1 

STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

In re A.S., S.S., and J.S. 

No. 22-645 (McDowell County 21-JA-44, 21-JA-45, and 21-JA-46) 

MEMORANDUM DECISION 

Petitioner Mother J.W.1 appeals the Circuit Court of McDowell County’s June 29, 2022, 

order terminating her parental, custodial, and guardianship rights to A.S., S.S., and J.S.2 Upon our 

review, we determine that oral argument is unnecessary and that a memorandum decision 

affirming the circuit court’s order is appropriate. See W. Va. R. App. P. 21. 

In July of 2021, the DHHR filed a petition alleging that the parents’ home lacked electricity 

and water. Upon investigation, Child Protective Services (“CPS”) observed the children to be dirty 

and the home in disarray, including broken windows, an extension cord running from across the 

street to power a television, and no refrigerator or stove. CPS implemented a safety plan with 

services for the parents, but petitioner tested positive for THC while subject to the plan. The 

petition also alleged, among other issues, that petitioner suffered from untreated mental health 

issues and that there was domestic violence in the home. 

During a hearing in September of 2021, the court accepted petitioner’s stipulation to 

allegations in the petition and adjudicated her of abusing and neglecting the children. The 

following month, the DHHR filed case plans outlining the steps petitioner needed to take to remedy 

the conditions of abuse and neglect. This included providing a safe and stable living environment 

for the children, refraining from abusing drugs, submitting to drug screens, addressing substance 

abuse through Family Treatment Court or outpatient counseling, participation in parenting classes, 

and weekly visits with the children. Over the next several months, petitioner refused to submit to 

a drug screen and tested positive on several occasions, including one positive screen for cocaine. 

Petitioner also submitted to a psychological evaluation, during which she blamed the father for 

preventing her from seeking therapy. Despite expressing displeasure with the father’s conduct, the 

1Petitioner appears by counsel Zachary K. Whitten. The West Virginia Department of 

Health and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey 

and Assistant Attorney General Brittany Ryers-Hindbaugh. William O. Huffman appears as the 

children’s guardian ad litem. 

2We use initials where necessary to protect the identities of those involved in this case. See 

W. Va. R. App. P. 40(e). 

FILED 

April 25, 2023 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 
2 

mother “stated that she had no reason to fear for herself at home.” The psychologist concluded that 

petitioner had poor insight and judgment and “appeared to have little understanding of the 

relationship between her emotions, cognitions, and behaviors.” Ultimately, petitioner’s prognosis 

for improvement was “poor,” given that “she is likely to terminate therapy prematurely when 

external pressures are removed because she has little insight into the cause of her problems.” 

Accordingly, the psychologist recommended that petitioner’s “exposure to her children should 

remain limited and supervised.” 

The court held a final dispositional hearing in June of 2022, during which several of 

petitioner’s service providers testified. The court heard testimony that petitioner’s drug screens 

had been negative “for some time,” although the provider who administered the screens further 

testified to petitioner’s disclosures of ongoing domestic violence. Specifically, petitioner showed 

this provider bruising on her body and stated that the father hit her. The provider advised petitioner 

that she needed to leave the father, but petitioner stated that the father prevented her from doing 

so. Over the course of the dispositional hearing, at least three providers testified to their efforts to 

assist petitioner in separating from the father. Multiple providers took petitioner to the Stop 

Abusive Family Environments (“SAFE”) domestic violence shelter, which provides shelter, meals, 

transportation, and therapeutic referrals to domestic violence victims. However, on at least three 

occasions, petitioner left the shelter and resumed her relationship with the father. According to one 

provider, petitioner would only stay at the shelter for a few days, despite being permitted to remain 

there as long as she needed. One provider explained that she and other service providers talked to 

petitioner about domestic violence “on a regular basis.” However, one provider testified that 

petitioner “took no ownership of [her] situation and that someone else was always to blame.” A 

provider also testified that petitioner threatened that she could take the children from the provider 

at any time. 

The court also heard from petitioner’s parenting and life skills provider, who testified that 

petitioner was initially receptive to mental health treatment but changed her mind because the 

father did not want her to submit to the treatment. According to this witness, CPS initiated services 

with these parents in 2019 for issues of drug abuse and domestic violence. Despite the ongoing 

nature of the domestic violence between them, the provider testified that petitioner “maintained 

that the situation would never change.” According to the provider, petitioner was aware of the 

separation process, but qualified that “it is up to [petitioner] to take the first step.” However, the 

provider testified that petitioner had “significantly regressed” since the closure of the prior CPS 

case. This provider informed the court that she would be “livid” if the children were returned to 

the parents and that the children would not be safe if the parents had access to them. 

Another parenting provider testified that petitioner’s sessions were “not good” and that she 

missed many scheduled sessions. In this provider’s opinion, petitioner made no progress during 

the proceedings, given that the provider was “unable to conduct any effective parenting sessions.” 

This provider also testified that she did not believe that petitioner desired to leave the father and 

was unwilling to get help with her problems. Finally, a CPS supervisor acknowledged that 

petitioner obtained suitable housing and had not tested positive for any illicit substance since 

March of 2022. However, this witness testified that the DHHR recommended termination of 

petitioner’s rights because of her refusal to separate from the father. 
3 

Based on the evidence, the court noted that the “housing issues appear to have been largely 

ameliorated,” although it also found that “[i]t is readily apparent that the [a]dult [r]espondents have 

no intention to sever their lengthy dysfunctional relationship for any meaningful period.” In fact, 

the court noted that the parents were holding hands during the dispositional hearing. This was in 

spite of the DHHR’s numerous admonishments to end the relationship and their offer of resources 

to effectuate petitioner’s separation from the father. Citing the mother’s repeated rejection of the 

SAFE shelter and its resources, the court found that petitioner “demonstrated a clear lack of . . . 

fortitude for long-term meaningful change.” Based on her refusal to leave the father, the court 

concluded that petitioner “continues to knowingly subject the children to [r]espondent [f]ather’s 

domestic violence, as well as threats of physical, mental, and emotional injury.” The court also 

cited petitioner’s unresolved mental health issues and the resulting impairment to her ability to 

adequately parent the children. Based on the foregoing, the court denied petitioner an improvement 

period.3 According to the court, petitioner “had ample opportunities to correct the ongoing 

conditions of abuse and neglect,” but “squandered every chance” she was given. The court further 

noted that petitioner failed to testify or present any evidence in support of her request, thereby 

failing to satisfy the burden for obtaining an improvement period. The court also concluded that 

there was no reasonable likelihood that petitioner could substantially correct the conditions of 

abuse or neglect and that termination of her rights was necessary for the children’s welfare. 

Accordingly, the court terminated petitioner’s parental, custodial, and guardianship rights to the 

children.4 It is from the dispositional order that petitioner appeals.5

On appeal from a final order in an abuse and neglect proceeding, this Court reviews the 

circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re 

Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Petitioner raises two assignments of error 

challenging the circuit court’s denial of her motions for improvement periods.6 Given that the court 

issued only one ruling addressing both motions,7 these arguments can be addressed together. 

3Petitioner actually filed two motions for improvement periods. First, she filed a motion 

for a post-adjudicatory improvement period prior to the dispositional hearing, and then she filed 

a motion for a post-dispositional improvement period after the dispositional hearing but prior to 

the issuance of the dispositional order. The court made one ruling denying petitioner’s motions. 

4The court also terminated the father’s parental, custodial, and guardianship rights to the 

children. The permanency plan for the children is adoption in their current placements. 

5On appeal to this Court, petitioner does not challenge the termination of her parental, 

custodial, and guardianship rights to the children. 

6Petitioner raises a third assignment of error challenging the circuit court’s denial of posttermination visitation. However, she fails to provide any controlling authority in regard to the 

issue, in violation of Rule 10(c)(7) of the Rules of Appellate Procedure. Accordingly, we decline 

to address this issue. 

7Petitioner asserts in her brief that the court’s failure to rule on her motion for a postadjudicatory improvement period at the adjudicatory hearing or otherwise acknowledge that the 

motion was being held in abeyance was an abuse of discretion that requires reversal. Because 
4 

According to petitioner, she was entitled to an improvement period because she acknowledged the 

conditions of abuse and neglect by stipulating to her adjudication and because she remedied her 

housing and substance abuse issues. However, petitioner ignores the ample evidence that she was 

unlikely to fully comply with an improvement period. Petitioner is correct that in order to obtain a 

post-adjudicatory improvement period, she was required to “demonstrate[], by clear and 

convincing evidence, that . . . [she was] likely to fully participate in the improvement period.” W. 

Va. Code § 49-4-610(2)(B) and (3)(B). While it is true that petitioner obtained suitable housing 

and produced negative drug screens for several months, the evidence nonetheless indicates that 

her compliance with services was lacking. This is especially true when it comes to services 

designed to remedy the issue of domestic violence in her relationship with the father. Petitioner 

cites her multiple visits to the SAFE shelter as evidence of her ongoing efforts to remedy this issue, 

but the circuit court found that her repeated return to the father evidenced a lack of intention to 

sever the relationship. This finding was based on testimony from several witnesses who did not 

believe that petitioner would end the relationship, in addition to the court’s own observation of 

petitioner holding the father’s hand during the dispositional hearing. Simply put, the evidence 

shows that petitioner failed to take advantage of the DHHR’s efforts and services designed to 

remedy the ongoing domestic violence in the home. As such, it is clear that petitioner failed to 

satisfy the burden necessary to obtain an improvement period, and we find no abuse of discretion 

in denying petitioner’s motions. See In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 

(2002) (permitting a circuit court discretion to deny an improvement period when no improvement 

is likely). 

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

29, 2022, order is hereby affirmed. 

Affirmed. 

ISSUED: April 25, 2023 

CONCURRED IN BY: 

Chief Justice Elizabeth D. Walker 

Justice Tim Armstead 

Justice John A. Hutchison 

Justice William R. Wooton 

Justice C. Haley Bunn 

petitioner fails to cite to any authority in support of this assertion, in violation of Rule 10(c)(7) of 

the Rules of Appellate Procedure, and because the court did, in fact, rule on her motions for 

improvement periods in the dispositional order, we decline to address this issue.