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STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS

In re E.V., S.V., and J.M. 

No. 18-0475 (Kanawha County 17-JA-290, 17-JA-291, and 17-JA-292)

MEMORANDUM DECISION 

Petitioner Mother F.V., by counsel Kevin P. Davis, appeals the Circuit Court of Kanawha 

County’s April 20, 2018, order terminating her parental rights to E.V., S.V., and J.M.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 (“guardian”), Elizabeth G. 

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

supplemental appendix. On appeal, petitioner argues that the circuit court erred in terminating 

her post-dispositional improvement period and terminating her parental rights. 

 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. 

 

On July 5, 2017, the DHHR filed an abuse and neglect petition alleging that petitioner 

abused and neglected the children. At that time, petitioner was incarcerated and the children 

resided with petitioner’s sister, S.M., who was also named in the petition. The DHHR received 

multiple referrals alleging physical abuse by S.M.’s boyfriend; medical neglect; and erratic 

behavior by S.M.’s mother, who supervised the children while S.M. was at work. The DHHR 

alleged that the youngest child, S.V., was diagnosed with “failure to thrive.” However, S.M. 

failed to take the child to medical appointments to address his condition. Further, E.V. was 

hospitalized at Highland Hospital for suicidal ideations, threatening behaviors, and self-injurious 

behaviors. She was placed on Zoloft, but neither S.M. nor her mother ensured that the child took 

her medication. The DHHR also alleged that S.M. and her boyfriend engaged in domestic 

violence in the children’s presence and that the boyfriend beat S.V., leaving bruises around his 

ears, face, and the back of his head. Further, the children had excessive absences from school. 

The DHHR alleged that petitioner was aware of these issues with the children’s placement with 

                                                             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 

November 19, 2018 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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S.M., but did not address them. Lastly, the DHHR alleged that petitioner failed to provide the 

children with necessary food, clothing, supervision, and housing; failed to provide financial 

support; placed the children in risk of harm; and was not motivated to provide for the children’s 

needs. 

On October 16, 2017, the DHHR filed an amended petition alleging that during a forensic 

interview E.V. disclosed that she had seen petitioner use illegal substances in the home while 

S.V. was also present. According to the DHHR, the child was able to describe the drug use in 

detail. J.M. also disclosed that he had seen petitioner abuse substances. The DHHR noted in the 

amended petition that guardian S.M. relinquished her rights to the children. Petitioner waived her 

preliminary hearing. 

On December 14, 2017, the circuit court held an adjudicatory hearing. Petitioner was 

incarcerated but participated in the hearing by phone. The DHHR presented evidence regarding 

the abuse of the children that occurred when they were living in S.M.’s home. Evidence was also 

presented that the children disclosed to DHHR workers that petitioner abused substances in their 

presence. Petitioner testified that she was incarcerated for violating her probation and testing 

positive for amphetamines. Petitioner also testified regarding her past drug trafficking criminal 

charges. The circuit court found petitioner abused and neglected the children due to her failure, 

refusal, or inability to supply the children with necessary shelter, supervision, medical care, or 

education when that refusal, failure, or inability was not primarily caused by a lack of financial 

means on petitioner’s part. Additionally, the circuit court found that the children’s welfare and 

health were threatened due to petitioner’s use of illegal substances. Petitioner was adjudicated as 

an abusing parent. 

On January 24, 2018, the circuit court held a dispositional hearing. That same day, 

petitioner filed separate written motions for a post-adjudicatory improvement period and a postdispositional improvement period.2

 Petitioner remained incarcerated and was unable to 

participate by telephone. She was, however, represented by counsel. The circuit court granted the 

DHHR’s motion to consider all testimony and evidence presented at prior hearings. The DHHR 

presented testimony that petitioner had been incarcerated for most of the children’s lives and had 

not provided any support to them. Further, the DHHR presented testimony that petitioner had 

substance abuse issues and that she left the children in the custody of inappropriate caregivers. 

Counsel for petitioner moved the circuit court to continue the matter until April of 2018 when 

petitioner was expected to be released from incarceration; the circuit court denied that motion. 

The circuit court found that petitioner’s substance abuse, continued incarceration, and 

entrustment of her children to inappropriate guardians prevented her from being an appropriate 

parent. The circuit court further noted that petitioner was unable to provide for her children and 

that she had been unable to participate in services. The circuit court found no reasonable 

likelihood that petitioner could substantially correct the conditions of abuse and neglect in the 

near future. Based on that finding, the circuit court determined that the termination of petitioner’s 

parental rights was the least-restrictive dispositional alternative and in the children’s best 

                                                             2

It is unclear from the record whether the circuit court ruled on these motions. However, 

it is clear that the circuit court did not grant petitioner an improvement period. 
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interests. Ultimately, the circuit court terminated petitioner’s parental rights in its April 20, 2018, 

dispositional order.3

 It is from this order that petitioner appeals. 

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). Upon our review, this Court 

finds no error in the proceedings below. 

First, petitioner argues that the circuit court erred in terminating her post-dispositional 

improvement period. In support, she asserts that “there was a reasonable expectation that the 

circumstances that led to the filing of the petitions could be resolved in the near future, especially 

since [petitioner] testified that her release date was April 13, 2018.” We note, however, that 

petitioner was never granted a post-dispositional improvement period and, therefore, the circuit 

court did not err. Further, petitioner was not entitled to an improvement period. West Virginia 

Code § 49-4-610 provides that a parent may be granted an improvement period if “[t]he [parent] 

demonstrates, by clear and convincing evidence, that the [parent] is likely to fully participate in 

the improvement period.” Additionally, we have stated that “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). Although petitioner testified that she would be 

released in April of 2018, her assertion that she could correct the conditions of abuse and neglect 

after her release is purely speculative. Petitioner failed to present any evidence to demonstrate 

that she would be likely to participate in an improvement period and, therefore, the circuit court 

did not err by not granting her the same. 

Petitioner also argues that the circuit court erred in terminating her parental rights. In 

support, she contends that the termination of her parental rights was based primarily on her 

incarceration. We disagree. While petitioner asserts that her parental rights were terminated on 

the sole basis of her incarceration, the circuit court, in fact, considered several other factors in its 

decision. Petitioner also argues that the circuit court erred in terminating her parental rights 

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According to the parties, the parental rights of the children’s respective fathers were also 

terminated. The permanency plan for the children is adoption in their current placement. 
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because she did not physically abuse the children and because the evidence did not support 

abandonment of the children. However, the record contains overwhelming evidence that 

petitioner neglected the children.4

 Petitioner was often absent from the children’s lives due to her 

incarceration. Further, she failed to provide proper care and necessities such as food, clothing, 

supervision, and financial support. She also left the children in the care of individuals that she 

knew were inappropriate caretakers while she was incarcerated. While in the care of guardian 

S.M., the children were subjected to physical and emotional abuse, suffered from medical 

neglect, and witnessed domestic violence in the home. 

 

To the extent that petitioner argues that her drug use in front of the children was not 

proven by clear and convincing evidence, we agree with the circuit court’s finding that the 

DHHR proved by clear and convincing evidence that she used substances in the presence of her 

children. 

[West Virginia Code § 49-4-601(i)] requires the [DHHR], in a child abuse 

or neglect case, to prove “conditions existing at the time of the filing of the 

petition . . . by clear and convincing proof.” The statute, however, does not 

specify any particular manner or mode of testimony or evidence by which the 

[DHHR] is obligated to meet this burden. 

Syl. Pt. 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867, (1981). During the adjudicatory 

hearing, petitioner admitted that she had been under the influence of substances in front of her 

children. Further, the children disclosed during their forensic interviews that they witnessed 

petitioner using drugs. Clearly, the circuit court found the children’s disclosures credible and 

compelling proof that petitioner used substances in their presence. 

Petitioner further asserts that the circuit court erred in terminating her parental rights 

because of the bond she had with her children. This assertion is not supported by the record. In 

fact, the DHHR presented evidence that petitioner was never involved the children’s lives and 

that they lived with various family members throughout their lives while petitioner was 

incarcerated. Due to petitioner’s substance abuse issues and incarceration, it is clear that 

termination of petitioner’s parental rights was in the children’s best interests. While petitioner 

asserts that the circuit court did not make the findings necessary to terminate her parental rights, 

the circuit court did, indeed, make the necessary findings. The circuit court’s dispositional order 

clearly indicates that the circuit court found no reasonable likelihood that petitioner could 

substantially correct the conditions of abuse and neglect in the near future and that termination of 

her parental rights was in the children’s best interest. Further, based on the evidence discussed 

above, the circuit court was correct in making those findings. West Virginia Code § 49-4-

604(b)(6) provides that circuit courts are to terminate parental rights upon findings that there is 

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Pursuant to West Virginia Code § 49-1-201, a neglected child is one 

whose physical or mental health is harmed or threatened by a present 

refusal, failure or inability of the child’s parent . . . 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[.] 
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“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(c) clearly indicates that a situation where there is no reasonable likelihood that the 

conditions of abuse and neglect can be substantially corrected includes one in which the abusing 

parent “demonstrated an inadequate capacity to solve the problems of abuse or neglect on their 

own or with help.” Therefore, we find no error in the termination of petitioner’s parental rights. 

Petitioner further argues that the circuit court should have utilized a less-restrictive 

dispositional alternative. However, we have held that 

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

statutory provision covering the disposition of neglected children, W. Va. Code 

[§] 49-6-5 [now 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 W. Va. Code [§] 49-6-5(b) [now West Virginia Code 

§ 49-4-604(c)] . . . 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). For these reasons, the 

termination of petitioner’s parental rights was appropriate. 

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

April 20, 2018, dispositional order is hereby affirmed. 

Affirmed. 

ISSUED: November 19, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Elizabeth D. Walker 

Justice Tim Armstead 

Justice Evan H. Jenkins 

Justice Paul T. Farrell sitting by temporary assignment