STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In Re: J.F. FILED 

June 2, 2014 

No. 14-0028 (Calhoun County 13-JA-1) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Foster Mother, by counsel Justin White, appeals the Circuit Court of Calhoun 

County’s December 18, 2013, order terminating her guardianship rights to J.F. 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, Tony Morgan, 

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

petitioner alleges that the circuit court erred in terminating her guardianship 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 decision is appropriate under Rule 

21 of the Rules of Appellate Procedure. 

On January 2, 2013, J.F. was bitten in the face by petitioner’s German Shepherd. The 

next day, the child reported to school employees that his injuries were due to a fall down the 

stairs. On January 4, 2013, the child changed his story and told the school staff that he was bitten 

by a dog. On the same date a Child Protective Services (“CPS”) worker investigated the child’s 

injuries. The child disclosed to the CPS worker that petitioner instructed him to say that he fell 

down the stairs. Further, the child disclosed that petitioner attempted to provide medical care for 

his injuries by applying “skin glue.” As a result of this investigation, petitioner signed a 

protection plan agreement with CPS promising to remove the two large German Shepherds from 

her home until the investigation could be completed. The same night, a CPS worker, 

accompanied by law enforcement, conducted an unannounced home visit at petitioner’s home. 

The worker discovered that petitioner failed to remove the dogs from the home and that she had 

placed the child with her parents. 

Following these incidents, the DHHR filed a petition for abuse and neglect against 

petitioner. The petition alleged that petitioner failed to seek proper medical treatment for the 

child’s injuries and failed to protect the child from dangers in the home. The circuit court held an 

adjudicatory hearing in February of 2013, and petitioner stipulated that she neglected the child. 

Thereafter, the circuit court granted petitioner a six-month post-adjudicatory improvement 

period. 

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On September 16, 2013, the circuit court held a review hearing to determine petitioner’s 

progress in her improvement period. During the review hearing, the circuit court heard testimony 

from petitioner’s in-home service provider, Holly Spencer. Ms. Spencer testified that petitioner 

complied with certain terms of the improvement period. However, Ms. Spencer testified that 

both of the dogs were still present in the home. By order entered on October 10, 2013, the circuit 

court continued petitioner’s case. 

In November of 2103, the circuit court held a dispositional hearing and heard additional 

testimony from Ms. Spencer, a supervised psychologist, and the in-camera testimony of the 

child. After considering the evidence, the circuit court terminated petitioner’s guardianship 

rights. The circuit court found that while petitioner participated in her improvement period, she 

failed to “recognize[] that the environment she created in her home created a serious danger to 

the child and seriously injured the child,” and did not make changes “in her beliefs during the 

pendency of this case.” 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 circuit court’s termination of petitioner’s 

guardianship rights because the circuit court found that there was no reasonable likelihood that 

she could substantially correct the conditions of abuse or neglect in the near future. Petitioner 

argues that she successfully completed her improvement period and remedied the conditions of 

neglect that led to the filing of this petition. 

This Court recently held that “[i]n making the final disposition in a child abuse and 

neglect proceeding, the level of a parent's compliance with the terms and conditions of an 

improvement period is just one factor to be considered. The controlling standard that governs 

any dispositional decision remains the best interests of the child.” Syl. Pt. 4, In re B.H., No. 13­

0342, 2014 WL 537757 (W.Va. Feb. 5, 2014). As previously stated, the circuit court heard 

testimony that petitioner successfully completed the terms of her improvement period. However, 

Ms. Barbara Nelson, a supervised psychologist, testified that petitioner ran her home in a “work 

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camp” manner. Ms. Nelson further recommended that petitioner “not be allowed to be a foster 

parent” based upon her admission that she “violated several of the provisions of being a foster 

parent.” The circuit court also heard testimony that the psychologist did not recommend 

reunification with petitioner. Importantly, the circuit court found that while petitioner 

“participated in the services . . . she has not recognized that the environment that she created in 

the home presented a danger to this child.” This evidence constitutes a circumstance in which 

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

corrected in the near future under West Virginia Code § 49-6-5(b)(3). Circuit courts are directed 

to terminate guardianship rights upon this finding and when termination is necessary for the 

children’s welfare pursuant to West Virginia Code § 49-6-5(a)(6). 

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

December 18, 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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