STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In re: D.H. and J.W. FILED 

November 21, 2016 No. 16-0448 (Wood County 15-JA-106 & 15-JA-175) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother B.W., by counsel Debra L. Steed, appeals the Circuit Court of Wood 

County’s March 3, 2016, order terminating her parental rights to three-year-old D.H. and fivemonth-old J.W.1 The West Virginia Department of Health and Human Resources (“DHHR”), by 

counsel Lee Niezgoda, filed its response in support of the circuit court’s order. The guardian ad 

litem, Robin S. Bonovitch, filed a response on behalf of the children also in support of the circuit 

court’s order. On appeal, petitioner argues that the circuit court erred in terminating her postadjudicatory improvement period and 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 June of 2015, the DHHR filed an abuse and neglect petition against petitioner alleging 

that she abused D.H. According to the petition, D.H.’s biological father picked the child up for 

visitation and observed that the child had facial and ear bruising, a tongue injury, an injury on his 

buttocks, an ankle abrasion, and superficial bruising on his stomach. The father took the child to 

the emergency room where the injuries were determined to be non-accidental.2 

In July of 2015, the circuit court held an adjudicatory hearing wherein petitioner 

stipulated to the following: she left D.H. alone with her live-in boyfriend, D.H. disclosed to her 

that the boyfriend spanked him and bit his arm and face, D.H. suffered previous injuries while in 

the boyfriend‘s custody, and she left D.H. in the boyfriend’s continued care. Based on the 

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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Subsequently, the father filed a domestic violence petition against petitioner and 

obtained emergency custody of D.H. 

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stipulations, the circuit court found that petitioner and the boyfriend abused D.W. By order 

entered on August 10, 2015, the circuit court granted petitioner a post-adjudicatory improvement 

period. Subsequently, a case plan was created to address the conditions of abuse and neglect. As 

part of the case plan, petitioner was prohibited from having contact with the boyfriend. 

In November of 2015, petitioner gave birth to J.W. and the DHHR filed an amended 

petition.3 In December of 2015, petitioner stipulated to the allegations contained in the amended 

petition, which were based on the previous adjudication in D.H.’s case. 

In January of 2016, the circuit court held an initial dispositional hearing during which the 

guardian moved for the termination of petitioner’s post-adjudicatory improvement period for 

non-compliance with the terms and conditions of said improvement period. According to a 

DHHR worker’s testimony, petitioner maintained contact with the boyfriend, repeatedly visited 

him during his incarceration, and lied about maintaining the relationship. The circuit court 

denied the guardian’s motion and continued the dispositional hearing in order to allow petitioner 

to continue receiving services pending the final dispositional hearing. 

In February of 2016, the circuit court held a final dispositional hearing wherein it again 

heard testimony that petitioner continued to contact the boyfriend. A DHHR worker testified that 

petitioner lived in a home owned by the boyfriend’s mother, maintained a relationship with the 

boyfriend, and lied about the on-going relationship. The children’s step-mother testified that 

petitioner communicated to her that she did not “see any problem” in continuing the relationship. 

At the close of the testimony, the circuit court found that petitioner repeatedly violated the terms 

of her improvement period and failed to understand the need to terminate her relationship with 

the boyfriend. The circuit court also found that petitioner failed to benefit from the services 

provided to her and failed to protect the children from abuse. Based upon its findings, the circuit 

court determined that there was no reasonable likelihood that the conditions of abuse and neglect 

could be substantially corrected in the near future and termination of petitioner’s parental rights 

was in the children’s best interests. By order entered on March 3, 2016, the circuit court 

terminated petitioner’s improvement period and terminated her parental rights to the children. It 

is from this order that petitioner now 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 

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The boyfriend, P.J., is J.W’s biological father. 

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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 proceedings below. 

On appeal, petitioner argues that the circuit court erred in terminating her postadjudicatory improvement period because she was not afforded sufficient time to demonstrate to 

the circuit court that she ended her relationship with the boyfriend. West Virginia Code § 49-4­

610 sets forth when a circuit court may grant, extend, or terminate an improvement period. 

Further, West Virginia Code § 49-4-610(7) requires the termination of an improvement period 

“when the court finds that [a parent] has failed to fully participate in the terms of the 

improvement period.” Additionally, we have long held that “[i]t is within the court’s discretion 

to grant an improvement period . . . [and] it is also within the court’s discretion to terminate the 

improvement period . . . if the court is not satisfied that the [parent] is making the necessary 

progress.” Syl. Pt. 2, In re Lacey P., 189 W.Va. 580, 433 S.E.2d 518 (1993). 

In the present case, petitioner failed to fully participate in her post-adjudicatory 

improvement period. It is clear from the record that the terms and conditions of her postadjudicatory improvement period required her to have no contact with the boyfriend. The circuit 

court heard testimony that petitioner made approximately 222 telephone calls to the boyfriend 

while he was incarcerated and lived in a home owned by one of the boyfriend’s relatives. 

Petitioner also admitted to visiting the boyfriend weekly while he was incarcerated and 

misrepresented the extent of the contact to the circuit court. The circuit court also heard 

testimony that petitioner joked to D.H.’s step-mother that the boyfriend “can’t beat the child in 

jail.” As such, it is clear that petitioner failed to fully participate in her improvement period or 

make sufficient progress. For these reasons, we find no error. 

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

because she was “largely compliant” with the terms and conditions of her improvement period. 

However, petitioner’s argument ignores the statutes that required the circuit court to terminate 

her parental rights upon a finding that there is no reasonable likelihood that the conditions of 

neglect or abuse can be substantially corrected. Pursuant to West Virginia Code § 49-4­

604(c)(3), there is no reasonable likelihood that the conditions of neglect or abuse can be 

substantially corrected when 

[t]he abusing parent or parents have not responded to or followed through with a 

reasonable family case plan or other rehabilitative efforts of social, medical, 

mental health or other rehabilitative agencies designed to reduce or prevent the 

abuse or neglect of the child, as evidenced by the continuation or insubstantial 

diminution of conditions which threatened the health, welfare or life of the child. 

At disposition, the circuit court found that there was no reasonable likelihood petitioner 

could substantially correct the conditions of abuse or neglect because she “failed to learn from 

the services provided to stay away from people who will abuse her children.” This finding was 

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based on the fact that petitioner continued to maintain contact with the boyfriend who abused her 

children and lied to the circuit court about the communication and ongoing relationship. The 

circuit court also found that termination of petitioner’s parental rights was necessary for the 

children’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are required to 

terminate a parent’s parental rights upon these findings. 

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

March 3, 2016, order is hereby affirmed. 

Affirmed. 

ISSUED: November 21, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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