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STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS

In re H.S. 

No. 18-0681 (Putnam County 17-JA-82)

MEMORANDUM DECISION 

Petitioner Mother D.J., by counsel Shawn D. Bayliss, appeals the Circuit Court of 

Putnam County’s June 22, 2018, order terminating her parental, guardianship, and custodial 

rights to H.S.1 The West Virginia Department of Health and Human Resources (“DHHR”), by 

counsel S.L. Evans, filed a response in support of the circuit court’s order. The guardian ad litem 

(“guardian”), Maggie J. Kuhl, filed a response on behalf of the children in support of the circuit 

court’s order. On appeal, petitioner argues that the circuit court erred in denying her motion for a 

post-dispositional improvement period; terminating her parental, guardianship, and custodial 

rights; and in denying her motion for post-termination visitation. 

 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 2017, the DHHR filed a petition alleging that petitioner’s substance 

abuse negatively affected her ability to parent the child. According to the DHHR, petitioner 

exposed the child to unsafe situations and environments and failed to supply the child with the 

necessary food, clothing, shelter, supervision, medical care, and education. The DHHR also 

alleged that petitioner and the father of the child were transient and their whereabouts were 

currently unknown. The DHHR indicated that the paternal grandmother had physical custody of 

the child, but neither parent had provided her with authority to seek medical treatment for the 

child. 

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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). 

FILED 

November 21, 2018 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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The circuit court held a preliminary hearing in September of 2017. Petitioner did not 

appear, but was represented by counsel. The circuit court determined that petitioner was not 

properly served and rescheduled the preliminary hearing. Petitioner did not appear for the 

subsequent preliminary hearing in November of 2017, but was represented by counsel. The 

circuit court found that petitioner was properly served by publication. The circuit court further 

found probable cause that the child was subjected to abuse and neglect and ordered that his 

physical and legal custody remain with the DHHR. 

In December of 2017, the circuit court held an adjudicatory hearing and petitioner 

stipulated to the allegations of abuse and neglect contained in the petition. The circuit court 

adjudicated petitioner as an abusing parent. Petitioner moved for a post-adjudicatory 

improvement period and offered to enter into inpatient substance abuse treatment in Virginia. 

The circuit court held petitioner’s motion in abeyance, but ordered the DHHR to pay for 

petitioner’s inpatient treatment. The circuit court held a dispositional hearing in January of 2018, 

and petitioner renewed her motion for a post-adjudicatory improvement period. The circuit court 

granted petitioner’s motion and ordered that she comply with the DHHR’s family case plan. The 

circuit court further ordered petitioner to participate in random drug screening, long-term 

inpatient substance abuse treatment, and outpatient substance abuse treatment until long-term 

inpatient treatment was available. 

In April of 2018, the circuit court held a review hearing and the guardian moved to 

revoke petitioner’s improvement period. Petitioner did not appear for the hearing, but was 

represented by counsel. According to the guardian, petitioner discontinued her drug treatment 

and failed to communicate with the multidisciplinary team (“MDT”). Ultimately, the circuit 

court found that petitioner failed to comply with the case plan and terminated petitioner’s postadjudicatory improvement period. The case was set for a dispositional hearing. 

The circuit court held the final dispositional hearing in June of 2017 and ordered 

petitioner to drug screen at the outset of the hearing. Petitioner tested positive for benzodiazepine 

and methadone and admitted to using both substances without a valid prescription for either. 

Petitioner moved for a post-dispositional improvement period. In support, petitioner proffered 

that she experienced a substantial change in circumstances on the basis that she had stable 

housing, employment, would soon have a motor vehicle, and had rejoined a church. The DHHR 

and guardian moved to terminate petitioner’s parental rights. 

Ultimately, the circuit court found that petitioner failed to comply with her postadjudicatory improvement period. Further, the circuit court found petitioner did not demonstrate 

a substantial change in circumstances that rendered her likely to fully participate in a second 

improvement period. Accordingly, the circuit court denied petitioner’s motion for a postdispositional improvement period. Additionally, the circuit court found that petitioner habitually 

abused controlled substances to the extent that her parenting was seriously impaired and had not 

followed through with the recommended and appropriate treatment to improve her capacity for 

adequate parental functioning. Therefore, the circuit court concluded that there was no 

reasonable likelihood that petitioner could substantially correct the conditions of abuse or 

neglect. The circuit court terminated petitioner’s parental, guardianship, and custodial rights and 
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denied her motion for post-termination visitation. The circuit court memorialized its decision in 

its June 22, 2018, order. Petitioner now appeals that order.2

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, this Court 

finds no error in the proceedings below. 

 On appeal, petitioner argues that the circuit court erred in denying her motion for a postdispositional improvement period because she experienced a substantial change in 

circumstances. Petitioner asserts that she found employment, housing, and returned to church by 

the dispositional hearing and would soon have purchased a vehicle for transportation. Petitioner 

further asserts that a less-restrictive disposition than termination of parental rights would have 

been in the best interest of the child. We disagree. 

West Virginia Code § 49-4-610(3) provides that a circuit court may grant a postdispositional improvement period when “[t]he respondent moves in writing for the improvement 

period” and “demonstrates, by clear and convincing evidence, that the respondent is likely to 

fully participate in the improvement period[.]” Further West Virginia Code § 49-4-610(3)(D) 

provides that, if a respondent was previously granted an improvement period, a respondent must 

“demonstrate[] that since the initial improvement period, the respondent has experienced a 

substantial change in circumstances” and that “due to that change in circumstances, the 

respondent is likely to fully participate in the improvement period[.]” The decision to grant or 

deny an improvement period rests in the sound discretion of the circuit court. See In re M.M., 

236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia law allows the circuit court 

discretion in deciding whether to grant a parent an improvement period.”); Syl. Pt. 6, in part, In 

re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (“It is within the court’s discretion to grant an 

improvement period within the applicable statutory requirements.”). 

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The father’s parental rights were also terminated below. According to the parties, the 

permanency plan for H.S. is adoption in his relative foster placement. 
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The circuit court correctly denied petitioner’s motion for a post-dispositional 

improvement period because petitioner could not demonstrate that her change in circumstances 

made her likely to fully participate in an improvement period. In her brief, petitioner admits that 

“there is without question an absence of [petitioner’s] presence and participation during the 

pendency of her original improvement period[.]” Petitioner provides no excuse as to why she did 

not participate in the proceedings or case plan. Additionally, although petitioner asserted 

multiple changes in her lifestyle, she does not address how these changes impacted her ability to 

participate in an improvement period. Most concerning, however, petitioner continued to abuse 

controlled substances throughout the proceedings, as evidenced by her positive drug screen 

during the final dispositional hearing. Petitioner could show no change in her behavior since the 

filing of the petition. Accordingly, we find no error in the circuit court’s decision to deny 

petitioner’s motion for a post-dispositional improvement period. 

Petitioner’s lack of progress also supports the termination of her parental, guardianship, 

and custodial rights to the child. West Virginia Code § 49-4-604(b)(6) provides that a circuit 

court may terminate parental rights upon findings that “there is no reasonable likelihood that the 

conditions of neglect or abuse can be substantially corrected in the near future” and that 

termination is necessary for the welfare of the children. West Virginia Code § 49-4-604(c)(1) 

provides that there is no reasonable likelihood that 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[.]” Petitioner admitted that her substance abuse 

negatively affected her ability to parent. Yet, despite an attempt at substance abuse treatment, 

petitioner continued to abuse controlled substances. On appeal, petitioner declares that there is 

no evidence that she cannot be successfully rehabilitated into an effective parent. However, the 

record shows that petitioner refused to cooperate with rehabilitation. Further, as petitioner’s 

substance abuse remained unchecked, the child would necessarily be exposed to continued 

neglect while in her care. It is against the child’s best interests to be cared for by a neglectful 

parent. We have also held as follows: 

“Termination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, W. Va.Code [§] 

49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the 

use of intervening less restrictive alternatives when it is found that there is no 

reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code 

§ 49-4-604(c)] . . . that conditions of neglect or abuse can be substantially 

corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980). 

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). The record supports the circuit 

court’s findings that there was no reasonable likelihood petitioner could have remedied the 

conditions of abuse and neglect in the near future and that termination of her parental rights was 

in the best interest of the child. Accordingly, we find no error with the circuit court’s termination 

of petitioner’s parental, guardianship, and custodial rights. 
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 Finally, petitioner argues that the circuit court erred in denying her motion for posttermination visitation. Petitioner stresses that the allegations did not involve “active abuse,” but 

rather passive abuse due to her substance abuse addiction and homelessness. Petitioner further 

asserts that the child has a strong emotional bond with her. In regard to post-termination 

visitation, we have previously held that 

the circuit court should consider whether a close emotional bond has been 

established between parent and child and the child’s wishes, if he or she is of 

appropriate maturity to make such a request. The evidence must indicate that such 

visitation or continued contact would not be detrimental to the child’s well being 

and would be in the child’s best interest. 

Syl. Pt. 8, In re Isaiah A., in part, 228 W.Va. 176, 718 S.E.2d, 775 (2010). Further, “a close 

emotional bond generally takes several years to develop.” In re Alyssa W., 217 W.Va. 707, 711, 

619 S.E.2d 220, 224 (2005). Although petitioner asserts that she has a strong emotional bond 

with the child, she does not cite to the record in support. Rather, the record reflects that petitioner 

left her child in the care of others in order to pursue her addiction and did not visit with the child 

during her improvement period. Additionally, petitioner’s argument that she did not “actively” 

abuse her child further underscores her lack of understanding of her conduct and its effect on the 

the child. West Virginia Code § 49-1-201 provides that a neglected child is one “[w]hose 

physical or mental health is harmed or threatened by a present refusal, failure, or inability of the 

child’s parent, guardian or custodian to supply the child with necessary food, clothing, shelter, 

supervision, medical care or education[.]” This code section does not differentiate between 

“active” and “passive” forms of abuse. Petitioner admitted that her substance abuse negatively 

affected her ability to parent her child and that construes neglect under the West Virginia Code. 

Accordingly, we find no error in the circuit court’s denial of post-termination visitation. 

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

June 22, 2018, order is hereby affirmed. 

Affirmed. 

ISSUED: November 21, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Elizabeth D. Walker 

Justice Tim Armstead 

Justice Evan H. Jenkins 

Justice Paul T. Farrell sitting by temporary assignment