1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re J.C. and N.L.

No. 21-0326 (Harrison County 20-JA-16-1 and 20-JA-17-1)

MEMORANDUM DECISION

Petitioner Mother M.R., by counsel Jenna L. Robey, appeals the Circuit Court of

Harrison County’s March 25, 2021, order terminating her parental and custodial rights to N.L. 

and imposing a permanent legal guardianship for J.C.

1 The West Virginia Department of Health 

and Human Resources (“DHHR”), by counsel Patrick Morrisey and Lee A. Niezgoda, filed a 

response in support of the circuit court’s order. The guardian ad litem, Allison S. McClure, filed 

a response on the children’s behalf in support of the circuit court’s order. On appeal, petitioner 

argues the circuit court erred in denying her motion for a post-dispositional improvement period 

and terminating her parental and custodial rights to N.L.2

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 January of 2020, the DHHR filed a child abuse and neglect petition alleging that 

petitioner failed to adequately supervise then nine-year-old J.C. and two-year-old N.L., failed to 

provide suitable living conditions for the children, and exposed the children to substance abuse. 

The DHHR alleged that drug paraphernalia, broken glass, and garbage was strewn throughout

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 assigns no error to the circuit court’s decision to impose a permanent legal 

guardianship for J.C., in accordance with West Virginia Code § 49-4-604(c)(5).

FILED

November 8, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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petitioner’s home and that steak knives were found on the floor in the master bedroom. Petitioner 

admitted that she used Suboxone and “unknown pills” in the days prior to the children’s removal

and tested positive for amphetamine, methamphetamine, and marijuana the day after the children 

were removed. The DHHR alleged that, during an interview with J.C., the child disclosed that 

petitioner “hardly ever slept” and that she witnessed domestic violence between petitioner and 

the father of N.L. J.C. also disclosed that petitioner “kept her away” from her father. Petitioner 

waived her preliminary hearing. At the preliminary hearing, the circuit court returned physical

and legal custody of J.C. to her father, who had been deemed a non-offending parent.

The DHHR filed an amended petition in February of 2020, alleging that petitioner was 

scheduled to participate in seven random drug screenings after the filing of the initial petition. 

According to the DHHR, petitioner tested positive for methamphetamine, amphetamine, and

marijuana on four of those drug screens and missed the remaining three.

The circuit court convened for an adjudicatory hearing in March of 2020, and petitioner 

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

and adjudicated her as abusing parent. Petitioner moved for a post-adjudicatory improvement 

period, which was granted in June of 2020, without objection from the parties. As terms of her 

improvement period, petitioner was ordered to participate in random drug screening, parenting 

and adult life skills classes, supervised visitation with the children, and substance abuse 

treatment. Additionally, petitioner was required to obtain and maintain stable housing and 

employment.

The circuit court held the final dispositional hearing in January of 2021. Petitioner moved 

for a post-dispositional improvement period, acknowledging the need for additional services to 

remedy the conditions of neglect and abuse and asserting that she experienced a substantial

change in circumstances since the granting of her post-adjudicatory improvement period. The 

DHHR recommended that the circuit court terminate petitioner’s parental and custodial rights to 

N.L. and impose a permanent legal guardianship for J.C. The DHHR presented testimony from 

petitioner’s service providers and her DHHR case worker in support of its position. Petitioner 

also testified.

Based on the evidence presented, the circuit court found that petitioner had not 

substantially complied with the terms of her post-adjudicatory improvement period. The court 

found that petitioner missed twenty-one random drug screens during her post-adjudicatory 

improvement period. Of the drug screens she participated in, petitioner produced only one 

negative result, which was in September of 2020. Petitioner stated that she did not have a 

substance abuse problem, but the circuit court considered that she had not been participating in 

random drug screening and found that the statement was unsupported. The court found that 

petitioner did not consistently participate in her parenting classes, noting that petitioner missed 

classes “every other week or so” and did not attend any classes in November of 2020.

Nevertheless, petitioner completed the curriculum in December of 2020. In regard to supervised 

visitation, the circuit court found that petitioner missed ten of forty-four scheduled visitations 

with the children. N.L. was noted to “not respond well to having supervised visits” with 

petitioner. He “scream[ed] the entire drive to the visits if he [knew] he [was] going to a visit” and 

experienced “extreme nightmares” after visitation. However, petitioner and J.C. “appear[ed] to 
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be bonded.” The circuit court further found that petitioner did not have transportation, 

independent housing, or employment at the time of the dispositional hearing. 

The circuit court concluded that petitioner failed to prove by clear and convincing 

evidence that she was likely to fully participate in the terms of a post-dispositional improvement 

period based on her failure to fully participate in the terms of her post-adjudicatory improvement 

period and her inability to show that she experienced a substantial change in circumstances since 

her post-adjudicatory improvement period. The court reiterated that petitioner lost her housing 

and transportation during the improvement period, did not participate in drug screenings, and did 

not maintain contact with her DHHR caseworker. Accordingly, the circuit court denied 

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

Though the circuit court found that petitioner had developed a bond with the J.C., it also 

found petitioner was unable to provide for the child’s needs. The circuit court ordered disposition 

under West Virginia Code § 49-4-604(c)(5) and granted J.C.’s father full custody of the child. 

The court also granted petitioner visitation with J.C. subject to the discretion of the child’s father 

because it found that visitation with petitioner was in the child’s best interests. The circuit court 

considered that petitioner was presently unable to provide for the child’s needs, but that the child 

exhibited a bond with petitioner. 

In regard to N.L., the court found that he was young and shared no bond with petitioner, 

based on his behavior before and after supervised visitations. The circuit court concluded that 

petitioner had failed to fully comply with her post-adjudicatory improvement period and failed to 

fully remedy her substance abuse, and, therefore, there was no reasonable likelihood that the 

conditions of neglect and abuse could be substantially corrected in the near future. The court 

further found that termination of petitioner’s parental rights was necessary for N.L.’s welfare and 

in his best interests. Petitioner now appeals the circuit court’s March 25, 2021, order that denied 

her motion for a post-dispositional improvement period, and terminated her parental and 

custodial rights to N.L.3

The Court has previously held:

“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 

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J.C.’s father was deemed a non-offending parent, and the permanency plan for J.C. is to 

remain in his care. N.L.’s father’s parental rights were terminated during the proceedings. The 

permanency plan for N.L. is adoption in his current placement.
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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 denying her motion for a postdispositional improvement period. She asserts that she lost her housing and transportation during 

the proceedings and that, given more time, she could have corrected those conditions “as she had 

already addressed her substance abuse problem.” According to petitioner, these 

acknowledgements, coupled with her testimony that she would fully participate in an

improvement period, satisfied her burden of proof, and the circuit court erred in denying her 

motion. We find petitioner is entitled to no relief on appeal.

West Virginia Code § 49-4-610(3)(B) requires that, to be granted a post-dispositional 

improvement period, a parent must “demonstrate, by clear and convincing evidence, that [she] is 

likely to fully participate in the improvement period.” Further, in circumstances where a parent 

was previously granted an improvement period, the parent must prove that “since the initial 

improvement period, the [parent] has experienced a substantial change in circumstances” and 

that due to the change in circumstances, the parent “is likely to fully participate in the

improvement period.” W. Va. Code § 49-4-610(3)(D). “West Virginia law allows the circuit 

court discretion in deciding whether to grant a parent an improvement period.” In re M.M., 236 

W. Va. 108, 115, 778 S.E.2d 338, 345 (2015).

Here, we find petitioner’s argument to be unpersuasive. The circuit court found that 

petitioner failed to comply with the terms of her post-adjudicatory improvement period, which is 

compelling evidence when considering whether to grant petitioner a subsequent improvement 

period. Although petitioner asserts that she “addressed her substance abuse problem,” we note 

that there is no evidence to support this assertion in the record on appeal. Rather, the record 

provides that petitioner made similar assertions below, and the circuit court found that those 

assertions were not supported by any evidence. Furthermore, the circuit court found that 

petitioner failed to demonstrate that she experienced a substantial change in circumstances that 

rendered her likely to fully participate in an improvement period. Upon our review of the record,

we find that the circuit court’s findings are not clearly erroneous and find no error in its decision 

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

Petitioner also argues on appeal that the circuit court erred in terminating her parental and 

custodial rights to N.L. She believes that there was a reasonable likelihood that the conditions of 

neglect and abuse could be corrected in the near future and that termination was not in the child’s 

best interests. Petitioner asserts that N.L. was in a stable foster placement, and petitioner 

“believes she was compliant with services.” Therefore, she concludes, the circuit court should 

have imposed a less-restrictive dispositional alternative, such a legal guardianship pursuant to 

West Virginia Code § 49-4-604(c)(5).
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Pursuant to West Virginia Code § 49-4-604(c)(6), a circuit court may terminate a parent’s 

parental rights upon finding that “there is no reasonable likelihood that the conditions of neglect 

or abuse could be substantially corrected in the near future” and that termination is necessary for 

the welfare of the child. West Virginia Code § 49-4-604(d)(3) provides that there is no 

reasonable likelihood that the conditions of neglect or abuse could 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.

Here, petitioner failed to follow through with a reasonable family case plan designed to prevent 

further abuse and neglect of the child. As mentioned above, the circuit court found that petitioner

failed to fully participate in the terms of her post-adjudicatory improvement period and that she 

failed to remedy her substance abuse problem. Critically, petitioner cites to no evidence in the 

record to support her “belief” that she was compliant with services, and no evidence supports 

that contention. Because petitioner failed to follow through with a reasonable family case plan, 

the circuit court did not err in finding that there was no reasonable likelihood that the conditions 

of neglect or abuse could be substantially corrected in the near future. Moreover, N.L. would be 

exposed to petitioner’s substance abuse if returned to her care. Termination of petitioner’s

parental rights not only protected N.L. from further abuse, but also provided permanency for the 

child. As the circuit court noted, N.L. was a child of tender years, and this Court has held:

“[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.” Syl. Pt. 1, in part, In re 

R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4. Further, “[e]nsuring finality for these 

children is vital to safeguarding their best interests so that they may have permanency and not be

continually shuttled from placement to placement.” In re Cesar L., 221 W. Va. 249, 258, 654 

S.E.2d 373, 382 (2007). In contrast to J.C., who had bonded with petitioner and the circuit court

found that continued contact was in the child’s best interests, N.L. did not share a bond with 

petitioner and did not benefit from visitation with her. Therefore, we agree with the circuit court 

that termination of petitioner’s parental rights was necessary for N.L.’s welfare.

Finally, we have held as follows:

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

statutory provision covering the disposition of neglected children, [West Virginia 
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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 [West Virginia Code § 49-4-604(d)] . . . 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). Because the record fully 

supports a finding that there was no reasonable likelihood that the conditions of neglect and 

abuse could be substantially corrected in the near future and that termination of petitioner’s 

parental and custodial rights was necessary for the welfare of N.L., we find no error in the

proceedings below. Petitioner is entitled to no relief on appeal.

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

March 25, 2021, order is hereby affirmed.

Affirmed.

ISSUED: November 8, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton