1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re T.L. and E.S.

No. 19-0796 (Kanawha County 17-JA-502 and 17-JA-503)

MEMORANDUM DECISION

Petitioner Mother T.S., by counsel Rebecca Stollar Johnson, appeals the Circuit Court of 

Kanawha County’s July 30, 2019, order terminating her parental rights to T.L. and E.S.

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, Jennifer R. Victor, 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 finding that she failed to successfully complete her postadjudicatory improvement period and in failing to impose a less-restrictive dispositional 

alternative to termination of 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.

In November of 2017, the DHHR filed an abuse and neglect petition that alleged petitioner 

and T.L.’s father engaged in domestic violence in the children’s presence. The petition further 

alleged that two other adults in the home engaged in domestic violence in the children’s presence. 

According to E.S.’s disclosure to a Child Protective Services (“CPS”) worker, the physical 

violence she witnessed in the home “ma[de] her scared.” The child later confirmed that she 

witnessed petitioner abuse drugs in the home and that the home often lacked electricity. Upon 

investigation, CPS located a woman who indicated that she routinely transported E.S. to and from 

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

April 6, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

school and further informed the DHHR that she had been caring for T.L. “from about the time of 

his birth.” This individual further corroborated E.S.’s disclosures about petitioner’s conduct. 

During the CPS investigation, petitioner repeatedly denied issues with domestic violence and 

substance abuse in the home. CPS also confirmed that the electricity in the home was supplied by 

power cords running from another residence. Initially, petitioner agreed to permit the children to 

stay with the individual who had been caring for T.L. However, it was then reported to CPS that 

petitioner and T.L.’s father went to this individual’s home and “started trouble” by demanding that 

she return the children to their care or they would “beat her up.” When CPS discussed a possible 

protection plan that would permit the children to stay with the individual previously caring for 

T.L., petitioner and T.L.’s father “became very verbal and cuss[ed]” at the CPS worker before 

refusing to permit this individual to care for the children. During this discussion, T.L.’s father 

became “very aggressive” and informed the worker that he was going to “beat the hell” out of the 

woman caring for the children and take them back. The father eventually threatened to “kill 

anybody that has to do with CPS,” including the worker to whom he was speaking. T.L.’s father 

then “picked up a splitting maul . . . , raised it over his head . . . [,] and brought the maul down on 

the wood stove” in the home. The DHHR further alleged that petitioner neglected the children by 

failing to supervise them, as evidenced by her failure to pick six-year-old E.S. up from the bus,

and also committed educational neglect due to E.S.’s several unexcused absences from school. 

Accordingly, the DHHR alleged that petitioner abused and neglected the children by virtue of her 

substance abuse; participation in domestic violence in their presence; failure to supervise; and 

failure to provide necessities, such as electricity, among other allegations. Because of the parents’ 

refusal to execute a safety plan to ensure the children’s welfare, the DHHR was forced to obtain 

emergency custody of the children. Petitioner thereafter waived her preliminary hearing. 

During the adjudicatory hearing in January of 2018, petitioner stipulated that she abused 

substances in the children’s presence and that her substance abuse negatively affected her ability 

to parent the children. Petitioner also admitted that she engaged in domestic violence in the 

children’s presence. As such, the circuit court adjudicated petitioner of abusing and neglecting the 

children. 

At a hearing in March of 2018, the circuit court granted petitioner a post-adjudicatory 

improvement period. Following her acceptance into a residential substance abuse treatment 

program, petitioner’s improvement period was extended several times. Around the time petitioner 

was granted an improvement period, the circuit court ordered petitioner’s boyfriend, L.M., to 

cooperate with the DHHR if he and petitioner intended to continue their relationship. This included 

L.M. submitting to drug screens and providing the DHHR with the information necessary to 

perform a criminal background check. The circuit court’s order was based on the boyfriend 

appearing at visits with the children and at petitioner’s treatment facility, which respondents 

believed was disruptive to petitioner’s recovery. In fact, the DHHR filed a court summary in 

September of 2018 that indicated petitioner was temporarily discharged from her substance abuse 

program because she was repeatedly “on the phone with [L.M.], constantly fighting[] and yelling.” 

Petitioner was required to turn her phone over to the staff, but she “had another phone that was 

hidden” that she used to continue her disruptive behavior. L.M. failed to comply with these 

requirements and the circuit court eventually prohibited him from having contact with the children 

because of his extensive criminal history and a history of substance abuse and domestic violence. 
3

Additionally, by February of 2019, the DHHR recommended the termination of petitioner’s 

parental rights due to a lack of meaningful compliance with her improvement period. 

The circuit court originally convened the dispositional hearing in February of 2019, but 

found that the hearing should be continued until petitioner completed her treatment program.

Thereafter, the guardian moved to terminate petitioner’s improvement period on the basis that she 

was continuing her relationship with her boyfriend, who had been barred from having contact with 

the children. Further, during a hearing in April of 2019, one of petitioner’s service providers 

testified that petitioner missed six parenting education sessions and all eight of her adult life skills 

education sessions. In July of 2019, the DHHR filed another court summary that recommended 

the termination of petitioner’s parental rights due to her failure to fully comply with services.

Ultimately, the parties appeared for the final dispositional hearing in July of 2019. The 

evidence showed that petitioner had completed her substance abuse treatment and obtained 

employment and housing. However, the DHHR presented evidence of petitioner’s continued 

relationship with L.M., which petitioner denied. The record reveals that multiple individuals 

witnessed petitioner’s continued relationship with L.M. Specifically, T.L.’s foster mother 

witnessed petitioner and L.M. together in a vehicle, a CPS worker observed petitioner’s vehicle at 

L.M.’s residence on multiple occasions, E.S.’s stepmother observed petitioner and L.M. shopping 

together, E.S. reported that she talked to petitioner and L.M. on the phone together, and E.S. 

reported that L.M. stayed with petitioner and E.S. at a hotel when E.S. was given permission to 

attend a funeral in Ohio. The DHHR also presented evidence that petitioner had failed to comply 

with her required family therapy since May of 2019. According to the family therapist, E.S.

disclosed instances of petitioner’s conduct that established that petitioner’s “actions outside of 

therapy [were] not consistent with the appropriate responses she provide[d] during therapy.” 

Additionally, the circuit court heard evidence that petitioner had recently tested positive for 

opiates, which petitioner claimed was a result of having been prescribed opiates at the emergency 

room for swimmer’s ear. Despite this positive drug screen, petitioner “testified that she no longer 

has a drug problem.” In its final order, the circuit court found that petitioner’s “testimony was not 

credible.” Ultimately, the circuit court found that petitioner “failed to adequately address the 

concerns of substance abuse and domestic violence” because she “failed to adequately participate 

in the services offered and failed to benefit from them.” Because the children’s safety could not be 

assured if returned to petitioner’s care, and because there was no reasonable likelihood petitioner 

could substantially correct the conditions of abuse and neglect in the near future, the circuit court 

terminated petitioner’s parental rights to the children.

2 It is from the dispositional 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 

2

T.L.’s father’s parental rights were also terminated below, and the permanency plan for 

that child is adoption with the current foster family. E.S. has achieved permanency in the home of 

her nonabusing father. 
4

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). 

Petitioner first argues that the circuit court erred in finding that she failed to successfully 

complete her post-adjudicatory improvement period. According to petitioner, this finding is 

erroneous because she “completed residential drug treatment, participated in her parenting and 

adult life skills [services], got and maintained a job and housing, and tested clean on all her drug 

screens.” We find, however, that petitioner’s argument in support of her assignment of error 

ignores evidence of her noncompliance and fails to take into account certain evidence shows that 

she ultimately failed to implement what she was taught in her services, which precluded the 

children’s return to her care. 

Contrary to petitioner’s assertion that she participated in her parenting and adult life skills 

education, the record shows that the DHHR presented evidence in April of 2019 that petitioner 

failed to attend six parenting education sessions and all eight of her adult life skills education 

sessions. Additionally, testimony at the dispositional hearing established that petitioner had not 

complied with her required family therapy for the two months preceding that hearing. This is 

especially problematic given the fact that E.S. expressed a “lo[ss] of trust in [petitioner]” that the 

therapist indicated was exacerbated by petitioner’s failure to comply with the required therapy. 

Further, based on disclosures from E.S., the circuit court found that petitioner’s “actions outside 

of therapy [were] not consistent with the appropriate responses she provide[d] during therapy.” It 

is clear that, despite petitioner’s assertion on appeal, she did not fully comply with all the 

requirements of her improvement period. 

However, even assuming petitioner had successfully completed these requirements, this 

Court has recognized that “‘“it is possible for an individual to show ‘compliance with specific 

aspects of the case plan’ while failing ‘to improve . . . [the] overall attitude and approach to 

parenting.’”’” In re B.H., 233 W. Va. 57, 65, 754 S.E.2d 743, 751 (2014) (citations omitted). 

Further, “‘[t]he assessment of the overall success of the improvement period lies within the 

discretion of the circuit court . . . “regardless of whether . . . the individual has completed all 

suggestions or goals set forth in family case plans.”’” Id. (citations omitted). What petitioner fails 

to recognize is that even if this Court were to agree that she completed all the terms and conditions 

of her improvement period, the ultimate determination as to whether she successfully completed 

her improvement period hinged on whether petitioner demonstrated a legitimate change in her 

approach to parenting. Given the circuit court’s extensive findings regarding petitioner’s continued 

relationship with L.M. against its order and in contradiction to the children’s best interests, coupled 
5

with petitioner’s positive drug screen, we find that the evidence was sufficient to support the circuit 

court’s finding in this regard. 

On appeal, petitioner argues that she rebutted the evidence that suggested she continued 

her relationship with L.M. by explaining that her car was parked near his residence because she 

had L.M.’s cousin repair her brakes and that she just happened to have “an off-chance meeting 

with [L.M.]” at the store. This argument, however, ignores the evidence from both E.S. and T.L.’s 

foster mother regarding petitioner’s continued contact with L.M. Further, the circuit court heard 

petitioner’s testimony, which it found lacked credibility, and the additional evidence she cites in 

support of this argument before making its determination. Given that petitioner couches this 

argument entirely on credibility, we decline to disturb this determination on appeal. Michael D.C. 

v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997) (“A reviewing court cannot 

assess witness credibility through a record. The trier of fact is uniquely situated to make such 

determinations and this Court is not in a position to, and will not, second guess such 

determinations.”). As such, petitioner cannot establish that the circuit court erred in finding that 

she continued her relationship with L.M., an individual that the circuit court previously prohibited 

from having contact with the children due to his “fail[ure] to cooperate with the [c]ourt’s order or 

with services offered.” Based on L.M.’s “lengthy criminal history[] and a history of domestic 

violence and substance abuse,” the circuit court found that L.M. “pose[d] a safety risk for the 

children” that petitioner failed to acknowledge. Accordingly, it is clear that the circuit court had 

ample evidence upon which to find that petitioner “failed to address adequately the concerns about 

substance abuse and domestic violence that prompted the filing of the petition.” We find, therefore, 

that she is entitled to no relief in regard to this assignment of error. 

Finally, petitioner argues that the circuit court erred in failing to impose a less-restrictive 

dispositional alternative to termination of her parental rights. According to petitioner, E.S. remains 

in her father’s custody and has achieved permanency in his care. As such, petitioner argues that 

the circuit court could have terminated her custodial rights only, “which would have been the 

least[-]restrictive alternative for both the [p]etitioner and the children.” Not only do we find that 

this argument entitles petitioner to no relief, we further note that E.S.’s placement with her 

biological father has no bearing on T.L.’s placement, nor does petitioner attempt to explain how 

her argument regarding E.S. applies to T.L. Regardless, this Court has held that West Virginia 

Code § 49-4-604 “permits the termination of one parent’s parental rights while leaving the rights 

of the nonabusing parent completely intact, if the circumstances so warrant.” In re Emily, 208 W. 

Va. 325, 344, 540 S.E.2d 542, 561 (2000). Further, “simply because one parent has been found to 

be a fit and proper caretaker for [the] child does not automatically entitle the child’s other parent 

to retain his/her parental rights if his/her conduct has endangered the child and such conditions of 

abuse and/or neglect are not expected to improve.” Id. Clearly, E.S.’s placement with her father 

does not entitle petitioner to retain her parental rights to E.S., let alone to both children.

Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts may terminate parental 

rights upon findings that there is no reasonable likelihood the parent can substantially correct the 

conditions of abuse and neglect in the near future and that termination of parental rights is 

necessary for the children’s welfare. Here, the circuit court made such findings. Specifically, the 

circuit court found that petitioner “demonstrated an inadequate capacity to solve the problems of 

child abuse and neglect on her own, or with help,” in accordance with West Virginia Code § 49-
6

4-604(c). This finding was based on substantial evidence, as outlined above, including petitioner’s 

positive drug screen upon completion of her substance abuse treatment and her repeated refusals 

to end her relationship with L.M., an individual the circuit court found “pose[d] a safety risk for 

the children.” Not only did the circuit court find that petitioner “failed to acknowledge or address 

this safety concern,” it further found that she flatly “denied having such a relationship” despite 

“[t]estimony from other witnesses . . . [that] belie[d] . . . [her] denials.” Given that petitioner failed 

to acknowledge the safety risk this relationship posed and was dishonest about its ongoing nature, 

it is clear that the children’s welfare required termination of her parental rights because their safety 

could not be assured in her care. 

As this Court has long held, 

“[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(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). Additionally, “[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., 233 W. Va. 57, 754 S.E.2d 743 (2014). Again, despite petitioner’s assertions 

that she fully complied with all the requirements of her improvement period, it is clear that the 

circuit court made its dispositional determination based on the children’s best interests. 

Accordingly, petitioner is entitled to no relief. 

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

30, 2019, order is hereby affirmed.

Affirmed.

ISSUED: April 6, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman 

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison