STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

In Re: A.J. June 2, 2014 

RORY L. PERRY II, CLERK 

No. 13-1166 (Barbour County 12-JA-18) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother, by counsel Roger Curry, appeals the Circuit Court of Barbour 

County’s October 21, 2013, order terminating her parental rights to A.J. The West Virginia 

Department of Health and Human Resources (“DHHR”), by counsel Katherine Bond, filed its 

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

filed a response on behalf of the child that also supports the circuit court’s order. On appeal, 

Petitioner Mother alleges that the circuit court erred in terminating her parental rights to A.J. 

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 decision is appropriate under Rule 

21 of the Rules of Appellate Procedure. 

In 2012, a Child Protective Services (“CPS”) worker conducted a wellness check at 

Petitioner Mother’s residence. The worker observed Petitioner Mother acting in an erratic 

manner. The worker believed that Petitioner Mother was under the influence of an unknown 

substance that prevented her from being able to properly care for A.J. Ultimately, Petitioner 

Mother was arrested for assault and misdemeanor child neglect of A.J.1 As a result, the DHHR 

filed a petition for immediate custody of A.J. The petition alleged that Petitioner Mother’s 

substance abuse affected her ability to appropriately care for her child. 

Following a preliminary hearing, the circuit court directed Petitioner Mother to submit to 

random drug tests and to undergo a psychological evaluation.2 In November of 2012, Petitioner 

Mother stipulated that she was a drug addict and that her drug problem affected her ability to 

properly care for A.J. As such, the circuit court adjudicated Petitioner Mother as an abusive and 

neglectful parent and granted her a six-month post-adjudicatory improvement period. As part of 

her improvement period, Petitioner Mother was directed to participate in mental health 

counseling, substance abuse counseling, self-awareness classes, and supervised visitation. 

1

The record is devoid of any information regarding the disposition of these alleged 

crimes. 

2

The circuit court placed the child with her maternal aunt and granted Petitioner Mother 

supervised visitation. 

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The circuit court held a review hearing on December 12, 2012. The GAL filed a report 

for the review hearing stating that Petitioner Mother had tested positive for Oxycodone on 

November 30, 2012.3 Despite Petitioner Mother’s positive drug test, the circuit court continued 

her improvement period and scheduled another review hearing. 

Prior to the next review hearing the GAL moved to terminate Petitioner Mother’s postadjudicatory improvement period because she had failed three more drug tests, denied 

consuming alcohol4

, missed an unknown number of drug tests, and was caught with a container 

of urine during a random drug screen that she presumably intended to substitute for her own 

drug-tainted urine. Following a hearing on the GAL’s motion, the circuit court terminated 

Petitioner Mother’s improvement period. Thereafter, the circuit court held a dispositional hearing 

and terminated Petitioner Mother’s parental rights.5 It is from this order that Petitioner Mother 

now appeals. 

The Court has previously established the following standard of review in such cases: 

“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 

that the circuit court did not err in terminating Petitioner Mother’s parental rights to A.J. 

Petitioner Mother argues that her drug addiction is a serious and perpetual problem that cannot 

be resolved within the time limits of our laws in child abuse and neglect cases which were 

created with the child’s need for permanence in mind. Petitioner Mother also argues that the 

circuit court should have ordered additional terms of supervision pursuant to West Virginia Code 

§§ 49-6-5(a)(4) or (5), to allow her to address her drug addiction and achieve reunification. The 

Court does not find this argument persuasive. 

3

At the hearing, Petitioner Mother denied using Oxycodone. 

4

The GAL witnessed Petitioner Mother order alcoholic beverages at sports bar. 

5

The circuit court granted Petitioner Mother post-termination visitation at the discretion 

of the multidisciplinary team appointed to the case. 

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The record shows that Petitioner Mother continued to use drugs after she was granted a 

post-adjudicatory improvement period, continued to deny using drugs or drinking alcohol, and 

attempted to falsify a drug screen by bringing a container of urine into the testing area. Based 

upon this evidence, the circuit court found that there was no reasonable likelihood that Petitioner 

Mother could correct the conditions of abuse and neglect in the foreseeable future. The circuit 

court specifically found that Petitioner Mother “has never overcome her drug addiction” and 

“fail[ed] to appear for drug testing.” Pursuant to West Virginia Code § 49-6-5(b)(1) these 

conditions constitute a situation in which there is no reasonable likelihood that the parent can 

substantially correct the conditions of abuse or neglect in the near future. Additionally, the circuit 

court found that the child is “entitled to permanency” especially in light of the fact that the child 

has been in the care of her maternal aunt for more than one year. Pursuant to West Virginia Code 

§ 49-6-5(a)(6), a circuit court is directed to terminate parental rights upon such findings. We 

have previously held that “‘courts are not required to exhaust every speculative possibility of 

parental improvement before terminating parental rights where it appears that the welfare of the 

child will be seriously threatened . . . .’ Syllabus point 1, In re R.J.M., 164 W.Va. 496, 266 

S.E.2d 114 (1980).” Syl. Pt. 4, in part, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). 

Thus, for the foregoing reasons, the Court finds no error in the circuit court’s decision to 

terminate Petitioner Mother’s parental rights. 

The Court also finds no merit in Petitioner Mother’s argument that the circuit court erred 

in permanently severing her parental bond with her child. We have previously 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.” Syl. Pt. 5, in part, In re Christina L., 194 W.Va. 446, 460 

S.E.2d 692 (1995). While the circuit court terminated Petitioner Mother’s parental rights, the 

circuit court allowed Petitioner Mother the opportunity to continue to have a role in A.J.’s life. 

The circuit court specifically directed the multidisciplinary team to determine whether continued 

visitations between Petitioner Mother and A.J. were in the best interest of the child. For this 

reason, the Court finds no merit in Petitioner Mother’s argument that the circuit court 

permanently severed the bond with the child. 

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

October 21, 2013, order is hereby affirmed. 

Affirmed. 

ISSUED: June 2, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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