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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re A.M. and S.R.

No. 20-0959 (Mingo County 20-JA-16 and 20-JA-17)

MEMORANDUM DECISION

Petitioner Mother A.R., by counsel Susan J. Van Zant, appeals the Circuit Court of Mingo

County’s November 6, 2020, order terminating her parental rights to A.M. and S.R.

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, Cullen C. Younger, 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 (1) adjudicating her as an abusing parent, (2) terminating her

parental rights, and (3) denying her request 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 July of 2020, the DHHR filed an abuse and neglect petition alleging that petitioner, the 

father of A.M., and petitioner’s boyfriend abused and neglected A.M. and S.R. The DHHR alleged

that it received a referral that A.M., then sixteen years old, was staying at a friend’s home with her 

boyfriend, who was alleged to be between twenty-eight and thirty years old. According to the 

petition, the referral alleged that A.M. “has had four miscarriages since she has been living with 

friends” and her boyfriend. The DHHR also alleged that petitioner “pimp[ed] out” A.M. for drug 

money and that S.R. was staying with her own friends outside the home. According to the petition, 

petitioner received $2,000 in monthly social security benefits for S.R., but the child did not receive 

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

June 22, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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any of the money for food or other basic needs. The DHHR alleged that S.R., then fourteen years 

old, asked other people for food. The DHHR further alleged that A.M. and S.R. “come and go” 

from the camper in which petitioner resided. According to the petition, petitioner and her boyfriend 

abused cocaine, marijuana, and crystal methamphetamine. The DHHR also alleged that petitioner 

and her boyfriend were using and manufacturing crystal methamphetamine inside their residence. 

According to the petition, law enforcement had been involved with the family in the past and 

petitioner’s boyfriend was a convicted felon. The DHHR further alleged that the electricity in the 

residence came from the trailer next door, which belonged to the children’s grandmother. The 

DHHR also alleged that petitioner had “four other children who were removed . . . and raised by 

grandparents.” The DHHR alleged that the referral indicated to Child Protective Services (“CPS”) 

workers that the boyfriend committed domestic violence against petitioner on multiple occasions, 

allegedly breaking her arms, causing numerous black eyes, and necessitating several visits to the 

hospital. The DHHR also alleged that petitioner had had an open CPS case since January of 2020 

and that she had failed to follow DHHR guidelines. Specifically, the DHHR alleged that petitioner 

failed to participate in drug screens, despite promising to do so. The DHHR also alleged that 

petitioner failed to visit with the children via video, stating she was unable to contact them. 

Also, according to the petition, the DHHR and law enforcement officers arrived at 

petitioner’s home on June 5, 2020, to take custody of the children. However, the DHHR alleged 

that neither petitioner, the boyfriend, nor the children were present. The DHHR alleged that 

petitioner’s sister was present nearby and stated that no one was inside the residence, she did not 

have a key to the camper, and that she had not seen petitioner in three to four days. According to 

the petition, the camper was unlocked, and, upon entry and investigation, the CPS worker and law 

enforcement observed drug paraphernalia on a countertop alongside vials that had contained 

heroin, nonprescribed Suboxone, and white residue powder inside a tin with glass pipes. After 

being located in the grandmother’s camper next door, petitioner denied knowledge of the drugs or 

drug paraphernalia. According to the petition, petitioner claimed that the boyfriend alone owned 

the camper. The DHHR alleged that the boyfriend had an outstanding warrant and was arrested at 

the scene. The CPS worker and law enforcement officers continued to search for the children. The 

DHHR alleged that S.R. was located in another county after she reached out to a teacher to say 

that she “wastired of being forced to hide and mov[e] from place to place.” The child also indicated 

she was afraid to resume living with petitioner. According to the petition, A.M. was located at a 

gas station in another county several weeks later and was transported to the DHHR to be placed 

with her sister. 

The circuit court held a preliminary hearing in July of 2020 wherein petitioner failed to 

appear but was represented by counsel. At the hearing, a CPS worker testified that the DHHR had 

an open investigation into petitioner since January of 2020 that included reports of domestic 

violence, and the children being unfed and constantly shuffled from place to place. The CPS 

worker testified that petitioner told her where S.R. was living. However, the CPS worker testified 

that when she investigated that location, she was advised that the child had not lived there in weeks 

and that she had left no phone number. The CPS worker also testified that there were multiple 

reports of domestic violence in front of the children and that the children had spoken about 

witnessing the incidents of domestic violence. The CPS worker also testified that S.R. informed 
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her she was tired of living in temporary homes and lacking a stable life. The circuit court found 

probable cause to believe that petitioner and the boyfriend abused and neglected the children and 

granted the DHHR legal and physical custody of the children. After the hearing, petitioner filed a 

motion for an improvement period and denied that she had abused or neglected the children. 

The circuit court held an adjudicatory hearing in August of 2020 wherein petitioner failed 

to appear but was represented by counsel. The DHHR moved for the circuit court to take judicial 

notice of prior testimony from the preliminary hearing as well as the court’s findings of fact and 

conclusions of law. The circuit court granted the DHHR’s motion and took judicial notice of all 

prior testimony and findings. The guardian informed the circuit court that S.R. was self-harming 

and had threatened to commit suicide, that A.M. was in a relationship with a twenty-six-year-old 

married man, and that the children’s therapist had advised her that she could not adequately address 

the children’s needs. In response, the guardian requested that the circuit court place the children in 

residential treatment for their own safety. The circuit court granted the guardian’s request. Based 

on the evidence, the circuit court found that the children were abused and neglected and that 

petitioner and her boyfriend had abused the children by failing to protect them. 

The next month, the guardian filed a report recommending the termination of petitioner’s 

parental rights. According to the report, A.M. admitted that she was aware of domestic violence in 

the home and that petitioner’s boyfriend had hit her on one occasion two years ago. A.M. also 

admitted that she was in a relationship with an older married man and hoped to move in with him 

and take care of his children when she turned eighteen years old. According to the report, S.R. 

claimed that petitioner would neglect to feed her, throw objects at her, and punch and slap her. 

Additionally, S.R. claimed that petitioner left cocaine on a table in their home and that petitioner 

used methamphetamine and heroin. According to the report, petitioner’s boyfriend would also hit 

S.R. The child stated she was afraid of both petitioner and the boyfriend. Finally, S.R. claimed that 

petitioner would care for A.M. but would not provide for her.

The circuit court held a final dispositional hearing in September of 2020 wherein petitioner 

failed to appear but was represented by counsel. The DHHR moved the circuit court to take judicial 

notice of all prior testimony, findings of fact, and conclusions of law; the court granted that motion. 

Next, a CPS worker testified that it recommended termination of petitioner’s parental rights

because petitioner failed to comply with the DHHR. According to the worker, the DHHR had 

offered petitioner various services, including adult life skills classes, individualized parenting, a 

psychological assessment, and drug screening. The worker testified that petitioner was not 

compliant with these services. At the conclusion of the hearing, the circuit court denied petitioner’s 

motion for an improvement period.

In light of the evidence presented at the dispositional hearing, the circuit court found that 

petitioner was unwilling or unable to correct the conditions of abuse and neglect that necessitated 

the removal of the children. Based upon this evidence, the circuit court found that there was no 

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

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

2 The circuit court also denied petitioner post-termination visitation with the children. The 

circuit court entered an order reflecting its decision on November 6, 2020. Petitioner appeals from 

this order.

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). 

First, petitioner argues that the circuit court erred in adjudicating her as an abusing and 

neglecting parent. According to petitioner, the DHHR “failed to make any allegations against her 

that would lead to the termination of parental rights.” Specifically, petitioner argues that no 

evidence was presented that petitioner abused her children or that she could not substantially 

correct any deficiencies. We disagree.

We have previously held as follows:

At the conclusion of the adjudicatory hearing, the 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 . . . . The findings must be based upon 

conditions existing at the time of the filing of the petition and proven by clear and 

convincing evidence.

In re F.S., 233 W. Va. 538, 544, 759 S.E.2d 769, 775 (2014). This Court has explained that “‘clear 

and convincing’ is the measure or degree of proof that will produce in the mind of the factfinder a 

firm belief or conviction as to the allegations sought to be established.” Id. at 546, 759 S.E.2d at 

777 (citation omitted). However, “the clear and convincing standard is ‘intermediate, being more 

than a mere preponderance, but not to the extent of such certainty as is required beyond a 

reasonable doubt as in criminal cases.’” Id. (citation omitted). West Virginia Code § 49-1-201 

 2The father of A.M. had his parental rights terminated below. The father of S.R. is deceased. 

According to the parties, the permanency plan for the children is adoption in their current foster 

home. 
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defines an “abusing parent” as a “parent . . . whose conduct has been adjudicated by the court to 

constitute child abuse or neglect as alleged in the petition charging child abuse or 

neglect.”Additionally, pursuant to West Virginia Code § 49-1-201, a neglected child means a child 

whose

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, when that 

refusal, failure, or inability is not due primarily to a lack of financial means on the 

part of the parent, guardian, or custodian.

Having reviewed the record, we find that sufficient evidence existed to adjudicate 

petitioner as an abusing and neglecting parent of the children. The circuit court took judicial notice 

of evidence presented at the preliminary hearing, which indicated that the DHHR had had an open

investigation into petitioner since January of 2020 that included reports that the children were 

unfed and constantly shuffled from one home to another. According to the CPS worker’s 

testimony, petitioner and her boyfriend also abused cocaine, marijuana, and crystal 

methamphetamine. The DHHR put on evidence that petitioner and her boyfriend were using and 

manufacturing crystal methamphetamine inside their residential camper. The CPS worker testified 

that there were multiple reports of domestic violence in front of the children and that the children 

had disclosed witnessing incidents of domestic violence. At the adjudicatory hearing, the guardian 

informed the circuit court that S.R. was self-harming and had threatened to commit suicide as a 

result of the trauma she had suffered. The guardian also informed the circuit court that A.M. was 

in a relationship with a twenty-six-year-old married man. In response, the guardian requested the 

circuit court allow the children to be placed in residential treatment for their own safety.

Moreover, petitioner failed to appear in person for her adjudicatory hearing and produced 

no contradictory evidence at the adjudicatory hearing to rebut the allegations against her. 

Because the purpose of an abuse and neglect proceeding is remedial, where 

the parent or guardian fails to respond to probative evidence offered against him/her 

during the course of an abuse and neglect proceeding, a lower court may properly 

consider that individual’s silence as affirmative evidence of that individual’s 

culpability.

Syl. Pt. 2, W. Va. Dep’t of Health & Human Res. ex rel. Wright v. Doris S., 197 W. Va. 489, 475 

S.E.2d 865 (1996). Viewing the record in its entirety, we find that the circuit court did not err in 

adjudicating petitioner as an abusing parent based on the clear and convincing evidence that she 

failed to supervise, protect, or provide for the children.

Next, petitioner argues that the circuit court erred in terminating her parental rights rather 

than granting her a less-restrictive disposition because it was in the best interests of the children to 

have their mother in their lives. We find no error in the circuit court’s termination of petitioner’s 

parental rights. 
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Pursuant to West Virginia Code § 49-4-604(c)(6), circuit courts are directed to terminate 

parental rights upon finding 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 

children’s welfare. West Virginia Code § 49-4-604(d) defines “[n]o reasonable likelihood that 

[the] conditions of neglect or abuse can be substantially corrected” as follows: “the abusing 

[parent] . . . ha[s] demonstrated an inadequate capacity to solve the problems of abuse or neglect 

on [his] own or with help.” Further, we have previously held that

[i]n order to remedy the abuse and/or neglect problem, the problem must 

first be acknowledged. Failure to acknowledge the existence of the problem, i.e., 

the truth of the basic allegation pertaining to the alleged abuse and neglect or the 

perpetrator of said abuse and neglect, results in making the problem untreatable and 

in making an improvement period an exercise in futility at the child’s expense.

In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted).

Here, petitioner’s parental rights were terminated because she could not ensure the safety 

of the children. While petitioner argues that she had no prior history of abuse and neglect petitions 

and that the children denied any abuse to the DHHR, she does not dispute abusing controlled 

substances or failing to provide the children a safe and suitable home. Further, contrary to 

petitioner’s claims, the record reflects that at least one of the children did make disclosures of 

abuse and neglect. A CPS worker testified at the preliminary hearing that S.R. disclosed that she 

was “tired of being forced to move” and lacked a normal life. According to the guardian’s report, 

S.R. also disclosed that petitioner failed to provide her food and slapped and punched her. Finally, 

the child disclosed that petitioner would use controlled substances such as cocaine, 

methamphetamine, and heroin, and leave some of the drugs throughout the residence. 

Petitioner denies these claims and contends that she was a victim of domestic violence by 

her boyfriend and tried to protect the children from his abuse. However, the record reflects that 

petitioner failed to safely house the children and lacked knowledge of their whereabouts. The 

DHHR also put on evidence that petitioner continued to reside with the abusive boyfriend, made 

no attempts to separate herself from him, and participated in drug use with him. Further, petitioner 

failed to participate in any services offered by the DHHR to remedy the conditions of abuse and 

neglect, including her allegations of domestic violence. Petitioner briefly argues on appeal that the 

COVID-19 pandemic led to fewer services being available and caused her difficulty in accessing 

services. However, petitioner provides no support for this assertion on appeal and failed to raise 

any such concerns during the proceedings below. 

Petitioner also failed to appear before the circuit court for any scheduled hearings, 

signifying her lack of participation in the proceedings. Additionally, the circuit court heard 

testimony that petitioner missed nearly all of her visits with the children, except for a single visit 

with S.R. after the child contemplated suicide. “We have previously pointed out that the level of 

interest demonstrated by a parent in visiting his or her children while they are out of the parent’s 

custody is a significant factor in determining the parent’s potential to improve sufficiently and 
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achieve minimum standards to parent the child.” In re Katie S., 198 W. Va. 79, 90 n.14, 479 S.E.2d 

589, 600 n.14 (1996) (citations omitted). Finally, petitioner continues to deny that she abused and 

neglected the children at any point in the proceedings, despite the ample evidence and the circuit 

court’s findings to the contrary. As set forth repeatedly above, petitioner’s failure to acknowledge 

the conditions at issue in his case have rendered them uncorrectable. In re Timber M., 231 W. Va. 

at 55, 743 S.E.2d at 363 (“Failure to acknowledge the existence of the problem, i.e., the truth of 

the basic allegation pertaining to the alleged abuse and neglect . . . , results in making the problem 

untreatable.”).

Based on the foregoing, we find no error in the circuit court’s refusal to grant petitioner a 

less-restrictive alternative than the termination of her parental rights, given that we have previously 

held that 

“[t]ermination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, [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 [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). As such, we find no error in the 

circuit court’s termination of petitioner’s parental rights.

Finally, petitioner argues that the circuit court erred in denying her motion for posttermination visitation because “there is a substantial bond” between her and the children from a 

lifetime of parenting. We find petitioner’s arguments unavailing. 

In regard to post-termination visitation, we have previously held that

“[w]hen parental rights are terminated due to neglect or abuse, the circuit 

court may nevertheless in appropriate cases consider whether continued visitation 

or other contact with the abusing parent is in the best interest of the child. Among 

other things, 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 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. 5, In re Christina L., 194 W.Va. 

446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002). Here, the circuit court found 

that it was not in the children’s best interests to grant visitation. Contrary to petitioner’s assertions, 

the record does not support that there is a substantial bond between her and the children, especially 

in regard to S.R., who stated she was afraid to live with petitioner. Further, petitioner was still 
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abusing drugs and failed to exercise visitation with the children during the proceedings. 

Accordingly, we find no error in the circuit court’s denial of petitioner’s motion for posttermination visitation with the children. 

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

November 6, 2020, order is hereby affirmed.

Affirmed.

ISSUED: June 22, 2021 

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

NOT PARTICIPATING:

Justice John A. Hutchison