1 

STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

State of West Virginia ex rel. J.E.H.G., 

Petitioner 

 

Vs.) No. 16-0931

Honorable Tod Kaufman, Judge of the 

Circuit Court of Kanawha County; 

West Virginia Department of Health 

and Human Resources; T.H.; and 

unknown father, 

Respondents 

 

MEMORANDUM DECISION

Petitioner J.E.H.G.,1 an infant child, by his guardian ad litem, Jennifer N. Taylor, 

petitions this Court to invoke its original jurisdiction in prohibition in this child abuse and 

neglect civil proceeding. Petitioner seeks a writ of prohibition to prevent Respondent herein, the 

Honorable Tod Kaufman, Judge of the Circuit Court of Kanawha County, from enforcing the 

September 26, 2016, order which granted Respondent Mother, T.H., a six-month postadjudicatory improvement period. Respondent Mother, by her attorney, Rebecca Stollar Johnson, 

and the Department of Health and Human Resources (“DHHR”), by its attorney, Michael 

Jackson, Assistant Attorney General, have filed responses opposing the issuance of the requested 

writ. At oral argument in this matter, however, counsel for DHHR stated that it is no longer 

recommending that J.E.H.G. be reunited with Respondent Mother. Respondent Judge filed a 

summary response. 

Upon our review of the parties’ arguments, the appendix record, and the pertinent 

authorities, we conclude the circuit court erred as a matter of law when it failed to follow West 

Virginia Code § 49-4-610(2)(B) (2015) and failed to consider the best interests of J.E.H.G. We 

therefore grant the requested writ of prohibition and remand this matter to the circuit court with 

directions to: (1) enter an order terminating the improvement period, and (2) schedule the matter 

for a dispositional hearing. Because this case presents no new or significant issues of law, we 

find this matter to be proper for disposition in a memorandum decision in accordance with Rule 

21 of the West Virginia Rules of Appellate Procedure. 

 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). 

FILED 

February 8, 2017 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
2 

Respondent Mother has had her parental rights to ten of her children terminated (or she 

relinquished those rights) in prior abuse and neglect proceedings. Respondent Mother has had 

multiple children, with multiple fathers; many of these children had unknown fathers. The prior 

abuse and neglect proceedings involved Respondent Mother’s substance abuse, abusive 

relationships, and her inability to cope with the normal demands of parenting. Respondent 

Mother has a long history of severe mental health and substance abuse problems. 

Respondent Mother gave birth to J.E.H.G. in March of 2016. Within days, the DHHR 

filed an emergency abuse and neglect petition against Respondent Mother and removed the 

infant from her custody considering the prior terminations and because of evidence that she used 

illegal drugs (methamphetamines) during her pregnancy. Respondent Mother waived her right to 

a preliminary hearing. She has had continuing supervised visitation with the child. 

The guardian ad litem appointed for J.E.H.G. was also the guardian ad litem for the last 

two children (A.B. and N.B.) removed from Respondent Mother’s care; she relinquished her 

rights to A.B. and N.B. in light of imminent termination.2

 

The circuit court held an adjudicatory hearing and Respondent Mother voluntarily 

stipulated to the allegations in the petition. The circuit court accepted her stipulation.3 The circuit 

court entered an adjudicatory order on May 31, 2016, finding clear and convincing evidence that 

J.E.H.G. was abused and neglected as defined in West Virginia Code § 49-1-201 (2015). 

 Respondent Mother filed a written motion for a post-adjudicatory improvement period in 

July of 2016, citing her compliance with services, visitation and negative drug screens. The 

DHHR did not oppose an improvement period; the guardian ad litem objected to the 

 2

Although not in the record in this case, the guardian ad litem reports that Respondent 

Mother periodically abandoned A.B. and N.B. (either at hospitals or on the steps of the DHHR), 

but then “tried her hand at parenting” through services provided by the DHHR. The guardian ad 

litem states that when the circuit court granted Respondent Mother unsupervised visits with A.B. 

and N.B., the visits went well until the night Respondent Mother placed the children (ages two 

and four years) on the steps of her porch, at night, with all of their belongings in a grocery bag; 

she allegedly called Child Protective Services to come get the children and stated she was going 

to commit suicide. The guardian ad litem asserts that A.B. and N.B. suffered devastating 

psychological damage as a result of Respondent Mother abandoning them. 

