STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In Re: I.J., W.J., G.J., & K.J. September 21, 2015 

RORY L. PERRY II, CLERK 

No. 15-0202 SUPREME COURT OF APPEALS (Taylor County 14-JA-19 through 14-JA-22) OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother A.J., by counsel Dante M. Fuscardo, appeals the Circuit Court of 

Taylor County’s February 3, 2015, order terminating her parental rights to I.J., W.J., G.J., and 

K.J. The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee 

Niezgoda, filed its response in support of the circuit court’s order. The guardian ad litem 

(“guardian”), Mary S. Nelson, filed a response on behalf of the children supporting the circuit 

court’s order and a supplemental appendix. On appeal, petitioner alleges that the circuit court 

erred in denying her motion for a post-adjudicatory improvement period, terminating her 

parental rights instead of imposing a less restrictive dispositional alternative, and ceasing her 

post-termination visitation.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 July of 2014, the DHHR filed an abuse and neglect petition against the parents and 

alleged that petitioner had a prior conviction of felony child neglect on September 16, 2009. The 

petition further alleged that petitioner recently drove the children while highly intoxicated, 

thereby endangering the children’s safety. According to the petition, petitioner was arrested for 

second offense driving under the influence (“DUI”) as a result. The petition further alleged that 

petitioner abused and/or neglected the children by exposing them to dangerous situations, her 

continued alcohol and substance abuse, and her failure to protect the children. The circuit court 

held a hearing that same month and took in-camera testimony from the three oldest children. Sixyear-old G.J. testified that the parents fight about petitioner’s alcohol abuse and sometimes 

engage in physical altercations. Nine-year-old W.J. also testified that his parents argue about 

petitioner’s alcohol abuse, as did ten-year-old K.J, though neither W.J. nor K.J. testified about 

physical violence in the home. 

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. 

1


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

During the preliminary hearing in July of 2014, petitioner expressed a desire to waive the 

same and to proceed to a stipulated adjudication. Petitioner then stipulated to her felony arrest 

and her alcohol abuse. However, petitioner gave conflicting statements as to the frequency of her 

alcohol consumption that were contradicted by in-camera statements from the children. The 

adjudicatory hearing was continued into August of 2014, and the circuit court denied petitioner’s 

motion for an improvement period based upon her lack of honesty regarding her alcohol abuse 

and her attempts to minimize her actions. Ultimately, petitioner was adjudicated as an abusing 

parent. 

In October of 2014, the circuit court held a dispositional hearing. Petitioner’s parenting 

skills and adult life skill service provider testified that petitioner had not made much progress in 

the classes because she failed to attend several sessions and had difficulty staying on task when 

she did attend. Her service provider also testified that petitioner reported attending Alcoholics 

Anonymous meetings but failed to provide documentation to support this claim. Further, the 

service provider testified that she linked petitioner to other community resources to help treat 

petitioner’s alcoholism, but that petitioner failed to initiate those services. Moreover, petitioner 

portrayed her alcohol consumption as an isolated incident that resulted in her arrest. Thereafter, 

the circuit court again denied petitioner’s motion for an improvement period and terminated her 

parental rights to the children. However, petitioner was allowed supervised post-termination 

visitation with the children. In February of 2015, following another arrest for DUI, the circuit 

court entered an order denying petitioner further post-termination visitation with the children 

because it was not in the children’s best interests. Petitioner appeals from the dispositional order. 

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, the Court finds 

no error in the circuit court denying petitioner’s motion for a post-adjudicatory improvement 

period, in terminating her parental rights, or in ceasing post-termination visitation. 

First, petitioner argues that the circuit court erred in denying her motion for a postadjudicatory improvement period because she acknowledged the issues of abuse and neglect 

2


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

when she made several stipulations at adjudication and was participating in services. However, 

contrary to petitioner’s argument, the record is clear that the circuit court did not err in denying 

petitioner’s motion because she failed to satisfy the necessary burden of proof. Pursuant to West 

Virginia Code § 49-6-12(b)(2), circuit courts have discretion to grant an improvement period 

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

fully participate in the improvement period . . . .” Moreover, in discussing improvement periods, 

we have previously held that 

[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. 

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)). 

In the instant matter, it is clear that petitioner failed to acknowledge the existence of the 

conditions of abuse and neglect in the home. While it is true that petitioner stipulated to 

adjudication by admitting to her prior conviction for felony child neglect and that she was 

arrested for second offense DUI with her children in the vehicle, among other things, the circuit 

court specifically found that petitioner was not truthful during the proceedings. Petitioner 

testified that the only time she consumed alcohol after her arrest for felony child neglect was on 

the date she was arrested for second offense DUI, which was in direct contradiction to testimony 

from petitioner’s neighbor and her children that established petitioner consumed alcohol 

frequently. Moreover, petitioner testified that she was attending Alcoholics 

Anonymous/Narcotics Anonymous meetings but failed to ever provide verification as requested. 

Finally, petitioner also failed to submit to random drug screens as directed below. Ultimately, the 

circuit court found that petitioner is a “severe alcoholic” and that she “refus[e]d . . . to admit she 

has a problem with alcohol . . . .” Based on this evidence, it is clear that petitioner could not 

establish she was likely to fully participate in a post-adjudicatory improvement period, especially 

in light of her refusal to acknowledge the underlying conditions of abuse and neglect in the 

home. As such, we find no error in the circuit court denying petitioner’s motion. 

Further, the Court finds that the circuit court properly terminated petitioner’s parental 

rights upon a finding that she could not substantially correct the conditions of abuse and neglect 

in the home. Pursuant to West Virginia Code § 49-6-5(b)(3), a situation in which there is no 

reasonable likelihood that the conditions of abuse or neglect can be substantially corrected 

includes one in which 

[t]he abusing parent . . . [has] not responded to or followed through with a 

reasonable family case plan or other rehabilitative efforts of social, medical, 

mental health or other rehabilitative agencies designed to reduce or prevent the 

abuse or neglect of the child, as evidenced by the continuation or insubstantial 

diminution of conditions which threatened the health, welfare or life of the child. 

3


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The circuit court was presented with overwhelming evidence that petitioner failed to respond to 

the services implemented below. As addressed above, petitioner continued to minimize her 

alcohol abuse and failed to acknowledge the abuse and neglect in the home. 

Contrary to petitioner’s argument that a less restrictive dispositional alternative existed, 

namely leaving the child in a legal guardianship with the paternal grandparents, the circuit court 

had no option but to terminate petitioner’s parental rights. Pursuant to West Virginia Code § 49­

6-5(a)(6), circuit courts are directed to terminate parental rights upon findings that there is no 

reasonable likelihood the conditions of abuse and neglect can be substantially corrected and 

when necessary for the child’s welfare. Further, we have held as follows: 

“Termination of parental rights, the most drastic remedy under the 

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

49–6–5 . . . 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) . . . 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, termination 

of petitioner’s parental rights was not error. 

Finally, the Court finds no error in the circuit court terminating petitioner’s posttermination visitation with the children. In the order terminating petitioner’s parental rights, the 

circuit court specifically warned petitioner that post-termination visitation was the right of the 

children, not petitioner, and that it would cease if it was determined to be against the children’s 

best interest. This is in keeping with our prior holdings, wherein we have stated that 

“[w]hen parental rights are terminated due to neglect or abuse, the circuit 

court may nevertheless in appropriate cases consider whether continued visitation 

or other contact with the abusing parent is in the best interest of the child. Among 

other things, the circuit court should consider whether a close emotional bond has 

been established between parent and child and the child’s wishes, if he or she is of 

appropriate maturity to make such request. The evidence must indicate that such 

visitation or continued contact would not be detrimental to the child’s well being 

and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va. 

446, 460 S.E.2d 692 (1995). 

Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002). In the instant matter, the 

circuit court terminated petitioner’s post-termination visitation because petitioner was again 

arrested for DUI shortly after the dispositional hearing. In short, the circuit court found 

petitioner’s continued alcohol abuse and resultant criminal conduct to be detrimental to the 

children’s well-being and, accordingly, terminated her post-termination visitation. We find no 

error in this decision. 

4


 

 

 

 

 

 

 

 

 

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

February 3, 2015, order is hereby affirmed. 

Affirmed. 

ISSUED: September 21, 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 

5