1 

STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS

In Re: G.W., P.W., A.W., & B.W. 

No. 15-0465 (Mineral County 13-JA-12 through 13-JA-15)

MEMORANDUM DECISION

 Petitioner Father, by counsel Agnieszka Collins, appeals the Circuit Court of Mineral 

County’s December 23, 2014, order terminating his parental rights to eleven-year-old G.W., 

nine-year-old P.W., six-year-old A.W., and five-year-old B.W. The Department of Health and 

Human Resources (“the DHHR”), by counsel, Lee Niezgoda, filed a response in support of the 

circuit court’s order. The guardian ad litem, Zelene Harman, filed a response on behalf of the 

children also in support of the circuit court’s order. On appeal, petitioner argues that the circuit 

court erred in denying his motion for custody, adjudicating him as a neglectful parent, 

terminating his post-adjudicatory improvement period, and terminating his parental rights.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 March of 2013, the DHHR received a referral from the Mineral County Sheriff’s 

Office after deputies took emergency custody of the children after responding to two domestic 

violence 911 calls at the home of the children’s mother, D.W., and her then-current boyfriend, 

D.L. When the deputies arrived at D.W.’s home she was “unresponsive” and the children were 

running around the home unsupervised. D.L. fled the residence and was considered to be armed 

and dangerous. During the investigation, G.W. and P.W. told investigators that they witnessed 

repeated acts of domestic violence and drug use. G.W. and P.W. also told investigators that D.W. 

exposed them to sexual activities. G.W. and P.W. further stated that D.L. abused them and A.W. 

and B.W. Finally, D.W. admitted to investigators that she abused alcohol and that the children 

were unsafe when the deputies took emergency custody of the children. Several days later, the 

DHHR filed a petition for abuse and neglect based upon the referral. Petitioner was initially 

named as a non-abusing father because he lived in Allentown, Pennsylvania. 

 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. 

FILED 

October 20, 2015 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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 On June 18, 2013, the circuit court held a preliminary hearing. Petitioner participated by 

telephone and waived his right to this preliminary hearing. The circuit court granted petitioner’s 

motion for telephone visitation only and the DHHR’s motion to temporarily separate the siblings. 

A multidisciplinary team (“MDT”) was conducted following the preliminary hearing during 

which petitioner admitted that he had not seen his children since March of 2013, and that he is 

required to register as a sex offender.2

In August of 2013, petitioner moved for custody of his children, and his motion was 

opposed by the DHHR and the guardian because petitioner lived in Pennsylvania; has not had 

consistent contact with the children; and may not be able to financially, emotionally, or 

physically support the children. By order entered August 28, 2013, the circuit court deferred 

ruling on petitioner’s motion pending a psychological evaluation. Another MDT meeting was 

conducted in January of 2014. Petitioner indicated to the MDT that he moved back to West 

Virginia, but that he was unemployed and homeless. The guardian recommended that the DHHR 

file an amended petition to include allegations of abuse and neglect against petitioner. 

In February of 2014, the DHHR filed an amended petition for abuse and neglect against 

petitioner alleging that he failed to protect his children by leaving them in D.W.’s care. The 

petition also alleged that petitioner abandoned his children. 

In May of 2014, petitioner stipulated that he abused and neglected the children based 

upon his failure to protect the children from D.W. and D.L., and that he was unable or unwilling 

to take the appropriate steps to remedy those issues. Thereafter, the circuit court granted 

petitioner a post-adjudicatory improvement period. The circuit court held a series of status 

hearings on the progress of petitioner’s post-adjudicatory improvement period. The parties 

proffered to the circuit court that petitioner complied with the terms of his improvement period. 

As such, the circuit court continued petitioner’s post-adjudicatory improvement period. 

In November of 2014, the circuit court held a dispositional hearing. The circuit court 

heard testimony from several of petitioner’s service providers. Petitioner’s parenting provider 

testified that petitioner was arrested because he failed to register as a sex offender. The provider 

further testified that despite the fact that petitioner attended all of his parenting classes, he failed 

to implement the skills to address the underlying issues of neglect, and failed to understand how 

to protect his children from future harm. Petitioner’s visitation supervisor testified that petitioner 

failed to properly supervise the children during visitation. Additional testimony corroborated that 

petitioner failed to accomplish the goals of his improvement plan. The circuit court continued the 

dispositional hearing until December 12, 2014. The parties presented additional testimony during 

the continued dispositional hearing. A Child Protective Services worker testified that petitioner’s 

housing situation was uncertain. A Court Appointed Special Advocates (“CASA”) worker 

testified that despite participating in parenting classes, petitioner has “been unable to control or 

parent his children effectively” and “incapable” of parenting his children. Based on the evidence 

presented, the circuit court found that petitioner failed to adequately solve the problems of abuse 

 2

Petitioner was convicted of a third-degree sexual offense with a female victim between 

the ages of thirteen and seventeen in the State of Maryland. Petitioner served approximately 

eight months in prison. Petitioner was then given four years of probation. 
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despite the lengthy improvement period. Given those findings, the circuit court concluded that 

petitioner could not substantially correct the conditions of neglect in the near future and that 

termination was necessary for the children’s welfare. By order entered December 23, 2014, the 

circuit court terminated petitioner’s parental rights to the children. It is from this order that 

petitioner now 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). 

On appeal, petitioner first assigns error to the circuit court’s order denying his motion for 

custody of the children. While petitioner asserts that he was a non-abusing parent, and, therefore, 

entitled to the physical and legal custody of the child, we have explained that 

“[a] parent has the natural right to the custody of his or her infant child 

and, unless the parent is an unfit person because of misconduct, neglect, 

immorality, abandonment or other dereliction of duty, or has waived such right, or 

by agreement or otherwise has transferred, relinquished or surrendered such 

custody, the right of the parent to the custody of his or her infant child will be 

recognized and enforced by the courts.” Syl. Pt. [sic] Whiteman v. Robinson, 145 

W.Va. 685, 116 S.E.2d 691 (1960). 

Syl. Pt. 1, Honaker v. Burnside, 182 W.Va. 448, 388 S.E.2d 322 (1989). Moreover, the guiding 

principle in all matters concerning child custody is the best interests of the child. “‘Although 

parents have substantial rights that must be protected, the primary goal in cases involving abuse 

and neglect, as in all family law matters, must be the health and welfare of the children.’ Syl. Pt. 

3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W .Va. 

44, 743 S.E.2d 352 (2013); “[t]he best interests of the child[ren] is the polar star by which 

decisions must be made which affect children.” Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 

387 S.E.2d 866, 872 (1989) (internal citations omitted). 
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Upon our review of the record on appeal, the Court finds no error in the circuit court’s 

order denying petitioner’s motion for custody of the child. The evidence before the circuit court 

established that petitioner was an unfit parent due to the uncontested fact that petitioner had not 

seen his children for approximately five months prior to making his motion for custody, that he 

was a registered sex offender, and that he had never been the children’s full-time custodial 

parent. Importantly, a home study revealed that petitioner was “not physically prepared to 

assume custody of the children” and that petitioner expected to be homeless in the near future. 

Based on the facts of this case, we find no error in this regard. 

Next, petitioner argues that the circuit court erred in adjudicating him as a neglectful 

parent. Simply put, there is no merit to petitioner’s argument that the circuit court erred in 

adjudicating petitioner as a neglectful parent. In support of this assignment of error, petitioner 

argues that there was not clear and convincing evidence that he neglected his children. West 

Virginia Code § 49-1-3(11)(A) a “‘neglected child’ means a child [w]hose 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 . . . supervision[.]” It is undisputed that petitioner freely and 

voluntarily stipulated that he neglected his children based upon his failure to protect his children 

from D.W. and D.L., and that he was unable or unwilling to take the appropriate steps to remedy 

those issues. See Rule 26 of the Rules of Procedure for Child Abuse and Neglect Proceedings 

(stating that “[b]efore accepting a stipulated . . . adjudication, the court shall determine that the 

parties . . . voluntarily consent, and that the stipulation . . . meets the purposes of these rules and 

controlling statute and is in the best interests of the child”). Based on petitioner’s voluntary 

stipulation, we find no error. 

