STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

In re: S.B., J.B., and C.M. 

May 23, 2016 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

No. 15-1016 (Braxton County 14-JA-71, 14-JA-72, & 14-JA-73) OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother S.B., by counsel Daniel K. Armstrong, appeals the Circuit Court of 

Braxton County’s October 14, 2015, order terminating her parental rights to one-year-old S.B., 

three-year-old J.B., and seven-year-old C.M. 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 and a supplemental response. The guardian ad litem (“guardian”), David 

Karickhoff, filed a response on behalf of the children also in support of the circuit court’s order 

and also filed a supplemental response. On appeal, petitioner argues that the circuit court erred in 

denying the DHHR’s motion to withdraw its motion to terminate her parental rights and extend 

her improvement period. Petitioner also argues that the circuit court erred in terminating her 

parental rights without a proper family case plan and improperly relied upon evidence that was 

not admitted during the dispositional hearing.1 

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 October of 2014, the DHHR filed an abuse and neglect petition against petitioner 

alleging that she abused drugs. In support of the petition, the DHHR alleged that petitioner tested 

positive for opiates on October 22, 2014, and gave birth to S.B., who also tested positive for 

opiates. Furthermore, petitioner admitted that she ingested one hydrocodone approximately two 

days prior to the birth of S.B.2 In November of 2014, the circuit court held an adjudicatory 

hearing during which petitioner stipulated to certain allegations in the amended petition. 

Specifically, petitioner admitted that she and S.B. tested positive for opiates on October 22, 

1

We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and 

recodified during the 2015 Regular Session of the West Virginia Legislature. The new 

enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and 

became effective ninety days after the February 19, 2015, approval date. In this memorandum 

decision, we apply the statutes as they existed during the pendency of the proceedings below. 

2

The DHHR filed an amended petition for abuse and neglect adding two additional 

children and additional allegations that are not at issue in this memorandum decision. 

1


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2014, that she tested positive for marijuana on July 9, 2014, and that she took one hydrocodone 

pill approximately two days before S.B. was born. Accordingly, the circuit court found that 

petitioner was an “abusive and neglectful” parent.3 

Thereafter, the circuit court held a dispositional hearing in January of 2015, during which 

it heard testimony from a Child Protective Services (“CPS”) worker.4 Based upon the worker’s 

testimony, the circuit court granted petitioner a six-month improvement period. The terms and 

conditions of petitioner’s improvement period required her, in part, to participate in substance 

abuse treatment, to submit to random drug and alcohol screens, and to remain drug and alcohol 

free. After approximately five months of services, the DHHR filed a court summary which 

recommended that the children be transitioned back into petitioner’s care because she “has 

complied with the terms and condition of her improvement period” and has screened negative on 

all drug tests.5 Subsequently, the DHHR filed a second court summary which stated that the 

“DHHR would not object to an extension of the improvement period, if the court deems 

appropriate,” because petitioner produced one positive and one diluted drug screen. 

Consequently, the DHHR filed a motion to terminate petitioner’s parental rights based upon her 

single positive drug screen. 

In September of 2015, the circuit court held a dispositional hearing. A CPS worker 

testified that despite its motion to terminate petitioner’s parental rights, the DHHR was no longer 

seeking termination because petitioner was compliant with services, is willing and able to remain 

drug free, entered outpatient drug therapy on her own volition, has a strong bond with the 

“children,” continues to make improvements, and has remained drug-free since her lone positive 

test, with the exception of one diluted screen on August 7, 2015. Petitioner testified that she was 

attending Alcohol and Narcotics Anonymous meetings and learning from her outpatient drug 

treatment. At the conclusion of the hearing, the circuit court found that petitioner was unwilling 

to cooperate with services and terminated her parental rights. This appeal followed. 

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, 

3

The circuit court did not enter an adjudicatory order until June 22, 2015. We remind 

circuit courts that pursuant to Rule 27 of the Rules of Procedure for Child Abuse and Neglect 

Proceedings, “[t]he [circuit] court shall enter an order of adjudication, including findings of fact 

and conclusions of law, within ten (10) days of the conclusion of the hearing[.]” 

4

The parties did not include a copy of the transcript from the dispositional hearing as part 

of the appendix record. 

5

Thereafter, the children were physically placed back in petitioner’s care. 

2


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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). 

On appeal, petitioner argues that the circuit court erred in denying the DHHR’s motion 

to withdraw its motion to terminate her parental rights. Stated another way, petitioner argues that 

the circuit court erred in denying her motion to extend her improvement period. West Virginia 

Code § 49-4-610(6) provides that “[a] [circuit] court may extend any improvement period . . . 

when the [circuit] court finds that the respondent has substantially complied with the terms of the 

improvement period[.]”6 We have also held that the word “may” is permissive and connotes 

discretion. See Gebr. Eickhoff Maschinenfabrik Und Eisengieberei mbH v. Starcher, 174 W.Va. 

618, 626 n. 12, 328 S.E.2d 492, 500 n. 12 (1985) (“An elementary principle of statutory 

construction is that the word ‘may’ is inherently permissive in nature and connotes discretion.” 

(citations omitted)). 

Upon review of the record, we find no error in the circuit court’s denial of extending 

petitioner’s improvement period. In this case, the record establishes that petitioner failed to meet 

her burden for an extension of her improvement period. It is undisputed that petitioner failed one 

drug test, shortly after the DHHR placed the children back in her care and produced one diluted 

drug screen in violation of the terms and conditions of her improvement period. For these 

reasons, it was not error for the circuit court to deny petitioner an extension of her improvement 

period. 

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

without filing a proper family case plan pursuant to Rule 28(d) of the Rules of Procedure for 

Child Abuse and Neglect Proceedings.7 With regard to the Rules of Procedure for Child Abuse 

and Neglect Proceedings, this Court has stated that 

“[w]here it appears from the record that the process established by the 

Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes 

for the disposition of cases involving children [alleged] to be abused or neglected 

has been substantially disregarded or frustrated, the resulting order . . . will be 

vacated and the case remanded for compliance with that process and entry of an 

6

Because the dispositional hearing in this matter took place on September 3, 2015, which 

is after the day the new version of West Virginia Code §§ 49-1-101 through 49-7-304 went into 

effect, the Court will apply the revised versions of those statutes on appeal. 

7

Rule 28 requires the DHHR to file a report containing specific information when seeking 

the termination of parental rights, such as “a description of the efforts made by the [DHHR] to 

prevent the need for placement . . . .” 

3


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621, 

558 S.E.2d 620 (2001). 

Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). 

While petitioner is correct that the DHHR failed to file an amended family case plan 

seeking termination, we do not find reversible error on this issue under the specific limited 

circumstances of this case. The record on appeal in this case is clear that the DHHR filed a 

motion to terminate petitioner’s parental rights on August 3, 2015, which was one month before 

the final dispositional hearing. West Virginia Code § 49-4-601, clearly provides that “[i]n any 

proceeding . . . the party . . . having custodial or other parental rights . . . to the child [must] be 

afforded a meaningful opportunity to be heard, including the opportunity to testify and to present 

and cross-examine witnesses.” Here, petitioner was provided with notice well in advance of the 

dispositional hearing that the DHHR was seeking termination of her parental rights, testified 

during the dispositional hearing, and was permitted to cross-examine witnesses. For these 

reasons, we cannot find that the Child Abuse and Neglect Rules or statutory framework have 

been substantially disregarded or frustrated such that reversal is required. Therefore, for the 

foregoing reasons, we find no reversible error in this regard. 

Lastly, petitioner argues that the circuit court erred in considering the evidence of her 

failed and diluted drug screen when the results were not admitted during the dispositional 

hearing. Upon review of the appendix record, we find no error because petitioner’s argument 

lacks merit. The record is devoid of any reference that the circuit court relied upon the physical 

results of petitioner’s drug screens. It is undisputed that petitioner testified that she failed a drug 

test and submitted a diluted drug screen, which the circuit court properly considered. As such, we 

find no error in this regard. 

For the foregoing reasons, we find no error in the circuit court’s October 14, 2015, order, 

and hereby affirm the same. 

Affirmed. 

ISSUED: May 23, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Robin Jean Davis 

4