1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re K.C. and A.C.

No. 18-1008 (Hampshire County 18-JA-7 and 18-JA-8)

MEMORANDUM DECISION

Petitioner Mother G.C., by counsel David C. Fuellhart, III, appeals the Circuit Court of 

Hampshire County’s September 9, 2018, order terminating her parental rights to K.C. and A.C.

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

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

(“guardian”), Joyce E. Stewart, 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 failing to transport her to 

the dispositional hearing, denying her motion for an improvement period, terminating her parental 

rights, and denying her post-termination visitation with the children.

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.

The DHHR filed an abuse and neglect petition that alleged police served a warrant at

petitioner’s home and observed “feces throughout the house.” Despite the fact that petitioner was 

on probation for animal cruelty and prohibited from possessing animals, police found “rabbits 

being stored in a closet and chickens . . . being kept in a bath tub.” According to a Child Protective 

Services (“CPS”) worker, the home had “a strong odor of ammonia, animal feces, and animal 

urine” which caused the worker difficulty breathing. As a result, petitioner was charged criminally 

with being a person prohibited from possessing an animal and animal cruelty. Police also found 

the children home from school, both exhibiting signs of lice and one with a virus. In fact, the 

 

1Consistent 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 19, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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DHHR alleged that one child’s hair was so matted that CPS was “unable to get a brush through it 

to treat the lice.” The petition further alleged that petitioner had a history of child abuse and/or 

neglect, including a criminal conviction of child neglect creating risk of bodily injury and a prior 

removal of the children from the home. Specifically, a prior abuse and neglect proceeding 

involving petitioner and the children concerned the same issues present in this matter. In that prior 

case, law enforcement removed twenty-nine animals from the residence, which was subsequently 

condemned, and found the children “hiding in the attic in their underwear.” Later that month, the 

DHHR filed an amended petition related to other adult respondents. Petitioner waived her right to 

a preliminary hearing. 

Beginning in March of 2018, the circuit court held a series of adjudicatory hearings. After 

the circuit court took extensive evidence in support of adjudication, petitioner ultimately entered 

a stipulation in June of 2018 whereby she admitted to a prior CPS history, including a prior finding 

of neglect; that she subjected the children to unsanitary conditions in the home; that she was a 

person prohibited from possessing animals, although she was in possession of animals at the time 

the petition was filed; that she was previously convicted criminally of child neglect creating risk 

of injury; that she had a prior criminal history, despite having denied any such history to CPS; and 

that she had a history of mental health issues. Moreover, the circuit court made findings related to 

the prior abuse and neglect proceeding involving petitioner that was based on the uninhabitable 

conditions of the home due to “a multitude of animals,” the same conditions underlying the current 

proceedings. According to the circuit court, in the prior proceeding the children were reunited with 

petitioner in December of 2016, only to be removed a little over a year later upon the initiation of 

the current matter. As such, petitioner was adjudicated as having neglected the children herein. 

The circuit court held dispositional hearings in July of 2018 and August of 2018. Petitioner 

attended the first hearing but did not attend the second due to her incarceration.2 She was 

represented by counsel throughout both hearings. According to the record, the circuit court heard 

evidence related to petitioner’s incarceration for a period of one to five years “with an unknown 

release date.” Petitioner also moved for a post-dispositional improvement period. Based upon the 

evidence, the circuit court found that petitioner “attempted to thwart any effort by the [DHHR] to 

assist her minor children” because, when the children were removed, she told them “that the 

[DHHR] was here to hurt you, not help you.” In denying petitioner’s motion for an improvement 

period, the circuit court found that it would be futile given the fact that she was “previously 

provided services . . . for nearly identical allegations.” Ultimately, the circuit court terminated 

 

2Petitioner was held in a regional jail throughout the pendency of this matter and the circuit 

court secured her transfer to several hearings. However, at the first dispositional hearing in July of 

2018, petitioner assured the circuit court that she would be released prior to the continued 

dispositional hearing. When the parties convened for the continued hearing in August of 2018, the 

circuit court was informed, for the first time, that petitioner had not only not been released, but 

had been transferred to Lakin Correctional Center.
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petitioner’s parental rights to the children and denied her post-termination visitation. It is from the 

dispositional order that petitioner appeals.3 

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 review, the Court finds no 

error in the proceedings below.

At the outset, we note that petitioner is entitled to no relief as to her assignment of error 

regarding the circuit court’s failure to transport her to the dispositional hearing, or any other 

assignment of error in which she relies on the failure to transport for support. The record is clear 

that petitioner did not request to be transported to the hearing in question and, accordingly, she is 

not entitled to relief for the circuit court’s failure to secure her presence. Petitioner is correct that 

this Court has set forth procedural protections for incarcerated parents by establishing several 

factors to be considered in determining whether to permit an incarcerated parent to attend a 

dispositional hearing. See syl. pt. 11, State ex rel. Jeanette H. v. Pancake, 207 W. Va. 154, 529 

S.E.2d 865 (2000). However, petitioner fails to recognize that this Court has additionally held as 

follows:

In order to activate the procedural protections enunciated in Syllabus points 

10 and 11 of State ex rel. Jeanette H. v. Pancake, 207 W.Va. 154, 529 S.E.2d 865 

(2000), an incarcerated parent who is a respondent to an abuse and neglect 

proceeding must inform the circuit court in which such case is pending that he/she 

is incarcerated and request the court’s permission to attend the hearing(s) 

scheduled therein. Once the circuit court has been so notified, by the respondent 

parent individually or by the respondent parent’s counsel, the determination of 

whether to permit the incarcerated parent to attend such hearing(s) rests in the 

court’s sound discretion.

 

3All parents’ parental rights to the children have been terminated, in addition to the 

termination of the custodial rights of the children’s custodian. The permanency plan is adoption 

by the children’s current foster family. 
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Syl. Pt. 4, In re: Stephen Tyler R., 213 W. Va. 725, 584 S.E.2d 581 (2003) (emphasis added). 

Petitioner fails to provide any citation to the record that she informed the circuit court she 

was incarcerated and/or that she sought permission to attend the dispositional hearing. On appeal 

to this Court, petitioner asserts only that she “informed the lower court at the first [dispositional] 

hearing that she wished to testify at the second hearing.” Indeed, the record indicates that petitioner 

expressed her desire to testify at the continued dispositional hearing. However, the record also 

shows that petitioner and her counsel informed the circuit court at the first dispositional hearing 

that petitioner would be released by the time the continued hearing was held. When the parties 

appeared for the continued hearing in August of 2018, petitioner’s counsel informed the circuit 

court that instead of being released, petitioner had been sentenced and transferred to Lakin 

Correctional Center. The record is also clear that at the dispositional hearing in August of 2018, 

petitioner’s counsel did not request a continuance or otherwise move to secure petitioner’s 

presence at the hearing and did not object to the circuit court holding the dispositional hearing in 

her absence. As such, we find that the circuit court was not required to consider the factors outlined

in Pancake given that petitioner did not inform the circuit court of her incarceration prior to the 

August of 2018 dispositional hearing or request permission to attend.

Next, petitioner argues that it was error to deny her motion for an improvement period. In 

support, petitioner argues that she acknowledged the conditions of neglect by stipulating to 

adjudication and further testified that “she would place her children above all other concerns.” 

Further, petitioner argues that her successful completion of an improvement period in her prior 

abuse and neglect proceeding clearly showed that she was likely to fully comply with an 

improvement period in this matter. Upon review, we find no error in the circuit court’s denial of 

petitioner’s motion. While petitioner argues that her prior compliance with services supports the 

granting of an additional improvement period, the circuit court found that granting petitioner a 

new improvement period would be futile, given the fact that she was “previously . . . provided 

services . . . for nearly identical allegations as set forth in the instant case.” We agree with the 

circuit court’s reasoning. While it is true that petitioner completed an improvement period and 

regained custody of her children in a prior proceeding, the conditions that necessitated their 

removal in both cases were practically identical. Thus, the issues of neglect central to petitioner’s 

first case, although mitigated for a short period, were never truly resolved. 

The decision to grant or deny an improvement period rests in the sound discretion of the 

circuit court. See In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia 

law allows the circuit court discretion in deciding whether to grant a parent an improvement 

period.”); syl. pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“It is within the 

court’s discretion to grant an improvement period within the applicable statutory requirements . . 

. .”). We have also held that a parent’s “entitlement to an improvement period is conditioned upon 

the ability of the parent/respondent to demonstrate ‘by clear and convincing evidence, that the 

respondent is likely to fully participate in the improvement period.’” In re: Charity H., 215 W. Va. 

208, 215, 599 S.E.2d 631, 638 (2004). Here, we find that petitioner has not established an abuse

of discretion in the circuit court’s denial of her motion for an improvement period. While petitioner 

cites to her testimony regarding her acknowledgement of the conditions of neglect and her 

willingness to comply with services, we find that the circuit court was correct that an additional 

improvement period would be futile, given the persistence of the issues necessitating the children’s 
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removal across two separate proceedings. As such, we find that petitioner is entitled to no relief in 

this regard.

Next, petitioner argues that the circuit court erred in terminating her parental rights 

“because there were alternative dispositions that were appropriate.” According to petitioner, a lessrestrictive disposition, such as placing the children in a legal guardianship pending her release 

from incarceration, would have been more appropriate and in keeping with the children’s best 

interests. Further, petitioner argues that the circuit court’s finding that there was no reasonable 

likelihood the conditions of neglect could be substantially corrected was not supported by the 

evidence. We disagree. 

In finding there was no reasonable likelihood petitioner could substantially correct the 

conditions of neglect, the circuit court relied on the fact that petitioner “already participated in 

services with the [DHHR] and counseling through Potomac Highlands Guild, but it is clear her 

circumstances have not changed, nor has she apparently benefited from said services and resources 

in remedying the ongoing conditions of neglect and/or abuse.” Further, the circuit court found that 

petitioner actively “attempted to thwart any effort by the [DHHR] to assist her minor children” by 

instructing them upon their removal that the DHHR intended to harm them, as opposed to help 

them. Based upon this evidence, the circuit court found that petitioner “demonstrated an inadequate 

capacity to solve or remedy the conditions and circumstances constituting neglect and/or abuse of 

her children on her own or with the aid of services implemented through a reasonable case plan 

previously.” According to West Virginia Code § 49-4-604(c), “‘no reasonable likelihood that 

conditions of neglect or abuse can be substantially corrected’ means that, based upon the evidence 

before the court, the abusing adult or adults have demonstrated an inadequate capacity to solve the 

problems of abuse or neglect on their own or with help.” Based on the substantial evidence of the 

continued conditions in petitioner’s home, it is clear that the circuit court did not err in making this 

finding.

West Virginia Code § 49-4-604(b)(6) permits a circuit court 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 welfare of the 

child. As set forth above, the circuit court had ample evidence upon which to base its finding that 

there was no reasonable likelihood the conditions of neglect could be substantially corrected. 

Similarly, there was ample evidence to support the circuit court’s finding that termination of 

petitioner’s parental rights was necessary for the children’s welfare. This evidence included the 

children’s “ages and current status,” in addition to the nature of the criminal offense which resulted 

in petitioner’s incarceration during these proceedings, and the children’s “paramount need of 

safety, security, stability, continuity and permanency.” 

This Court has held as follows:

“Termination 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 
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§ 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). Further, “[c]ourts are not 

required to exhaust every speculative possibility of parental improvement . . . where it appears that 

the welfare of the child will be seriously threatened.” Cecil T., 228 W. Va. at 91, 717 S.E.2d at 

875, syl. pt. 4 (quoting syl. pt. 1, in part, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)).

Based on the foregoing, it is clear that substantial evidence existed to support these findings.

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

Finally, petitioner argues that the circuit court erred in denying her request for posttermination visitation with the children. According to petitioner, the children, ages ten and twelve, 

were of appropriate maturity to express their desires to have continued contact with petitioner. In 

support of this assignment of error, petitioner cites to correspondence from therapists for the 

children who indicated that K.C. “expressed primarily wanting to live with her . . . mother,” while 

A.C. “would like contact with her mother.” As such, petitioner argues that “the lower court should 

have looked at whether . . . the children had a close emotional bond with [petitioner] and . . . what 

their wishes were regarding visitation.” 

While petitioner is correct that the children’s therapists indicated that they were of 

sufficient maturity to express opinions on this issue, petitioner fails to recognize that the circuit 

court was not bound to follow their opinions. Indeed, this Court has held that 

“[w]hen parental rights are terminated due to neglect or abuse, the circuit 

court may nevertheless in appropriate cases consider whether continued visitation 

or other contact with the abusing parent is in the best interest of the child. Among 

other things, the circuit court should consider whether a close emotional bond has 

been established between parent and child and the child’s wishes, if he or she is of 

appropriate maturity to make such request. The evidence must indicate that such 

visitation or continued contact would not be detrimental to the child’s well being 

and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va. 

446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002). As this Court has made clear, 

circuit courts must consider the wishes of a child, where appropriate, but, ultimately, “‘[i]n a 

contest involving the custody of an infant the welfare of the child is the polar star by which the 

discretion of the court will be guided.’ Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 

47 S.E.2d 221 (1948).” Syl. Pt. 3, In re S.W., 233 W. Va. 91, 755 S.E.2d 8 (2014). While both 

children may have desired continued contact with petitioner, the circuit court considered their 

wishes and found that such contact would be detrimental to their well-being. This decision was 

based upon findings that petitioner permitted the same conditions of neglect to persist across two 

proceedings, which necessitated the children’s removal on two occasions. As such, the circuit court 

found that “it is not in the minor children’s best interests for their placement to [be] continually 

disrupt[ed].” Because the children need “safety, stability, security, continuity, and permanency,” 

the circuit court denied petitioner’s request for post-termination visitation, and we find no error in 

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

September 9, 2018, order is hereby affirmed.

Affirmed.

ISSUED: April 19, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison