STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

November 21, 2016 In re: A.B., L.B., B.M., and W.M. RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 No. 16-0653 (Fayette County 15-JA-65, 15-JA-66, 15-JA-67, & 16-JA-01) 

MEMORANDUM DECISION 

Petitioner Mother A.M., by counsel Jennifer M. Alvarez, appeals the Circuit Court of 

Fayette County’s June 7, 2016, order terminating her parental rights to fifteen-year-old L.B., 

twelve-year-old A.B., two-year-old B.M., and four-month-old W.M.1 The West Virginia 

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

response in support of the circuit court’s order. The guardian ad litem, Vickie L. Hylton, 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 limiting her visitation with the children and 

terminating 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 May of 2015, the DHHR filed an abuse and neglect petition against petitioner alleging 

that she abused alcohol and put her children in danger when she was arrested and charged for 

driving while intoxicated with two of the children in the vehicle.2 The petition contained 

additional allegations that petitioner’s home was unsanitary and “in disarray,” there was garbage 

inside the home and covering the front porch and yard, the children suffered from poor hygiene, 

and she and the father engaged in domestic violence in the children’s presence. The petition also 

noted that petitioner was involved in a previous abuse and neglect proceeding based upon 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). 

2

Petitioner was later indicted on two counts of gross child neglect creating risk of bodily 

injury and one count driving under the influence of alcohol. She later pled guilty to one felony 

count of child neglect creating risk of bodily injury and one misdemeanor count of driving under 

the influence of alcohol. 

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same issues of substance abuse and domestic violence.3 Later, petitioner waived her right to a 

preliminary hearing. 

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

stipulated to the allegations as contained in the petition. Based upon petitioner’s stipulation, the 

circuit court found that petitioner abused the children and her substance abuse affected her ability 

to parent. The circuit court ordered that petitioner submit to random drug and alcohol screening 

as a requirement for supervised visitation with the children. Petitioner then moved for and was 

granted a post-adjudicatory improvement period. The terms and conditions of petitioner’s postadjudicatory improvement period required her to submit to a psychological evaluation; attend 

parenting skills and adult life skills classes; undergo domestic violence counseling; establish a 

clean, safe, drug-free, and stable home; maintain gainful employment; and submit to random 

drug and alcohol screening, random pill counts and prescription medication monitoring. 

In January of 2016, following W.M.’s birth, the DHHR filed an amended petition that 

contained the same allegations as set forth in the original petition and noted that petitioner tested 

positive for Valium when she did not have a prescription for that medication. Subsequently, 

petitioner waived her right to a second preliminary hearing. In March of 2016, the circuit court 

held a second adjudicatory hearing wherein petitioner stipulated to the allegations as set forth in 

the amended petition. 

In April of 2016, the circuit court held a dispositional hearing wherein the circuit court 

heard testimony from a DHHR worker that petitioner failed to participate in services, failed to 

provide copies of prescriptions for medications, tested positive for benzodiazepine and 

marijuana, and refused to participate in some random drug and alcohol screenings. The worker 

testified that petitioner did not exercise her visitation with the children because she refused to 

submit to random drug and alcohol screening and visitation was ultimately terminated in 

February of 2016 because of petitioner’s non-compliance. The worker also testified that 

petitioner failed to remove the excessive amount of trash that littered the home and the property. 

The worker further testified that petitioner refused to allow service providers into the home on 

multiple occasions and, as a result, petitioner’s services were terminated. The guardian noted on 

the record that petitioner often refused her access to the home, was confrontational, and 

demanded that the guardian vacate the property on multiple occasions. 

By order entered June 7, 2016, the circuit court found that petitioner did not meaningfully 

participate in any of the services provided to her and did not “seem to be implementing anything 

that [she] learned in order to make substantial changes in [her] home.” The circuit court noted 

that the home was in much the same condition as it was when the petition was filed and 

petitioner failed to make any changes or long-term improvements. The circuit court found that 

petitioner “exhibited great hostility against” the DHHR, service providers, and the guardian 

which resulted in her non-compliance with services. The circuit court also found there was no 

3

The DHHR provided petitioner with extensive services in the previous case, which 

included individualized parenting and adult life skills classes. Ultimately, the children were 

returned to her custody. 

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reasonable likelihood that the conditions of abuse and neglect could be corrected in the near 

future and that it was in the children’s best interests to terminate petitioner’s parental rights. 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 

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 limiting her visitation with the 

children and that the limitation caused her failure to comply with the terms of her improvement 

period. However, petitioner fails to articulate a causal relationship. 

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). Moreover, the 

record is clear that petitioner’s willful noncompliance with services left the circuit court no 

choice but to terminate her post-adjudicatory improvement period. The circuit court heard 

testimony that petitioner refused to participate in random drug and alcohol screenings, or permit 

random pill counts. She further tested positive on at least two occasions for Valium, for which 

she did not have a prescription, and marijuana. The circuit court also heard testimony that 

petitioner was provided with waste removal services but failed to adequately utilize the services 

to correct the unsanitary conditions present at the home. 

Simply put, the circuit court’s requirement that petitioner undergo drug screening in order 

to visit the children was implemented to protect the children’s welfare and had no impact on 

petitioner’s ability to comply with the numerous services the DHHR offered that were wholly 

unrelated to visitation. Because petitioner failed to fully participate in her improvement period or 

make sufficient progress, we find no error. 

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

because she was substantially complying with the terms and conditions of her improvement 

period, despite the guardian’s “actively sabotaging” her attempts at compliance.4 However, as 

outlined above, the evidence overwhelmingly established that petitioner failed to comply with 

the terms and conditions of her improvement period. Moreover, petitioner’s argument ignores the 

requirement that the circuit court terminate her parental rights upon findings that there is no 

reasonable likelihood that the conditions of neglect or abuse can be substantially corrected and 

that termination is necessary for the children’s welfare. 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 did not meaningfully 

participate in any of the services provided to her, did not implement anything that she learned, 

and failed to make substantial changes in the home or any long-term improvements. 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 

June 7, 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 

4

There is no evidence on the record that petitioner, verbally or in writing, moved the 

circuit court to remove the guardian or that she brought any incidents of alleged misconduct to 

the circuit court’s attention. 

4