3

The appendix record before this Court is remarkably thin; there is no sworn testimony at 

any hearing. Following Respondent Mother’s stipulation, the circuit court spent the majority of 

the time at the brief adjudicatory hearing focusing on obtaining a DNA sample from the 

purported father who happened to be in the courthouse that day on a criminal matter; he turned 

out to not be the child’s father. Because the DHHR did not object to the improvement period, it 

did not submit evidence at the adjudicatory hearing on the issue of whether Respondent Mother 

was likely to fully participate in the improvement period and correct her past patterns of abuse 

and neglect. Similarly, Respondent Mother did not put forth evidence on that issue even though 

she had the burden of doing so. See W.Va. Code § 49-4-610(2)(B). 
3 

improvement period but stated she was agreeable to continued services and supervised visitation. 

Following a hearing on the matter, the circuit court granted a six-month post-adjudicatory 

improvement period and entered its order on September 26, 2016.4

 

On October 4, 2016, the petition for a writ of prohibition was filed with this Court and we 

issued a rule to show cause.5

 

 In a status update filed with this Court on January 13, 2017, the DHHR reported that 

J.E.H.G. continues to reside in the same foster home where his siblings 

[A.B. and N.B.] were adopted. The foster home reports his placement is going 

well. J.E.H.G. no longer has unsupervised visits with the respondent mother. The 

respondent mother last had an unsupervised visit with the child in November 

[2016] that was ended early at her request because she reported she could not 

handle caring for the child and wanted someone to come get him. Although the 

respondent mother continues to participate in supervised visitation with J.E.H.G., 

because of the failed unsupervised visitation in November, the [DHHR] does not 

believe the respondent mother is making substantial progress in her ability to care 

for J.E.H.G. and is not recommending that he return to her care. 

Prohibition is an appropriate remedy in cases in which the lower court has no jurisdiction 

over the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate 

powers. W.Va. Code § 53-1-1 (2016). Here, the circuit court has jurisdiction, so we look to the 

standard set out in syllabus point four of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 

S.E.2d 12 (1996): 

In determining whether to entertain and issue the writ of prohibition for 

cases not involving an absence of jurisdiction but only where it is claimed that the 

lower tribunal exceeded its legitimate powers, this Court will examine five 

 4

The circuit court set forth the following terms and conditions: 

1) Mother shall participate in parenting education; 

2) Mother shall submit to random drug screens; 

3) Mother shall participate in a psychological evaluation and follow all resulting 

recommendations; 

4) Mother shall participate in counseling; and 

5) Mother shall receive supervised visitation with her child. 

As the improvement period proceeded, however, the circuit court authorized unsupervised 

visitation between Respondent Mother and J.E.H.G. 

5

On December 1, 2016, this Court entered an Order Granting Emergency Stay and ruled 

that in accordance with the visitation schedule that was in place at the time of the filing of the 

petition for writ of prohibition, supervised visitation would take place pending the resolution of 

this matter. 
4 

factors: (1) whether the party seeking the writ has no other adequate means, such 

as direct appeal, to obtain the desired relief; (2) whether the petitioner will be 

damaged or prejudiced in a way that is not correctable on appeal; (3) whether the 

lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the 

lower tribunal’s order is an oft repeated error or manifests persistent disregard for 

either procedural or substantive law; and (5) whether the lower tribunal’s order 

raises new and important problems or issues of law of first impression. These 

factors are general guidelines that serve as a useful starting point for determining 

whether a discretionary writ of prohibition should issue. Although all five factors 

need not be satisfied, it is clear that the third factor, the existence of clear error as 

a matter of law, should be given substantial weight. 

 In State ex rel. Amy M. v. Kaufman, 196 W.Va. 251, 470 S.E.2d 205 (1996), this Court 

granted a writ of prohibition in a child abuse and neglect proceeding and recognized that “‘[o]ur 

modern practice is to allow the use of prohibition, based on the particular facts of the case, where 

a remedy by appeal is unavailable or inadequate, or where irremediable prejudice may result 

from lack of an adequate interlocutory review.’” Id. at 257, 470 S.E.2d at 211 (quoting McFoy v. 

Amerigas, Inc., 170 W.Va. 526, 532, 295 S.E.2d 16, 22 (1982)). 

Petitioner seeks a writ to prohibit the circuit court from enforcing its order granting an 

improvement period to Respondent Mother 

who had a 20-year history of abuse and neglect proceedings that resulted in ten 

(10) prior terminations or relinquishments in light of termination; where the 

Respondent Mother continued a constant pattern of drug abuse, abusive 

relationships and failure to treat her mental illness; and where there was no 

evidence that the Respondent Mother had substantially improved the conditions 

that led to the filing of any the petitions. 

The crux of Petitioner’s argument is that the circuit court’s ruling is clearly erroneous as a matter 

of law and a writ of prohibition is appropriate in order to protect the best interests of J.E.H.G. 

We find these arguments to be compelling and grant the writ. 

 

Pursuant to West Virginia Code § 49-4-610(2), 

[a]fter finding that a child is an abused or neglected child pursuant to section six 

hundred one of this article, a court may grant a respondent a [ ] [postadjudicatory] improvement period of a period not to exceed six months when: . . . 

 (B) The respondent [parent] demonstrates, by clear and convincing 

evidence, that the respondent is likely to fully participate in the improvement 

period and the court further makes a finding, on the record, of the terms of the 

improvement period. 

This Court previously has recognized that 
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[t]he goal [of an improvement period] should be the development of a program 

designed to assist the parent(s) in dealing with any problems which interfere with 

his ability to be an effective parent and to foster an improved relationship between 

parent and child with an eventual restoration of full parental rights a hoped-for 

result. The improvement period and family case plans must establish specific 

measures for the achievement of these goals, as an improvement period must be 

more than a mere passage of time. It is a period in which the [DHHR] and the 

court should attempt to facilitate the parent’s success, but wherein the parent must 

understand that he bears a responsibility to demonstrate sufficient progress and 

improvement to justify return to him of the child. 

In re Carlita B., 185 W.Va. 613, 624-25, 408 S.E.2d 365, 377 (1991). 

In response to the petition, Respondents argue generally that the circuit court was acting 

within its discretion to grant Respondent Mother a post-adjudicatory improvement period. This 

Court disagrees with Respondents’ characterization of this case as one which simply involves 

“judicial discretion.” We find the circuit court erred as a matter of law when it failed to follow 

the statutory mandates for granting a parent an improvement period when it issued its order 

without requiring Respondent Mother to go on the record and meet her threshold burden; the 

standard for granting an improvement period requires that Respondent Mother demonstrate, by 

clear and convincing evidence, that she will comply with its terms. See W.Va. Code § 49-4-

610(2)(B). As this Court has held, fulfillment of some of an improvement period’s terms without 

actual improvement of the conditions that led to the filing of the abuse and neglect petition 

simply is not enough; rather, the parent must actively remedy the conditions of abuse and neglect 

to demonstrate such improvement. See Carlita B., 185 W.Va. at 626, 408 S.E.2d at 378. Because 

the lower court violated this clear statutory mandate, and irremediable prejudice may result from 

the delays inherent in waiting until the conclusion of the improvement period and for the matter 

to be set for disposition, we find that prohibition is an appropriate remedy in this case. 

Respondent Mother has gone through several rounds of DHHR services over the years – 

a period spanning two decades – and still demonstrates her propensity to return to the conditions 

that led to the abuse and neglect findings in the previous cases. As we have long held, “when a 

parent cannot demonstrate that he/she will be able to correct the conditions of abuse and/or 

neglect with which he/she has been charged, an improvement period need not be awarded before 

the circuit court may terminate the offending parent’s parental rights.” In re Emily, 208 W.Va. 

325, 336, 540 S.E.2d 542, 553 (2000). Moreover, “[c]ases involving children must be decided 

not just in the context of competing sets of adults’ rights, but also with a regard for the rights of 

the child(ren).” Syl. Pt. 7, In Matter of Brian D., 194 W.Va. 623, 461 S.E.2d 129 (1995). This is 

so because the overarching goal in abuse and neglect proceedings is to protect the subject 

children. “Although parents have substantial rights that must be protected, the primary goal in 

cases involving abuse and neglect, as in all family law matters, must be the health and welfare of 

the children.” Syl. pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996); Syl. Pt. 8, in part, 

In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973) (“Once a court exercising proper jurisdiction 

has made a determination upon sufficient proof that a child has been neglected and his natural 

parents were so derelict in their duties as to be unfit, the welfare of the infant is the polar star by 

which the discretion of the court is to be guided in making its award of legal custody.”). 
6 

Given Respondent Mother’s extensive history with the DHHR, and her drug use while 

pregnant with J.E.H.G., it is readily apparent that an improvement period likely would only 

prolong the inevitable – the eventual removal of J.E.H.G. from the home – and further delay in 

his permanency. See W.Va. R. P. Child Abuse & Neglect Proceedings 43 (addressing expedient 

resolution of abuse and neglect proceedings). We commend the guardian ad litem’s efforts to 

protect this child and petition this Court for extraordinary relief considering the egregious facts 

of this case. 

Accordingly, we find the circuit court committed clear legal error in granting Respondent 

Mother a post-adjudicatory improvement period as she failed to put forth evidence to show she is 

able to correct the conditions of abuse and/or neglect. Moreover, we find the circuit court failed 

to adequately consider J.E.H.G.’s best interests when deciding to grant Respondent Mother a 

post-adjudicatory improvement period. 

As we said in In re Carlita B., 185 W.Va. 613, 623, 408 S.E.2d 365, 375 (1991), 

the early, most formative years of a child’s life are crucial to his or her 

development. There would be no adequate remedy at law for these children were 

they permitted to continue in this abyss of uncertainty. We have repeatedly 

emphasized that children have a right to resolution of their life situations, to a 

basic level of nurturance, protection, and security, and to a permanent placement. 

State ex rel. Amy M., 196 W.Va. at 257-58, 470 S.E.2d at 211-12. 

 For ten months now, J.E.H.G.’s future has remained uncertain. To require him to wait 

while Respondent Mother attempts to develop parenting skills that, for nearly two decades were 

almost wholly absent, is certainly not in J.E.H.G.’s best interests. See Syl. Pt. 1, in part, Carlita 

B., 185 W.Va. 613, 408 S.E.2d 365 (“Child abuse and neglect cases must be recognized as being 

among the highest priority for the courts’ attention. Unjustified procedural delays wreak havoc 

on a child’s development, stability and security.”). This is especially so when the likelihood 

appears slim to none that Respondent Mother would ultimately be successful in meeting this 

extreme challenge. See Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980) 

(“[C]ourts are not required to exhaust every speculative possibility of parental improvement . . . 

where it appears that the welfare of the child will be seriously threatened, and this is particularly 

applicable to children under the age of three years who are more susceptible to illness, need 

consistent close interaction with fully committed adults, and are likely to have their emotional 

and physical development retarded by numerous placements.”). 

For the reasons set forth above, this Court finds that the Circuit Court of Kanawha 

County erred as a matter of law when it failed to follow West Virginia Code § 49-4-610(2)(B) 

and failed to consider the best interests of J.E.H.G. by granting a post-adjudicatory improvement 

period to Respondent Mother. Because the best interests of J.E.H.G., a child of extremely tender 

age, do not support a further delay in his reaching permanency, we grant the requested writ of 

prohibition. Additionally, because the denial of an improvement period forecloses the possibility 

of reunification between J.E.H.G. and Respondent Mother, we remand this case with instructions 

to schedule this matter for a dispositional hearing. 
7 

On remand, the circuit court should be aware that the guardian ad litem reported to this 

Court that Respondent Mother has made threats to harm or kill herself and/or the child should 

her parental rights be terminated in this proceeding. The DHHR is hereby directed to investigate 

this serious allegation without delay and file a report to the circuit court. 

The Clerk of this Court is hereby directed to issue the mandate forthwith. 

Writ granted. 

ISSUED: February 8, 2017 

CONCURRED IN BY:

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker