1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re M.B.

No. 19-0366 (Ohio County 18-CJA-89 MJO)

MEMORANDUM DECISION

Petitioner maternal grandmother H.B., by counsel Michael B. Baum, appeals the Circuit 

Court of Ohio County’s March 19, 2019, order terminating her custodial rights to M.B.

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, Joseph J. Moses, 

filed a response on behalf of the child in support of the circuit court’s order. On appeal, 

petitioner argues that the circuit court erred in denying her motion for a post-adjudicatory 

improvement period and terminating her custodial 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 August of 2018, the DHHR filed a child abuse and neglect petition alleging that sixyear-old M.B. was abandoned by his mother and left in petitioner’s care. The DHHR reported 

that petitioner failed to provide proper medical care to M.B, including treatment for a condition 

which caused M.B.’s toe to appear “completely black” and “swollen.” The DHHR further 

alleged that petitioner’s home was “in a dilapidated state and filled with clutter,” including a 

hallway full of toys and old rugs that was “waist-high” at its lowest point, and “almost to the 

ceiling at its highest point.” The yard of the home was full of scrap metal and debris. 

 

1Consistent 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 8, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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Additionally, the DHHR alleged petitioner did not ensure that M.B. exercised proper hygiene 

and noted that the child was not “potty trained.” During the DHHR’s investigation, the child 

described that he suffered from “itches that won’t go away.” Petitioner denied that bed bugs were 

in the home, but DHHR workers observed a “bed bug trap box” in the kitchen. Finally, the 

DHHR alleged that prior referrals were received regarding petitioner’s care of M.B. and the 

family previously received services, such as “[a]dult life skills . . . in August and September of 

2016, and from January, 2017 through July of 2017. Safety services were put in the home from 

September . . . 2016 through March . . . 2017. Supervision was put in the home from May . . . 

2017 until March . . . 2018.”

Later in August of 2018, the circuit court held a preliminary hearing and the DHHR 

presented testimony and photographs consistent with the allegations in the petition. Further, the 

DHHR worker testified that he sought medical treatment for M.B.’s infected toe prior to 

removing the child from petitioner’s home, but that petitioner did not fill the prescription 

provided as a result of that treatment and the medication was never utilized. Petitioner presented 

no evidence. The circuit court ultimately found that M.B. was in imminent danger and ratified 

his removal from petitioner’s home. 

In September of 2018, petitioner stipulated to the allegations that she failed to provide 

appropriate housing, the home was infested with bugs, the child exhibited poor hygiene and was 

not “potty trained,” and the home and yard were unsafe for the child. The circuit court accepted 

this stipulation and adjudicated petitioner as an abusing parent. Petitioner filed a motion for a 

post-adjudicatory improvement period, and the circuit court scheduled an evidentiary hearing on 

the motion for a post-adjudicatory improvement period in January of 2019. In the interim, 

petitioner was ordered to participate in a forensic psychological and parental fitness examination 

and completed that examination in October of 2018.

At the hearing on the motion for a post-adjudicatory improvement period, petitioner 

testified that the home had “odds and ends” that needed to be repaired and that the home needed 

“straightened up.” Petitioner asserted that she had addressed those items, but agreed to relocate if 

the home was “deemed irreparable.” On cross-examination, petitioner denied that M.B.’s toe was 

black and suggested that his toenail was the issue. Petitioner also testified she only needed to 

clean M.B.’s room and the hallway before he returned. 

A DHHR worker testified that he last visited petitioner’s home in November of 2018 and 

that many of the unsafe and unsanitary conditions still existed in the home, such as “relatively 

high” stacks of scrap metal, pests in the kitchen, and a partially blocked upstairs hallway. 

Additionally, M.B.’s foster parent confirmed that the child was not accustomed to using the 

toilet, but that he was trained to do so within a week of arriving at their home. A Wheeling city 

building inspector testified, at the evidentiary hearing, that petitioner’s home had no furnace and 

was heated by space heaters only. The inspector explained that the home could be condemned

based on this lack of a permanent heating supply. Further, the inspector noted “numerous 

electrical hazards,” fire hazards, and a failing roof. A service provider testified that she worked 

with petitioner for four months during the pendency of this proceeding and noticed little 

improvement. Additionally, the service provider observed bed bugs on her shoes following a 
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visit to petitioner’s home and stopped entering the home for fear of spreading the bugs to other 

clients. 

Finally, petitioner’s forensic psychological and parental fitness examiner testified that 

petitioner lacked insight into the conditions of the neglect. The examiner opined that, based on 

the lack of change after services, there was a small likelihood of success with additional services. 

Petitioner’s psychological examination was admitted. During the examination, petitioner 

indicated that she “took [M.B.] to all his appointments, he got all his shots. One time, I forgot to 

take him to the hospital for his toe that I didn’t know nothing about and [now] I got to do all this 

crap.” Petitioner did not mention her failure to obtain and utilize the prescribed medication for 

M.B.’s toe infection. Further, petitioner asserted that “[t]hey said my house was horrible and it 

wasn’t.” The examiner ultimately concluded in the report that petitioner did not have the parental 

capacity to care, protect, and change in order to provide for her child. Based on the evidence 

presented, the circuit court found that petitioner lacked insight into the conditions of abuse and 

neglect as evidenced by her indication that only a few items needed to be remedied in the home. 

Accordingly, the circuit court denied petitioner’s motion for a post-adjudicatory improvement 

period.

The circuit court held a final dispositional hearing in February of 2019, where petitioner

moved for a post-dispositional improvement period and proffered that certain improvements 

were made to the home since the prior hearing. The DHHR objected to petitioner’s motion and 

presented recent photographs of her home in opposition to her proffer. The circuit court found 

that the photographs of the home were taken in February of 2019 and “show little improvement 

in the home.” The circuit court characterized the home as “deplorable and unsafe.” Additionally, 

the circuit court noted that it previously found that petitioner did not “appreciate the extent of the 

changes that need[ed] to be made” and found “that remain[ed] true” at the dispositional hearing. 

The circuit court concluded that there was no reasonable likelihood that the conditions of abuse 

and neglect could be substantially corrected in the near future and that it was in the best interest 

of M.B. to terminate petitioner’s custodial rights. Accordingly, the circuit court terminated 

petitioner’s custodial rights by its March 19, 2019, order. Petitioner now appeals that order.2

The Court has previously held:

“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 

 

2M.B.’s biological parents’ parental rights were terminated during the proceedings. The 

maternal grandfather’s custodial rights were also terminated. According to the parties, the 

permanency plan for the child is adoption in his current foster placement.
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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 review, this Court finds

no error in the proceedings below.

On appeal, petitioner argues that the circuit court erred in denying her motion for a postadjudicatory improvement period.3 Petitioner asserts that she presented clear and convincing 

evidence that she was likely to fully participate in an improvement period based on her 

participation in services. Petitioner objects to the circuit court’s findings that she lacked insight 

into the conditions of neglect and stresses that she made admissions to allegations in the petition 

as proof that she acknowledged the neglect. Finally, petitioner argues that the circuit court 

applied an incorrect standard when ruling on the motion by considering whether petitioner was 

likely to improve during an improvement period. Petitioner emphasizes the correct standard is if 

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

participate in the improvement period.” W. Va. Code § 49-4-610(2)(B). Upon review, we find 

that petitioner is entitled to no relief.

Petitioner’s argument that the circuit court applied the wrong standard misrepresents both 

the record and this Court’s prior holdings. As this Court has long held,

[i]n order to remedy the abuse and/or neglect problem, the problem must first be 

acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth 

of the basic allegation pertaining to the alleged abuse and neglect or the 

perpetrator of said abuse and neglect, results in making the problem untreatable 

and in making an improvement period an exercise in futility at the child’s 

expense.

 

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In support, petitioner asserts that she is a psychological parent of M.B. However, 

petitioner never asserted this argument below, and the circuit court did not hear evidence as to 

whether she was a psychological parent. “‘Our general rule is that nonjurisdictional questions . . . 

raised for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc., 

206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999).” Noble v. W. Va. Dep’t of Motor 

Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009). As such, any argument on appeal 

predicated on petitioner’s assertion of psychological parent status will not be considered. 

However, it is important to note that even if the circuit court had found petitioner was the child’s 

psychological parent, it would have had no effect on the decision to deny petitioner a postadjudicatory improvement period. Regardless of her designation as either a custodial or 

psychological parent, the record shows, as more fully set forth herein, that petitioner failed to 

satisfy the necessary burden to obtain a post-adjudicatory improvement period. Accordingly, she 

is entitled to no relief.
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In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215 

W. Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Further, the circuit court has discretion to deny an 

improvement period when no improvement is likely. In re Tonjia M., 212 W. Va. 443, 448, 573 

S.E.2d 354, 359 (2002). Here, the circuit court correctly considered evidence that petitioner 

lacked insight into the conditions of neglect. Testimony showed that petitioner failed to 

acknowledge the hazards that her home presented to the child or her issues in parenting the child, 

such as failing to remedy his inability to use the toilet. Further, although petitioner stresses that

she explicitly admitted to the conditions through her stipulation to certain allegations in the 

petition, she continued to deny or minimize the conditions throughout the proceedings. Indeed,

during her psychological examination, petitioner asserted that the home was not as deplorable as 

shown in the photographs the DHHR introduced into evidence. Petitioner believed that the home 

only needed to have a few “odds and ends” repaired and needed to be “straightened up.” Yet, the 

circuit court found that the home “remain[ed] unsafe” at the time of the dispositional hearing. It 

is clear that the conditions of the home and care for the child required an undertaking that 

petitioner would not acknowledge. Therefore, the circuit court did not err in denying petitioner’s 

motion for a post-adjudicatory improvement period.

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

there was a reasonable likelihood that the conditions of abuse and neglect could be substantially 

corrected in the near future. Petitioner asserts that she should have been granted an improvement 

period to correct the conditions. West Virginia Code § 49-4-604(b)(6) provides that circuit courts 

may terminate custodial rights upon findings that “there is 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 welfare of the children. West Virginia Code § 49-4-604(c)(3) 

provides a list of situations in which there is “no reasonable likelihood that [the] conditions of 

neglect or abuse can be substantially corrected.” Petitioner asserts that none of the situations 

addressed in West Virginia Code § 49-4-604(c)(3) exist herein, but also acknowledges that the 

specific situations listed in West Virginia Code § 49-4-604(c)(3) is “not exclusive.” Id. 

Generally, a circuit court may find that there is no reasonable likelihood that the conditions of 

abuse and neglect can be substantially corrected when “the abusing adult . . . [has] demonstrated 

an inadequate capacity to solve the problems of abuse or neglect on their own or with help.” 

Even though petitioner asserted some improvement in the condition of the home after being 

provided services, the circuit court found, overall, the home showed “little improvement.”

Clearly, petitioner could not fully remedy the conditions because she would not acknowledge 

their severity. Moreover, petitioner’s history with DHHR involvement displayed a pattern of 

mild progress that would eventually revert, and require further services. Upon these 

considerations, the circuit did not err in finding that there was no reasonable likelihood that the 

conditions of abuse and neglect could be substantially corrected in the near future. Likewise, as 

the conditions had not been corrected, the child would have been subjected to the dangerous 

conditions of the home if returned to petitioner’s care. Therefore, it was necessary for the child’s 

welfare to terminate petitioner’s custodial rights.

Finally, to the extent petitioner argues a less-restrictive alternative should have been 

imposed, such as permanent guardianship, we have previously held as follows:
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“Termination 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). The requisite findings are fully 

supported by the record below. Further, termination of custodial rights is necessary for the child 

to be adopted, which is “the preferred permanent out-of-home placement of [a] child.” Syl. Pt. 2, 

in part, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Therefore, we find no error 

in the circuit court’s termination of petitioner’s custodial rights.

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

March 19, 2019, order is hereby affirmed.

Affirmed.

ISSUED: November 8, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison