1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re J.N.

No. 19-1177 (Kanawha County 18-JA-552)

MEMORANDUM DECISION

Petitioner Mother J.F., by counsel Sandra K. Bullman, appeals the Circuit Court of 

Kanawha County’s November 20, 2019, order accepting her voluntary relinquishment of her 

parental rights to J.N. and denying her post-termination visitation with the child.

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, J. Rudy Martin, 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 denying her post-termination 

visitation with the child. 

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 September of 2018, the DHHR filed a child abuse and neglect petition against 

petitioner after another child in the home, five-month-old A.N., was found dead with bruising 

and scratching to the head and face.2 The petition specifically noted that petitioner lived in a 

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). 

2

In October of 2018, the DHHR filed an amended petition related to additional parties not 

at issue on appeal. 

FILED

June 25, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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home with fifteen other people. Petitioner claimed that she fed A.N. and placed her in her 

playpen before leaving the home with her boyfriend, leaving the children in the care of other 

adults in the home. Later that evening, an adult placed a call to 9-1-1 and stated that A.N. was 

not breathing. Her deceased body had signs of unexplained trauma, including bruising to the left 

side of her head, scratches on her right temple, and marks around her nostrils. The petition 

further indicated that A.N. was born drug-exposed and had been taken to the hospital at two 

months old for bruising to the head. According to the petition, “[t]he WV Medical Examiner’s 

Office . . . determined that [A.N.] died from non-accidental trauma.” Finally, the petition 

indicated that petitioner’s oldest child, S.N., died of sudden infant death syndrome in 2014. 

Because of the extreme circumstances surrounding A.N.’s death, the DHHR alleged that J.N. 

was in imminent danger and removed the child from the home, which removal was later ratified 

at a preliminary hearing. 

Thereafter, the circuit court convened multiple adjudicatory hearings over several 

months. At one hearing, the circuit court was informed that petitioner’s supervised visitation 

with the child was suspended because she tested positive for marijuana on six drug screens in 

June and July of 2019. Thereafter, the circuit court ordered that petitioner could resume visitation 

if she provided clean drug screens. After this order, petitioner tested positive for marijuana at 

least four additional times, although she eventually provided a negative screen. Ultimately, the 

circuit court adjudicated petitioner as an abusing parent by order entered in October of 2019. The 

circuit court found that the evidence demonstrated that the living conditions in the home were 

deplorable as evidenced by post-mortem bites found on A.N.’s body due to a cockroach 

infestation. Further, the evidence demonstrated drug use in the home and that A.N.’s autopsy 

revealed that the child’s body contained enough methamphetamine to be lethal but for the blunt 

force trauma sustained to her head. According to the medical examiner, the child would have 

exhibited clear signs and symptoms of her injuries, including seizing and trouble breathing, 

which would have been obvious to anyone present. The circuit court found that none of the 

adults in the home made any effort to provide a reasonable explanation for what happened to the 

child, that the statements given were “completely inconsistent with the medical evidence 

presented,” and that it was not possible for the adults in the home on the date of A.N.’s death to 

not have known that something happened to the child. 

At a dispositional hearing held in October of 2019, the circuit court permitted petitioner 

to voluntarily relinquish her parental rights to J.N. Petitioner then moved for post-termination 

visitation with the child, which the circuit court denied upon finding that it would not be in the 

child’s best interests. Petitioner now appeals from the circuit court’s November 20, 2019, 

dispositional order.3

3

According to respondents, the DHHR filed an amended petition against the child’s father 

and proceedings in regard to him are ongoing. The child is currently placed with relatives. The 

permanency plan for the child is reunification with the father, while the concurrent permanency 

plan is adoption in his current placement.

(continued . . . )
3

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’s lone assignment of error concerns the circuit court’s denial of her 

request for post-termination visitation. According to petitioner, she shared a strong emotional 

bond with the child and visits during the proceedings went well. As such, petitioner asserts that 

post-termination visitation would be appropriate. We disagree. 

In addressing post-termination visitation, the Court has directed as follows:

“When 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). On appeal, petitioner 

repeatedly asserts that a strong emotional bond existed between her and the child, but the record 

simply does not support this assertion. In fact, none of the portions of the record to which 

Additionally, although petitioner appeals from the circuit court’s November 20, 2019, 

dispositional order, the record shows that petitioner filed a motion to reconsider the order on 

appeal. The circuit court held a hearing on the motion and again denied petitioner’s request for 

post-termination visitation. 
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petitioner cites contain any evidence of a strong emotional bond. At best, the record shows that 

one of the goals of her case plan was to “maintain and nurture bond between” petitioner and the 

child, but the record is devoid of any evidence that the bond was of such strength that continued 

visitation following petitioner’s voluntary relinquishment of her parental rights was necessary for 

the child’s wellbeing. As this Court has held, “[o]ur cases indicate that a close emotional bond 

generally takes several years to develop.” In re Alyssa W., 217 W. Va. 707, 711, 619 S.E.2d 220, 

224 (2005). Indeed, in analyzing whether post-termination visitation was appropriate in that case, 

we noted that “the possibility of post-termination visitation is usually considered in cases 

involving children significantly older” than the child at issue in that case, who was only one year 

old when the case was initiated. Here, J.N. was only two years old when the circuit court denied 

petitioner’s request for post-termination visitation, which was in keeping with this Court’s prior 

holdings regarding the development of close emotional bonds. 

Petitioner further repeatedly asserts that both the DHHR and the guardian ad litem

supported post-termination visitation, but the record again does not support this assertion. At 

best, the guardian and the DHHR indicated at various times that they did not oppose posttermination visitation. The only recommendation from the DHHR in regard to the possibility of 

post-termination was for extensive restrictions on such visitation in the event that the circuit 

court determined continued visitation would be in the child’s best interests. Further, the portion 

of the record to which petitioner cites to assert that the guardian actively recommended posttermination visitation simply does not contain such a recommendation. Instead, the guardian ad 

litem clearly recommended that the child “may receive post-termination visits from [petitioner] . 

. . provided, however, that the contact is in [the child’s] best interests.” On appeal, the guardian

ad litem is explicit that this recommendation “was not intended to be an endorsement of 

[petitioner’s] position set forth in her appeal.” Instead, the guardian ad litem asserts that “the 

recommendation was to suggest that if the [c]ourt did allow any visitation that it be severely 

limited.” 

More importantly, the circuit court specifically found that continued visitation would not 

be in the child’s best interests, which is, ultimately, the controlling determination on this issue. 

See Kristopher O. v. Mazzone, 227 W. Va. 184, 192, 706 S.E.2d 381, 389 (2011) (“[T]he best 

interests of the child is the polar star by which decisions must be made which affect children.”). 

Indeed, the disturbing facts surrounding A.N.’s death and petitioner’s conduct in regard to the 

child’s death support the circuit court’s denial of post-termination with J.N. As the circuit court 

found below, petitioner “did nothing to protect the infant, [A.N.]; and there is no reason to 

believe” that petitioner would protect two-year-old J.N. This finding was based on the fact that

petitioner “did nothing to assist” the investigation into A.N.’s death and “lied to the [Child 

Protective Services] worker and when providing testimony to the [c]ourt.” Given that A.N. died 

of blunt force trauma to the head while in petitioner’s care and had a lethal amount of 

methamphetamine in her system, the circuit court’s findings in this regard are well supported. As 

such, we find no error in the circuit court’s denial of her motion for post-termination visitation.4

4

In support of this assignment of error, petitioner also argues that post-termination 

visitation is appropriate because the permanency plan is for the child to be placed with the father, 

(continued . . . )
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Lastly, because the proceedings regarding the child’s father are ongoing, this Court 

reminds the circuit court of its duty to establish permanency for the child. Rule 39(b) of the 

Rules of Procedure for Child Abuse and Neglect Proceedings requires that

[a]t least once every three months until permanent placement is achieved as 

defined in Rule 6, the court shall conduct a permanent placement review 

conference, requiring the multidisciplinary treatment team to attend and report as 

to progress and development in the case, for the purpose of reviewing the progress 

in the permanent placement of the child.

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of 

Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child 

within twelve months of the date of the disposition order. As this Court has stated, 

[t]he [twelve]-month period provided in Rule 43 of the West Virginia 

Rules of Procedure[] for Child Abuse and Neglect Proceedings for permanent 

placement of an abused and neglected child following the final dispositional order 

must be strictly followed except in the most extraordinary circumstances which 

are fully substantiated in the record.

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 6. Moreover, this Court has stated that 

[i]n determining the appropriate permanent out-of-home placement of a 

child under [West Virginia Code § 49-4-604(b)(6) (2019)5

], the circuit court shall 

give priority to securing a suitable adoptive home for the child and shall consider 

other placement alternatives, including permanent foster care, only where the 

court finds that adoption would not provide custody, care, commitment, nurturing 

and discipline consistent with the child’s best interests or where a suitable 

adoptive home [cannot] be found.

with whom she alleges she shares a “good co-parenting relationship.” This argument does not 

entitle petitioner to relief for several reasons. First, respondents to this action have indicated that 

an amended petition raising allegations against the father was filed below and proceedings in 

regard to his parental rights to J.N. are ongoing, thereby calling into question whether the child 

will be placed back into his permanent custody. Further, the record shows that petitioner 

admitted to filing for a domestic violence protective order against the father shortly before the 

petition’s filing in this matter, thereby undermining her unsupported assertion of a good 

relationship with the father. Finally, the fact that the child may be placed back into the father’s 

custody has no impact on the circuit court’s finding that continued contact between petitioner 

and J.N. would not be in the child’s best interests, given the facts surrounding A.N.’s death and 

petitioner’s failure to take any action to protect that child. 

5

Although the Legislature amended West Virginia Code § 49-4-604 effective June 5, 

2020, including renumbering the provisions, the amendments do not impact this case
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Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian 

ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the 

child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W. Va. 648, 408 

S.E.2d 400 (1991).

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

November 20, 2019, order is hereby affirmed.

Affirmed.

ISSUED: June 25, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman 

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison