STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In re: L.G.-1, L.G.-2, K.G., and J.G. November 21, 2016 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS No. 16-0673 (Roane County 15-JA-48, 15-JA-49, 15-JA-50, & 15-JA-51) OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother A.B., by counsel D. Kyle Moore, appeals the Circuit Court of Roane 

County’s June 17, 2016, order terminating her parental rights to eight-year-old L.G.-1, six-yearold L.G.-2, three-year-old K.G., and one-year-old J.G.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 (“guardian”), Anita Harold Ashley, filed a response 

on behalf of the children supporting the circuit court’s order. On appeal, petitioner argues that 

the circuit court erred in finding that she abused and neglected her 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. 

In November of 2015, the DHHR filed an abuse and neglect petition against petitioner 

and the father. The DHHR alleged that the parents’ drug abuse resulted in the children’s abuse. 

The DHHR also alleged that the home was filthy and unsanitary, the children had not received 

proper dental care, and the parents denied a DHHR worker entry into the home. The DHHR 

further alleged that petitioner and the father were involved in a pending abuse and neglect case in 

Jackson County, West Virginia and they refused to cooperate with services in that case. 

Subsequently, the circuit court held a preliminary hearing wherein petitioner and the father failed 

to appear because they were not properly served. The parties’ counsel was present. A DHHR 

worker testified that both parents were non-compliant with her requests to enter the home 

following a referral and had visible sores on their bodies that were “consistent with drug use.” 

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). Additionally, because two of the children in this matter share 

the same initials, the Court will refer to them as L.G.-1 and L.G.-2 throughout this memorandum 

decision. 

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The worker also testified that petitioner ultimately let the worker in the home and petitioner 

appeared to be groggy, disheveled, and staggering. The circuit court granted petitioner and the 

father leave to file a motion for a supplemental preliminary hearing due to lack of notice. Neither 

petitioner nor the father requested a supplemental preliminary hearing in this matter. 

In January of 2016, the circuit court held an adjudicatory hearing wherein petitioner 

testified that neither she nor the father had substance abuse problems, they were not abusing 

drugs, and both would “pass a drug screen that day.” The circuit court ordered petitioner and the 

father to submit to random drug screens during a recess. Following the screen, petitioner tested 

positive for amphetamines and Suboxone. The father tested positive for amphetamines, 

Suboxone, and methamphetamines. Petitioner objected to the relevance of the drug screen to the 

extent that it would be used as evidence of her drug use at adjudication. The circuit court noted 

petitioner’s objection and stated that the positive drug screen would be relevant as to her 

credibility as a witness. The father moved the circuit court to continue the remainder of the 

hearing until the parties received laboratory confirmation of the drug screens. 

In February of 2016, the circuit court concluded the adjudicatory hearing and the results 

of the parents’ prior positive drug screens were admitted into evidence. Petitioner testified and 

admitted that she relapsed by using Suboxone following the removal of the children. The father 

similarly admitted that he relapsed by using Suboxone following the removal of the children. A 

DHHR worker testified that petitioner did not keep in contact with the DHHR and did not attend 

random drug screens, which were a prerequisite to visitation with the children. At the close of the 

DHHR’s evidence, petitioner moved the circuit court to continue the hearing for another day so 

that she could present additional witnesses. The circuit court granted her motion and ordered 

petitioner and the father to submit to random drug screens following the hearing. Subsequently, 

the mother presented the testimony of her aunt who stated that she had not recently observed 

either petitioner or the father using drugs, as she did in the past. She admitted, however, that she 

had not observed either party recently and had only seen them “a couple of times” in the last 

year. Based on the evidence presented at the adjudicatory hearing, the circuit court found by 

clear and convincing evidence that petitioner suffered from substance abuse issues that adversely 

affected her ability to parent her children and resulted in the children’s abuse. Thereafter, 

petitioner filed a motion for a post-adjudicatory improvement period. 

In May of 2016, the circuit court held a dispositional hearing and addressed petitioner’s 

motion for a post-adjudicatory improvement period. Petitioner did not appear in person but was 

represented by counsel. No cause was given for her absence but the father indicated that she was 

aware of the hearing. A DHHR worker testified that petitioner failed to comply with the circuit 

court’s orders. The worker testified that petitioner failed to submit to random drug screens, 

except for the initial drug screen at the January of 2016 hearing. The worker also testified that 

petitioner failed to visit the children because she refused to submit to random drug screens, failed 

to submit to a psychological evaluation and parental fitness evaluation, and failed to keep in 

contact with the DHHR. The circuit court found that petitioner failed to take responsibility for 

her actions and failed to participate in services during the pendency of the proceedings. The 

circuit court concluded that there was no reasonable likelihood that the conditions of abuse and 

neglect could be corrected in the near future and denied petitioner’s motion for an improvement 

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period. Based on the evidence presented, the circuit court terminated petitioner’s parental rights 

to the children by order dated June 17, 2016. It is from this order that petitioner appeals. 

This 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). On appeal, petitioner argues that 

the circuit court erred in admitting and relying on her failed drug screen as evidence at her 

adjudication because it was taken more than two months after the removal of the children. The 

Court, however, does not agree. 

Petitioner’s argument is premised entirely upon the allegation that her drug screen could 

not be used to support adjudication in this matter because it was not relevant. Specifically, 

petitioner argues that West Virginia Code § 49-4-601(i) requires that the adjudicatory findings 

“must be based upon conditions existing at the time of the filing of the petition.” According to 

petitioner, the results of her drug screen did not support adjudication because they were obtained 

well after the petition’s filing. 

However, petitioner’s argument ignores the fact that the circuit court did not rely on the 

drug screen results to find that she abused or neglected her children. Instead, the circuit court 

specifically found that the results were relevant for purposes of determining petitioner’s 

credibility. During the adjudicatory hearing, petitioner not only testified that she was not abusing 

drugs at the time of the petition’s filing, but she also testified that she was not abusing drugs and 

would pass a drug screen. As such, the circuit court ordered a screen and specifically stated that 

it would consider a negative screen for the purposes of determining her credibility. Although 

petitioner denied abusing drugs prior to the removal of the children, the circuit court was not 

required to accept her testimony as true. We have previously held that “[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.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997). 

Petitioner presented no evidence disputing the drug abuse allegations, other than her testimony 

that she had been clean for approximately eight years despite her admitted relapse on Suboxone. 

In fact, petitioner testified in open court that she would pass a random drug screen and then 

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tested positive for amphetamines and Suboxone. Thus, the circuit court determined that 

petitioner’s failed drug screen was relevant to her credibility as a witness. As such, we find no 

error in the circuit court’s admission of petitioner’s drug screen results into evidence. 

Additionally, to the extent that petitioner argues that there was insufficient evidence to 

adjudicate her as an “abusing parent,” we also disagree. Specifically, petitioner asserts that the 

circuit court erred when it considered her failed drug screen during adjudication because it was 

not “evidence of a substance abuse problem prior to or at the time of removal” and the only basis 

for termination. This argument ignores substantial evidence in the record on appeal. Even 

without the evidence of petitioner’s positive drug screen, there was sufficient evidence that she 

abused and neglected the children. 

According to West Virginia Code § 49-1-201, an abused child is one whose “health or 

welfare is harmed or threatened by [a] parent, guardian or custodian who knowingly or 

intentionally inflicts, attempts to inflict or knowingly allows another person to inflict, physical 

injury or mental or emotional injury, upon the child or another child in the home.” Similarly, an 

“[a]busing parent means a parent . . . whose conduct has been adjudicated by the court to 

constitute child abuse or neglect as alleged in the petition charging child abuse or neglect.” Id. 

We have also explained that 

“W.Va. Code, 49-6-2(c), [now § 49-4-601], requires the [DHHR], in a 

child abuse or neglect case, to prove ‘conditions existing at the time of the filing 

of the petition . . . by clear and convincing [evidence].’ The statute, however, does 

not specify any particular manner or mode of testimony or evidence by which the 

[DHHR] is obligated to meet this burden.” Syllabus Point 1, In Interest of S.C., 

168 W.Va. 366, 284 S.E.2d 867 (1981). 

Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (internal citations omitted). 

Upon our review, we find that the record demonstrates that the circuit court was 

presented with ample evidence of petitioner’s abuse. Moreover, it is clear that substance abuse 

was not the only issue upon which petitioner was adjudicated. In addition to the testimony that 

petitioner appeared to have sores and marks on her face and arms that were consistent with signs 

of substance abuse, the circuit court was presented with evidence that petitioner’s home was in 

an unsanitary and unlivable condition and she failed to secure dental treatment for the children. 

A DHHR worker testified that the home was filthy, the mattresses and bedding were dirty, and 

the children were not clean. The worker also testified that the oldest child, L.G.-1, had only been 

to a dentist once and had four of her teeth extracted due to “bottle rot.” The worker further 

testified that another child, K.G., required emergency dental surgery as a result of severe tooth 

decay. Petitioner admitted that the three youngest children had never been to a dentist and still 

drank from a baby bottle. Based upon the record, the evidence of abuse and neglect is sufficient 

to support the circuit court’s findings that petitioner was an abusing parent and that the children 

were abused and neglected. 

For the foregoing reasons, the circuit court’s June 17, 2016, termination order is hereby 

affirmed. 

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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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