to it, she gave them up.” The court noted petitioner’s testimony about having 

accepted that her older children’s father abused them, but went on to find that petitioner “has not 

convinced the [c]ourt that she has turned over a new leaf in life and wants to be a good mother.”

The court ultimately denied the motion, finding that petitioner was “unlikely to successfully 

participate in an improvement period.”

In a report from a June of 2021 MDT hearing, the DHHR noted that petitioner’s counsel 

did not know her whereabouts, and that one of petitioner’s family members indicated that 

petitioner had relapsed on drugs and again submitted to a short-term substance abuse treatment 

program. Both the DHHR and the guardian recommended termination of petitioner’s parental 
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rights, arguing that, since the prior proceedings, “[t]hings have gotten worse because now 

[petitioner] also has a substance abuse problem.”

The court originally convened the dispositional hearing on July 6, 2021, but petitioner 

failed to appear. On July 30, 2021, the court held the final dispositional hearing. According to the 

appendix, the court made several documents, including MDT reports and the report of the 

guardian, part of the record. The court also took judicial notice of the entire casefile from

petitioner’s prior abuse and neglect proceedings. The court then heard testimony from a CPS 

worker and petitioner. Based on the evidence, the court found that petitioner was adjudicated for 

domestic violence in the prior case and then proceeded to begin abusing substances prior to the 

initiation of the current proceedings. The court also noted that petitioner completed only “two 

short-term stays at different rehabilitation centers” and had “very limited contact” with the 

DHHR. Accordingly, the court found that petitioner “has demonstrated by her conduct that she 

has done nothing to remedy the conditions of abuse and neglect.” The court found that petitioner 

“has a continued blind spot” for the father of her older children and that petitioner’s older 

children expressed fears to the DHHR that W.B. would be subjected to the same abuse they 

endured if returned to petitioner’s custody. Accordingly, the court found that there was no 

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

neglect in the near future and that the child’s welfare required termination of petitioner’s 

parental, custodial, and guardianship rights. As such, the court terminated those rights.

2 It is from 

the dispositional 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). 

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The child’s unknown father’s parental rights were also terminated. The permanency plan 

for the child is adoption in the current foster home. 
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On appeal, petitioner first argues that it was error to deny her motion for a postadjudicatory improvement period “given that no services were offered to the [p]etitioner 

following her stipulated adjudication such that she was denied a meaningful opportunity to 

establish clear and convincing evidence she would participate” in such an improvement period. 

This argument, however, misstates the law governing the granting of improvement periods and

conflates the DHHR’s statutory responsibility to make reasonable efforts to preserve a family 

with the granting of an improvement period. 

Petitioner is correct that improvement periods are governed by West Virginia Code § 49-

4-610, which sets forth that, in order to obtain one, a parent must “demonstrate[], by clear and 

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

What this statute does not require, however, is that the DHHR provide any services prior to the 

filing of a motion for an improvement period so that a parent may demonstrate compliance with 

services in order to bolster the evidence in support of their motion. On appeal, petitioner cites to 

no law or other authority that would require the DHHR to provide services so that she could 

satisfy her burden for obtaining an improvement period. As such, she is entitled to no relief in 

this regard.

Petitioner further argues that the circuit court applied an inappropriate standard in ruling

on her motion. Although she acknowledges that the circuit court’s order “did apply the proper 

burden,” she argues that the transcript of the hearing demonstrates that the circuit court 

erroneously held her to a standard of showing that she would “successfully complete an 

improvement period.” Petitioner’s argument fails for two reasons. First, we have previously 

explained that “where a circuit court’s written order conflicts with its oral statement, the written 

order controls.” Legg v. Felinton, 219 W. Va. 478, 484, 637 S.E.2d 576, 582 (2006). Given that 

petitioner concedes that the circuit court’s order applied the appropriate standard, she cannot be 

entitled to relief. Second, petitioner ignores the fact that we have explained that circuit courts

have the discretion to deny an improvement period when no improvement is likely. In re Tonjia 

M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002). As such, the circuit court did not err in 

considering whether petitioner could successfully complete an improvement period. 

Even more importantly, the record overwhelmingly supports the circuit court’s denial of 

petitioner’s motion. As set forth above, petitioner voluntarily relinquished her parental rights to 

four older children just four months prior to the initiation of the current proceedings while 

pregnant with W.B. The record further shows that petitioner not only failed to remedy the 

conditions from the prior proceedings, but that she also became addicted to heroin in the interim. 

As several witnesses and parties pointed out below, petitioner was in a much worse position than 

she was when she voluntarily relinquished her parental rights to those older children. While it is 

commendable that petitioner participated in substance abuse treatment, the record nonetheless

shows that she relapsed after her first short-term treatment program during these proceedings and 

had to re-enter a similar program. Simply put, petitioner’s participation in substance abuse 

treatment and other services was insufficient to establish that she was likely to fully participate in 

an improvement period, given that she had just unsuccessfully participated in an improvement 

period a matter of months before in her prior proceeding. Accordingly, we find no error in the 

circuit court’s denial of petitioner’s motion. 
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Finally, petitioner argues that the circuit court erred in terminating her parental, custodial, 

and guardianship rights to the child because the DHHR was not required to seek termination of 

her parental rights under West Virginia Code § 49-4-605(a). Petitioner is correct that none of the 

circumstances set forth in that statute3 are present in the current matter. What petitioner fails to 

recognize, however, is that this statute simply imposes an affirmative duty on the DHHR to seek 

termination in these specific circumstances. Importantly, the statute does not preclude the DHHR 

from seeking termination of parental rights absent one or more of these conditions. Accordingly, 

her reliance on this statute is misplaced. Petitioner also argues that the circuit court erred in 

finding that the DHHR made reasonable efforts to preserve the family, but this argument is 

similarly misplaced and totally ignores petitioner’s refusal to participate in the proceedings. 

Under West Code §§ 49-4-604(c)(6)(C)(iii) and (iv), the court’s dispositional order must 

include findings as to whether the DHHR made reasonable efforts to preserve and reunify the 

family. Petitioner argues that the court’s finding that the DHHR made such reasonable efforts is 

not supported by the record, but we do not agree. While it is true that, other than one drug screen, 

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West Virginia Code § 49-4-605(a) provides that

[e]xcept as provided in § 49-4-605(b) of this code, the department shall file or 

join in a petition or otherwise seek a ruling in any pending proceeding to 

terminate parental rights:

(1) If a child has been in foster care for 15 of the most recent 22 months as 

determined by the earlier of the date of the first judicial finding that the child is 

subjected to abuse or neglect or the date which is 60 days after the child is 

removed from the home;

(2) If a court has determined the child is abandoned, tortured, sexually abused, or 

chronically abused;

(3) If a court has determined the parent has committed murder or voluntary 

manslaughter of another of his or her children, another child in the household, or 

the other parent of his or her children; has attempted or conspired to commit 

murder or voluntary manslaughter or has been an accessory before or after the 

fact of either crime; has committed unlawful or malicious wounding resulting in 

serious bodily injury to the child or to another of his or her children, another child 

in the household or to the other parent of his or her children; has committed 

sexual assault or sexual abuse of the child, the child’s other parent, guardian or 

custodian, another child of the parent or any other child residing in the same 

household or under the temporary or permanent custody of the parent; or the 

parental rights of the parent to another child have been terminated involuntarily; 

or

(4) If a parent whose child has been removed from the parent’s care, custody, and 

control by an order of removal voluntarily fails to have contact or attempt to have 

contact with the child for a period of 18 consecutive months: Provided, That 

failure to have, or attempt to have, contact due to being incarcerated, being in a 

medical or drug treatment or recovery facility, or being on active military duty 

shall not be considered voluntary behavior.
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petitioner did not participate in services in this matter, it was not due to a lack of reasonable 

efforts on the part of the DHHR. The record shows that the DHHR referred petitioner for 

services, including parenting and adult life skills education. According to a DHHR employee, the 

contact information petitioner gave the DHHR was passed along to a service provider, yet the 

witness indicated that the provider told her on numerous occasions that the provider was unable 

to contact petitioner. The witness also indicated that she “had no contact with [petitioner] other 

than when she appears for court.” Compounding the issue is the fact that even petitioner’s 

attendance in court was sporadic, as the record shows that she failed to appear for multiple 

hearings and MDT meetings, with even her counsel being unaware of her whereabouts at times.

Further, the DHHR was unable to communicate with any of petitioner’s rehabilitation facilities

because petitioner failed to execute the necessary releases. While it is true that petitioner testified 

that no provider ever tried to contact her, the circuit court heard this evidence and resolved it in 

the DHHR’s favor. This is a credibility determination that we decline to disturb on appeal. 

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.”). Given the substantial evidence demonstrating petitioner’s refusal to remain in 

contact with the DHHR or even attend all required hearings and meetings, it is clear that the 

circuit court did not err in finding that the DHHR made reasonable efforts to preserve the family. 

Petitioner was simply not receptive to them. 

Ultimately, the court found that there was no reasonable likelihood that petitioner could 

substantially correct the conditions of abuse and neglect in the near future and that termination of 

her parental rights was necessary for the child’s welfare, the two findings necessary for 

termination of parental, custodial, and guardianship rights under West Virginia Code § 49-4-

604(c)(6). Petitioner does not challenge these findings on appeal. Further, we note that

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

statutory provision covering the disposition of neglected children, [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 [West Virginia Code § 49-4-604(d)] . . . 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). As set forth above, the court 

had ample evidence upon which to base this finding. Therefore, we find no error in the circuit 

court’s termination of petitioner’s parental rights. 

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

August 31, 2021, order is hereby affirmed.

Affirmed.

ISSUED: April 14, 2022
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CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice Alan D. Moats sitting by temporary assignment