STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In re: P.L. and A.W. November 21, 2016 

RORY L. PERRY II, CLERK 

No. 16-0649 (Mercer County 15-JA-138-DS & 15-JA-139-DS) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother J.L., by counsel David B. Kelley, appeals the Circuit Court of Mercer 

County’s June 1, 2016, order terminating her parental rights to P.L. and A.W.1 The West 

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

its response in support of the termination of petitioner’s parental rights. The guardian ad litem 

(“guardian”), Michael Magann, filed a response on behalf of the children in support of 

termination. On appeal, petitioner alleges that the circuit court erred when it failed to make 

appropriate findings of fact in its dispositional order and terminated her parental rights without 

first granting her an additional 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 September of 2015, the DHHR filed an abuse and neglect petition against the 

following individuals: petitioner, mother of then three-year-old P.L. and then one-year-old A.W.; 

the biological father of P.L., B.L.; the biological father of A.W., Z.W.; and V.K., the individual 

who had custody of the children at the petition’s filing. According to the petition, the DHHR first 

became involved with petitioner when it received a referral of child neglect in June of 2015. A 

Child Protective Services (“CPS”) worker visited the home, but no one was present at the time. 

The worker inspected the home and found the outside of the home to be in “deplorable” 

condition. According to the worker, the front porch was beginning to cave in; the back porch was 

covered with dog feces, trash, and various other items; and the yard contained garbage and 

diapers strewn throughout. CPS contacted petitioner and she informed them that she moved to 

the State of North Carolina. As such, the DHHR made a referral to the North Carolina 

Department of Social Services and closed petitioner’s case. 

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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However, two months later the DHHR received a report that petitioner and her children 

were living in a tent in the woods in Princeton, West Virginia, and that petitioner was “actively 

under the influence” in the children’s presence. The DHHR made two attempts to contact 

petitioner, without success, before it received another referral that petitioner had relocated. 

Eventually, the DHHR arrived at petitioner’s new location and found the children with V.K., an 

individual whose parental rights to his own children had been involuntarily terminated. The 

individuals appeared to be living in a tent, and several beer cans were observed outside the tent. 

P.L. had multiple scratches on his legs and what appeared to be a large, fading bruise on his 

cheek. A.W. had multiple bug bites covering her body, severe diaper rash, and appeared to be in 

pain due to an ear ache. Petitioner was not in the area, but later advised the police, by telephone, 

that she was in Beckley, West Virginia. Eventually police located petitioner and brought her to 

the tent. Although she denied any drug use, CPS observed a recent track mark on her arm. At 

that point, petitioner admitted to snorting Dilaudid and Lortab. V.K. further indicated that 

petitioner had intravenously abused Dilaudid two days earlier. Petitioner admitted that she was 

staying with her boyfriend and had left her children with V.K. for periods of time. Petitioner also 

admitted to prostituting to support her drug habit. As such, the children were placed in the 

DHHR’s custody. 

In October of 2015, the circuit court held an adjudicatory hearing, during which it found 

petitioner to be an abusing parent based upon her drug use and the conditions to which she 

subjected the children. It was also determined that the children suffered multiple health issues. 

A.W. was diagnosed with bronchitis and an umbilical hernia, while P.L. was believed to have a 

facial contusion and was suffering from severe headaches. P.L. was also diagnosed with a heart 

murmur. The circuit court heard further evidence that P.L. disclosed that petitioner hit him on the 

head, his “daddy” kicked him in the face, and petitioner gave him beer at night to help him sleep. 

The circuit court then granted petitioner a post-adjudicatory improvement period to address her 

drug problems. 

In December of 2015, petitioner entered a detoxification program at the “Mother’s 

Program” as part of her improvement period. After completing detoxification, but before 

undergoing treatment, petitioner left the premises and was found drinking alcohol with a peer. 

Although the Mother’s Program allowed her to remain in treatment, petitioner opted not to do so 

and her whereabouts were unknown for some time. When petitioner reappeared, the DHHR 

secured her placement in another treatment program and continued to provide services to assist 

with her drug problem. However, petitioner later left that program and the DHHR was unable to 

maintain regular contact with her thereafter. In fact, petitioner’s whereabouts were unknown for 

so long that her mother contacted CPS and indicated that she was so worried about petitioner that 

she was going to file a missing person report with law enforcement. Thereafter, in April of 2016, 

the DHHR filed a motion to terminate petitioner’s parental rights upon allegations that she failed 

two attempts at substance abuse treatment and was missing throughout much of her improvement 

period. 

In May of 2016, the circuit court held a dispositional hearing. During the hearing, the 

circuit court heard from multiple service providers who testified regarding petitioner’s failure to 

correct the conditions of abuse and neglect. According to one provider, petitioner was not 

motivated to correct these issues, as evidenced by the fact that she voluntarily left two treatment 

programs after approximately one week. According to this provider, petitioner returned to 

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substance abuse when she left these programs and had recently been seen with V.K. A service 

provider who supervised visitation testified that petitioner never provided for the children during 

visits and also refused to change diapers unless directly instructed to do so. Petitioner testified 

and indicated that her service providers could not reach her because someone stole her phone. 

The circuit court recessed to allow petitioner to submit to a drug screen, but petitioner indicated 

that she could not produce a sample. Accordingly, the circuit court noted that it believed this to 

be indicative of the fact that petitioner would fail the drug screen. The circuit court found that the 

guardian’s previously submitted report succinctly summarized the case and adopted the same in 

regard to disposition. The circuit court then terminated petitioner’s parental rights. 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). 

Upon our review, the Court finds no reversible error below. We have previously held that 

“[w]here it appears from the record that the process established by the 

Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes 

for the disposition of cases involving children [alleged] to be abused or neglected 

has been substantially disregarded or frustrated, the resulting order . . . will be 

vacated and the case remanded for compliance with that process and entry of an 

appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621, 

558 S.E.2d 620 (2001). 

Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). On appeal, petitioner claims 

that the circuit court erred in failing to include specific findings of fact and conclusions of law in 

its dispositional order. However, based upon the specific facts of this matter, the Court finds that 

the lack of findings of fact and conclusions of law as alleged by petitioner do not constitute a 

substantial disregard or frustration of the applicable rules such that vacation of the dispositional 

order is required. 

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Both West Virginia Code § 49-4-604 and Rule 36 of the Rules of Procedure for Child 

Abuse and Neglect Proceedings require the circuit court to set forth a sufficient factual basis for 

the termination of a parent’s parental rights. Specifically, West Virginia Code § 49-4-604(b)(6) 

predicates termination of a parent’s parental, custodial, and guardianship rights “[u]pon a finding 

that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially 

corrected in the near future” and that such termination is “necessary for the welfare of the child . 

. . .” Similarly, Rule 36(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect 

Proceedings requires a circuit court at disposition to “make findings of fact and conclusions of 

law, in writing or on the record, as to the appropriate disposition in accordance with the 

provisions of W. Va. Code § 49-4-604.” The record on appeal is clear that the evidence below 

overwhelmingly supported termination of petitioner’s parental rights. 

Pursuant to West Virginia Code § 49-4-604(c)(1), there is no reasonable likelihood the 

conditions of abuse and neglect can be substantially corrected when 

[t]he abusing parent . . . [has] habitually abused or [is] addicted to alcohol, 

controlled substances or drugs, to the extent that proper parenting skills have been 

seriously impaired and the person . . . [has] not responded to or followed through 

the recommended and appropriate treatment which could have improved the 

capacity for adequate parental functioning[.] 

The evidence below established that petitioner not only continued to abuse drugs throughout the 

proceedings, but she also failed to follow through with the recommended treatment for her 

substance abuse issues. Specifically, the DHHR obtained petitioner placement in two separate 

drug treatment facilities, but she voluntarily left both facilities without completing treatment. 

Thereafter, her whereabouts were unknown for extended periods during the proceedings. As 

such, it is clear that there was no reasonable likelihood the conditions of abuse and neglect could 

be substantially corrected. Moreover, it is clear that the children’s welfare required termination 

of petitioner’s parental rights. According to West Virginia Code § 49-4-604(b)(6), circuit courts 

are required to terminate parental rights upon these findings. 

Further, the Court finds no error in regard to petitioner’s argument that the circuit court 

should have granted her an additional improvement period. It is important to note that it is 

unclear whether petitioner’s claim relates to an extension of her post-adjudicatory improvement 

period or an improvement period as disposition, as petitioner cites the standard of proof 

necessary for obtaining an extension of an improvement period but also argues that the circuit 

court should have granted her “an additional improvement period.” As such, we will address 

both possibilities. 

In support of her argument, petitioner alleges that she substantially complied with the 

terms of her post-adjudicatory improvement period, as evidenced by her acknowledgment of her 

substance abuse, and her participation in hearings and multidisciplinary team meetings. These 

facts, however, do not constitute substantial compliance with the terms of her post-adjudicatory 

improvement period. Moreover, petitioner’s argument ignores the fact that the main condition of 

abuse and neglect, namely her substance abuse, continued unabated during the proceedings. 

We have previously held that 

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“[a]t the conclusion of the improvement period, the court shall review the 

performance of the parents in attempting to attain the goals of the improvement 

period and shall, in the court’s discretion, determine whether the conditions of the 

improvement period have been satisfied and whether sufficient improvement has 

been made in the context of all the circumstances of the case to justify the return 

of the child[ren].” Syllabus Point 6, In the Interest of Carlita B., 185 W.Va. 613, 

408 S.E.2d 365 (1991). 

Syl. Pt. 4, In re Faith C., 226 W.Va. 188, 699 S.E.2d 730 (2010). Based upon the evidence 

below, the Court finds that petitioner failed to make sufficient improvement to justify the return 

of the children to her care. In addition to her voluntary exit from two substance abuse treatment 

programs, the evidence shows that petitioner indicated she could not provide a sample for a drug 

screen when ordered to do so at disposition. As such, it is clear that petitioner also failed to make 

sufficient progress in regard to correcting her substance abuse issues such that the circuit court 

could return the children to her care. 

Moreover, petitioner was not entitled to an additional improvement period as disposition 

because of her continued drug abuse. According to West Virginia Code § 49-4-610(3)(D), a 

circuit court may only grant an improvement period as disposition when the parent has already 

received an improvement period if the parent “demonstrates that since the initial improvement 

period, the [parent] has experienced a substantial change in circumstances.” The record here is 

clear that petitioner failed to satisfy this burden. While it is true that petitioner did attend some 

hearings and meetings, such attendance does not constitute a substantial change in circumstances 

in light of her continued substance abuse. For these reasons, we find that petitioner was not 

entitled to an extension to her post-adjudicatory improvement period or an improvement period 

as disposition. 

For the foregoing reasons, we find no error in the circuit court’s June 1, 2016, order, and 

we hereby affirm the same. 

Affirmed. 

ISSUED: November 21, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Robin Jean Davis 

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