Next, petitioner argues that the circuit court erred in terminating his post-adjudicatory 

improvement period. Petitioner’s argument on this issue ignores controlling statutory law 

regarding abuse and neglect proceedings. Specifically, West Virginia Code § 49-6-12(b) grants 

circuit courts discretion in granting post-adjudicatory improvement periods, but specifically 

states that such improvement periods are “not to exceed six months[.]” In the instant matter, 

petitioner’s improvement period began on May 27, 2014, and expired on November 27, 2014. 

The circuit court appropriately continued petitioner’s improvement period based upon his 

compliance until its natural expiration on November 27, 2014. Thereafter, the circuit court held 

its final dispositional hearing past the improvement period’s expiration on December 12, 2014. 

Simply put, the circuit court did not terminate petitioner’s improvement period, it naturally 

expired on November 27, 2014. 

Moreover, West Virginia Code § 49-6-12(g) provides that 

[a] court may extend any improvement period granted . . . for a period not to 

exceed three months when the court finds that the [parent] has substantially 

complied with the terms of the improvement period; that the continuation of the 

improvement period will not substantially impair the ability of the department to 

permanently place the child; and that such extension is otherwise consistent with 

the best interest of the child. 

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 
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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)). While 

petitioner argues that he substantially complied with the terms and conditions of his 

improvement period, that is just one factor to be considered. See Syl. Pt. 4, in part, In re: B.H. 

and S.S., 233 W.Va. 57, 754 S.E.2d 743 (2014) (holding that “the level of a parent’s compliance 

with the terms and conditions of an improvement period is just one factor to be considered. The 

controlling standard that governs any dispositional decision remains the best interests of the 

child”). While it is true that petitioner completed parenting classes, the record is clear that 

petitioner failed to implement skills taught in those classes, failed to properly supervise the 

children during supervised visitation, gave G.W. a MP3 player loaded with music that contained 

explicit language, and failed to acknowledge how he could prevent future neglect. Further, as 

noted above, whether to grant a motion for an extension of an improvement period is a matter 

within the sound discretion of the circuit court. For these reasons, we find no error. 

Finally, petitioner argues that the circuit court erred in terminating his parental rights 

when he substantially complied with his improvement period and that termination not in the 

children’s best interests. Pursuant to West Virginia Code § 49-6-5(b)(3), a respondent parent’s 

failure to respond or follow through with a reasonable family case plan or other rehabilitative 

efforts constitutes circumstances in which there is no reasonable likelihood that the conditions of 

abuse or neglect can be substantially corrected. Further, West Virginia Code § 49-6-5(a)(6) 

expressly provides for termination “upon a finding that there is no reasonable likelihood that the 

conditions of neglect or abuse can be substantially corrected in the near future” (emphasis 

added) and when necessary for the child’s welfare. The record clearly demonstrates that 

petitioner had approximately seven months to substantially correct the conditions that led to the 

abuse and neglect. However, he failed to do so. Although petitioner argues that he substantially 

complied with his improvement period, the record on appeal reveals that petitioner failed to 

implement many of the skills taught in those classes. A CASA worker testified that despite 

participating in parenting classes, petitioner has “been unable to control or parent his children 

effectively” and “incapable” of parenting his children. As we recently held, “[i]n making the 

final disposition in a child abuse and neglect proceeding, the level of a parent’s compliance with 

the terms and conditions of an improvement period is just one factor to be considered. The 

controlling standard that governs any dispositional decision remains the best interests of the 

child.” Syl. Pt. 4, In re: B.H. and S.S., 233 W.Va. 57, 754 S.E.2d 743 (2014).Therefore, we find 

no error in the circuit court’s finding that there was no reasonable likelihood that petitioner could 

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

 For the foregoing reasons, we affirm. 

 

 Affirmed. 
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ISSUED: October 20, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II