1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re C.M., A.M., and N.M.

No. 21-0552 (Braxton County 19-JA-68, 19-JA-69, and 19-JA-70)

MEMORANDUM DECISION

Petitioner Father D.M. Jr., by counsel Andrew C. Shaffer, appeals the Circuit Court of 

Braxton County’s June 10, 2021, order terminating his parental rights to C.M., and any rights he 

had as stepfather to A.M. and N.M.

1 The West Virginia Department of Health and Human 

Resources (“DHHR”), by counsel Patrick Morrisey and Mindy M. Parsley, filed a response in 

support of the circuit court’s order. The guardian ad litem (“guardian”), Mary Elizabeth Snead, 

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 terminating his parental rights when (1) he 

substantially complied with his improvement period, (2) he was not provided with family 

counseling, and (3) the DHHR poorly managed the case.

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 October of 2019, the DHHR filed a child abuse and neglect petition against the mother, 

petitioner, and B.M.2after then-three-year-old C.M. was found wandering near a busy road 

wearing only a diaper in low temperatures. Law enforcement officers responded to the home and 

spoke with petitioner, who was intoxicated while caring for the children. Petitioner was arrested 

for child neglect creating substantial risk of serious bodily injury or death, and a warrant for the 

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).

2B.M. is the father of A.M. and N.M. Petitioner D.M. Jr. is C.M.’s father and was married 

to petitioner at the time of the petition’s filing. 

FILED

January 12, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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mother was issued because she left the children in petitioner’s care while he was intoxicated. 

Petitioner submitted to a drug screen that same day and tested positive for THC, alcohol, and 

nonprescribed opioids. Petitioner also admitted to engaging in domestic violence in the home. The 

DHHR alleged that Child Protective Services (“CPS”) workers interviewed then-seven-year-old 

A.M. and then-eleven-year-old N.M., both of whom reported that they lacked food in the home 

and that the home was in poor condition. The DHHR further alleged that, the following day, a CPS 

worker responded to petitioner’s home and found it to be in such deplorable condition that he made 

a referral to the Braxton County Health Department. Lastly, the DHHR alleged that petitioner had 

previously voluntarily relinquished his parental rights to an older child as a result of abuse and 

neglect proceedings against him.

Petitioner appeared at the preliminary hearing and waived his right to contest the evidence. 

He tested positive for tetrahydrocannabinol, (“THC”), benzodiazepines, and alcohol following the 

hearing. Around November of 2019, the DHHR filed an amended petition that added petitioner’s 

positive drug screen following the preliminary hearing, as well as three other drug screens 

submitted in November of 2019, which were positive for alcohol, benzodiazepines, and THC. In 

December of 2019, the circuit court held an adjudicatory hearing wherein petitioner stipulated to 

the allegations of abuse and neglect. The circuit court accepted petitioner’s stipulation and 

adjudicated him as an abusing and neglecting parent.

In January of 2020, the guardian filed a report expressing astonishment that “it took this 

long for . . . actions to be taken regarding this family” after interviewing the children. The guardian 

reported that the children had observed extensive domestic violence between petitioner and the 

mother. Both A.M. and N.M. reported that petitioner had hit them on numerous occasions while 

he was under the influence of drugs or alcohol and caused A.M.’s nose to bleed on at least one 

occasion. The children further reported being locked in their bedroom and being forced to urinate 

in a bucket. The children also observed drug abuse and reported finding needles and burnt 

aluminum foil in the home. The guardian noted that the children desired to be returned to their 

mother’s care only if she would separate from petitioner. At a hearing held later that month, the 

DHHR presented the testimony of a CPS worker, who recommended that petitioner be granted an 

improvement period. Following testimony, the circuit court took a brief recess and ordered 

petitioner and the mother to submit to a drug screen, at which time petitioner tested positive for 

alcohol. The circuit court held petitioner in contempt and continued the hearing.

At the reconvened hearing held in February of 2020, a CPS worker again testified that the 

DHHR recommended petitioner be granted an improvement period. The CPS worker 

acknowledged that petitioner was not receiving visits based upon his continued positive alcohol 

and/or drug screens but recommended that visits be reinstated should petitioner produce negative 

screens. Petitioner testified that he would comply with the terms and conditions of an improvement 

period. Petitioner admitted that he was living in an unsuitable home and that he was an alcoholic 

but denied being addicted to controlled substances. Petitioner stated that he was willing to go to 

treatment for his alcoholism and requested visits with the children.

Following testimony, the circuit court granted petitioner an improvement period, the terms 

and conditions of which required that petitioner remain drug and alcohol free, complete inpatient 

drug treatment, submit to drug screens, obtain and maintain employment, obtain and maintain 
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suitable housing, undergo a psychological evaluation, complete any required classes, and 

participate in supervised visitation with the child.

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The guardian filed a second report in October of 2020, wherein she noted that the children 

did not want to visit with petitioner. The guardian further noted that the children “continued to 

disclose additional abuse the longer they have been removed” and expressed their desire to be 

adopted by their foster parents. Specifically, the children reported being forced by petitioner and 

the mother to drink alcohol and smoke cigarettes, experiencing extreme hunger such that they 

resorted to eating paper, and experiencing sexual abuse by petitioner’s brother. The guardian noted 

that petitioner left inpatient drug treatment against medical advice without immediately informing 

the DHHR and was found in the mother’s room at her sober living facility, despite his and the 

mother’s statements that they were separating due to the children’s desires that the mother separate 

from petitioner. Based on the foregoing, the guardian recommended termination of petitioner’s 

parental rights.

The circuit court held two final dispositional hearings in December of 2020 and February 

of 2021. The DHHR presented the testimony of Candice Gabriel, a licensed forensic interviewer 

at Children’s Listening Place, who interviewed the children. Ms. Gabriel reported that C.M.’s age 

and limited verbal skills made it difficult for him to communicate effectively; however, N.M. and 

A.M. made consistent disclosures regarding the domestic violence and drug abuse in the home, 

the poor home conditions, and the lack of food in the home. Ms. Gabriel also testified that N.M. 

and A.M. made disclosures consistent with their disclosures to the guardian, including that 

petitioner and the mother forced them to drink alcohol and smoke cigarettes and that they were 

sexually abused by petitioner’s brother. Both children also reported being so hungry that they 

resorted to eating paper. Ms. Gabriel concluded that N.M. and A.M. were extremely fearful of 

petitioner and the mother, and that in her professional opinion, the children exhibited no signs of 

being coached to make their disclosures.

The DHHR also presented the testimony of Jenna McCoy, a licensed psychologist at Saar 

Psychological Group. Ms. McCoy testified that she performed the children’s psychological 

evaluations during which they disclosed drug abuse, domestic violence, extremely poor home 

conditions, and lack of food. Ms. McCoy’s testimony was consistent with the testimony of Ms. 

Gabriel. A.M. further reported to Ms. McCoy that petitioner was physically abusive towards her 

and that on one occasion he used a garden hose with metal ends to hit her. A.M. reported that, on 

another occasion, petitioner hit her so hard with a hairbrush that it broke and bloodied her nose. 

Both N.M. and A.M. informed Ms. McCoy that they did not want to be placed back into

petitioner’s care, and Ms. McCoy testified that it was imperative the children receive extensive 

mental health treatment to learn the necessary skills to cope with the immense amount of trauma 

they had endured. Ms. McCoy opined that she did not believe contact between the children and 

petitioner was in the children’s best interest.

Joshua Jones, a licensed psychologist with Saar Psychological Group, testified regarding 

the psychological evaluation he performed on petitioner. Mr. Jones testified that petitioner’s 

3Petitioner was not granted visits with his stepchildren, A.M. and N.M., as they reported 

being afraid of him and did not want to visit with him. 
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assessment indicated a low motivation for treatment and a tendency to present himself in a 

favorable light. According to Mr. Jones, petitioner exhibited intense problems with anger control, 

environmental stressors, and antisocial behavior. Petitioner also displayed personality traits 

indicative of those who are distant in personal relationships, impatient, easily irritated, quick 

tempered, and easily provoked by the actions of those around them. Mr. Jones stated that petitioner 

admitted to drinking alcohol but refused to take any responsibility for his actions. Petitioner 

acknowledged his criminal history and substance abuse but minimized the seriousness of C.M. 

being found wandering near a busy road in cold temperatures while wearing only a diaper. 

Petitioner further minimized the extent of the domestic violence in the home, the home’s 

deplorable condition, and the inadequate food in the home. Petitioner blamed C.M. for going 

outside alone, blamed the children for being hungry because they would only ask for “junk food,” 

blamed the poor condition of his home on law enforcement tearing it up, and blamed the foster 

parents for the children’s additional disclosures and their refusal to visit with him. Mr. Jones 

opined that any period of sobriety exhibited by petitioner during the case was, at best, solely for 

the purpose of satisfying the requirements of the DHHR or the circuit court. Mr. Jones concluded 

that petitioner has an extremely poor prognosis for attaining minimally adequate parenting and 

that there were no services or interventions that would assist petitioner in correcting his parenting 

deficiencies. Most importantly, he opined that the children would be at risk of continued abuse and 

neglect if returned to petitioner’s care.

A service provider testified regarding petitioner’s supervised visits with C.M. The service 

provider stated that, on one occasion in April of 2020, petitioner and C.M. were attending a virtual 

visit when the child hung up on petitioner. Petitioner proceeded to call the child back and curse at 

the child. At a subsequent virtual visit, C.M. ran and hid, refusing to participate. About that time, 

C.M. began having nightmares and developed a fear of the telephone. The provider testified that, 

although petitioner initially participated well in virtual visits, as the proceedings went on, petitioner 

digressed and became increasingly irritated during visits. 

A CPS worker testified that petitioner, over time, entered four different rehabilitation 

programs in various parts of West Virginia. Altogether, petitioner was in treatment from February 

of 2020 through June of 2020. While petitioner completed some treatment, he failed to submit to 

drug screens as requested, having submitted to only two screens between November of 2020 and 

January of 2021. The CPS worker further testified that petitioner failed to maintain contact with 

the DHHR and failed to complete parenting and adult life skills classes.

Petitioner testified that he completed and/or participated in parenting and adult life skills 

classes, domestic violence counseling, Narcotics Anonymous and Alcoholics Anonymous 

meetings, long-term inpatient substance abuse treatment, and claimed that he signed a release at 

every facility and with every provider so that the DHHR could obtain his records. However, 

petitioner admitted that he did not have any documentation to support his claims. On crossexamination, petitioner was able to produce some documentation that he completed two substance 

abuse treatment programs; however, the documentation did not indicate whether any drug screens 

submitted through those programs were under direct observation—a strict requirement for all drug 

testing to be submitted to the circuit court. Petitioner testified that, after his release from his most 

recent treatment program, he obtained suitable housing. Petitioner admitted to putting the mother’s 

address as his home address on medical documentation because it was the only address he could 
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remember but denied residing with the mother. In fact, petitioner claimed that he had never been 

to that address, claiming he learned of the address “through friends.” Petitioner also claimed that 

he obtained employment in January of 2021 but was laid off before the end of that month and had 

not been rehired. Petitioner noted that his related child neglect criminal charge had been reduced 

by plea agreement to the misdemeanor offense of child neglect and that he was sentenced to six 

months of home incarceration. Lastly, petitioner admitted that he failed to maintain regular contact 

with the DHHR but stated that he tried to contact “somebody” there around June of 2020, asserting 

that he had left messages for his caseworker but was unable to supply dates for those attempts.

Lastly, the most current CPS caseworker testified that he had been assigned to petitioner’s 

case for approximately three weeks and had been able to briefly review the history of the case. 

Based on the testimony provided, the current caseworker opined that the DHHR’s recommendation 

of termination of petitioner’s parental rights was appropriate. 

By order entered on June 10, 2021, the circuit court terminated petitioner’s parental rights, 

finding that any less-restrictive dispositional alternative was “wholly inappropriate” given that 

petitioner failed to substantially comply with the terms and conditions of his improvement period. 

The circuit court further found that petitioner failed to complete long-term inpatient drug 

treatment. While the evidence showed that petitioner attended various substance abuse treatment 

facilities throughout West Virginia, the circuit court found the same to be “a calculated effort by 

[petitioner] to project himself in a positive light hoping the [circuit c]ourt will view the 

amalgamation of his attendance at these various programs [as] compliance” with his improvement 

period. However, the circuit court did not view petitioner’s attendance of these programs as 

compliance, instead finding it to be “an act of subterfuge designed to dodge any commitment to 

addressing his serious substance abuse issue,” as well as “a deliberate attempt to evade facing his 

parenting deficiencies through . . . services.” Further, the circuit court found petitioner’s testimony,

that he completed the Mid-Ohio Valley Fellowship Home program for substance abuse to be 

incredible, as the documentation provided by petitioner simply stated that, as of the date of the 

letter, petitioner was compliant with services and on track for graduation but did not state that he 

successfully completed the program. The letter also failed to set forth any parameters of the 

program or detail any treatment. Additionally, the letter detailing petitioner’s completion of a 

treatment program in Wheeling indicated that the program was less than three months in length, 

and considerably shorter than the six-month program required by the circuit court. 

The circuit court also noted that petitioner failed to participate in parenting and adult life 

skills classes. The court noted that service providers attempted to reach petitioner to set up services, 

but petitioner did not answer their calls or return their messages. Petitioner also failed to complete 

domestic violence counseling, obtain suitable housing, or consistently submit to drug and alcohol 

screening. Moreover, the circuit court found that, despite his proclaimed completion of substance 

abuse treatment, petitioner tested positive for alcohol, methamphetamine, and amphetamine 

following the final dispositional hearing.

In addition to considering petitioner’s failure to complete his improvement period, the 

circuit court considered petitioner’s psychological evaluation report, which indicated that he failed 

to accept responsibility for his actions, minimized the conditions of abuse and neglect, and blamed 

the children for the problems in the home. The circuit court found that, according to the report,
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petitioner lacked the motivation to address the conditions of abuse and neglect and received an 

extremely poor prognosis. Even more troubling to the circuit court were the children’s 

psychological evaluations and forensic interviews. The court found that the children’s disclosures 

were consistent and credible, and it was significant that C.M. refused to visit with petitioner. The 

circuit court was “firmly convinced” that the children endured significant abuse and neglect over 

a long period of time prior to the petition’s filing. The circuit court noted it was “readily apparent” 

that the children had an innate fear of petitioner and that the mother was well aware of that fear 

but “chooses to blatantly disregard the emotional well-being of her children in order to maintain 

her amorous relationship with” petitioner.

Lastly, the circuit court found petitioner’s arguments regarding a lack of family counseling 

unavailing. While the MDT discussed the possibility of family counseling, at no time did petitioner 

or his counsel file a motion with the circuit court requesting family counseling. Moreover, the 

circuit court found petitioner’s arguments in this regard “to be yet another artifice attempting to 

divert attention away from [petitioner’s] dearth compliance throughout this case.” Given the 

foregoing, the circuit court concluded that there was no reasonable likelihood that petitioner could 

correct the conditions of abuse and neglect in the near future and that termination was necessary 

for the children’s welfare. Petitioner appeals the circuit court’s June 10, 2021, dispositional order.

4

 

The Court has previously established the following standard of review in cases such as this:

“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 argues that the circuit court erred in terminating his parental rights 

when he substantially complied with his improvement period. According to petitioner, the DHHR 

had the duty to prove by clear and convincing evidence that there was no less-restrictive alternative 

to the termination of his parental rights but that the DHHR attempted to prove his noncompliance 

with services by simply not obtaining the documentation for those services and insinuating that it 

was petitioner’s responsibility to present documentation of his compliance. Petitioner notes that 

4The mother’s parental rights were terminated below. The father of N.M. and A.M. 

voluntarily relinquished his parental rights. All three children were placed in a foster home, and 

the permanency plan is adoption by that foster family.
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he signed releases so that the DHHR could obtain any documentation it needed and that, while he 

could have provided this documentation, “it has always been the standard within this judicial 

circuit and region of the WVDHHR that upon executed releases by respondents, the WVDHHR 

would obtain and disclose all related records in these matters.” As such, petitioner contends that 

the record developed at the dispositional hearing, including his own testimony, established that he 

substantially complied with his improvement period and that the circuit court erred in finding to

the contrary.

Petitioner further argues that the circuit court erred in terminating his parental rights 

without first ordering family counseling. Petitioner asserts that he requested family counseling and 

that the DHHR expressed its willingness to set up that service at a subsequent multidisciplinary 

team meeting. However, after the CPS worker who had been handling the matter was suddenly 

replaced, the “new regime” refused to implement family counseling. Petitioner argues that he 

cannot understand why family counseling was not implemented in his case given its noninvasive, 

controlled nature. Petitioner avers that family counseling would have provided the children and 

petitioner an opportunity to demonstrate their feelings to one another and could have bolstered the 

DHHR’s position to terminate petitioner’s parental rights if it had provided the service. However, 

he asserts, the DHHR’s failure to implement this service robbed both the children and petitioner 

of the opportunity of reunification, “especially considering petitioner had become sober after 

participating in his inpatient substance abuse treatment.” 

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

the DHHR failed to properly manage the case. Petitioner cites to the testimony of the last CPS 

worker assigned to the case, noting that the worker had “virtually no working knowledge of the 

facts and circumstances of the instant matter for which he was recommending termination.” 

Petitioner claims that the worker simply relied upon the representation of colleagues and did not 

adequately review the voluminous case file to form an independent opinion of what the proper 

disposition should have been. Petitioner further claims that, following the initial caseworker’s 

replacement, at least three subsequent CPS workers were assigned and none of them obtained any 

documentation pursuant to the releases petitioner executed. Moreover, the circuit court rebuked 

the DHHR for causing significant issues in the case. Therefore, petitioner contends that the circuit 

court erred in terminating his parental rights when the DHHR failed to manage the case, failed to 

implement services, and failed to obtain documentation of petitioner’s participation in services. 

We find no merit in petitioner’s arguments. This Court has previously held that 

“[a]t the conclusion of the improvement period, the court shall review the 

performance of the parents in attempting to attain the goals of the improvement 

period and shall, in the court’s discretion, determine whether the conditions of the 

improvement period have been satisfied and whether sufficient improvement has 

been made in the context of all the circumstances of the case to justify the return of 

the child.” Syl. Pt. 6, In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).

Syl. Pt. 3, In re J.G., 240 W. Va. 194, 809 S.E.2d 453 (2018). Here, the evidence overwhelmingly 

established that petitioner failed to correct the conditions of abuse and neglect. While petitioner 

argues that he substantially complied with hisimprovement period, the DHHR presented testimony 
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that petitioner failed to complete inpatient substance abuse treatment and parenting and adult life 

skills classes. Testimony established that petitioner’s longest stint in a rehabilitation program 

lasted less than three months, which was less than the circuit court’s minimum requirement of six 

months. Moreover, the circuit court found that petitioner avoided participating in services, such as 

parenting and adult life skills, by moving from treatment program to treatment program. A CPS 

worker testified that multiple referrals were made in different parts of the State to accommodate 

petitioner at whichever facility he was located; however, petitioner failed to respond to the service 

providers’ attempts to contact him and failed to contact the DHHR to implement further services.

Also, a service provider testified that petitioner cursed at C.M. during a virtual visitation and that 

his behavior during visits continued to deteriorate such that the child eventually refused to attend 

visits. Although petitioner argues that he addressed his drug addiction issues, the circuit court 

noted in its final order that petitioner tested positive for alcohol, methamphetamine, and 

amphetamine following the dispositional hearing. Thus, it is apparent that, despite petitioner’s 

attendance at various drug treatment facilities across the state, he remained in active addiction as 

of the final dispositional hearing. 

While petitioner testified that he completed drug treatment and other services which he 

sought out on his own accord, he failed to provide any documentation in support of his self-serving 

testimony. Contrary to petitioner’s argument, the DHHR did not fail to meet its burden in this 

regard. In discussing evidentiary burdens, we have set forth the following:

[a]s a general matter, the burden of proof consists of two components: burden of 

production and burden of persuasion. The burden of persuasion requires the party 

upon whom it is placed, to convince the trier of fact . . . on a given issue. When a 

party has the burden of persuasion on an issue, that burden does not shift. The 

burden of production merely requires a party to present some evidence to rebut 

evidence proffered by the party having the burden of persuasion. The term burden 

of production is also used to refer to either party presenting some evidence on a 

matter.

In re A.J., No. 16-1015, 2017 WL 2493290 at *2-3 (W. Va. Jun. 9, 2017)(memorandum decision) 

(quoting In re Tax Assessment of Foster Found.’s Woodlands Retirement Cmty, 223 W. Va. 14, 

29, 672 S.E.2d 150, 165 (2008)). In this matter, although the DHHR had the burden of proof and, 

thus, the burden of persuasion, as it relates to establishing that petitioner failed to remedy the 

conditions of abuse and neglect, petitioner had the burden of production. That is to say petitioner 

was required to present some evidence to rebut the DHHR’s evidence submitted below. Rather 

than presenting the signed releases or the certificates of completion, which were allegedly in his 

possession, petitioner simply relied on his self-serving testimony that he completed additional 

services, leaving the circuit court to assess the credibility of his testimony. Ultimately, the circuit 

court determined that petitioner’s testimony lacked credibility in the face of the DHHR’s 

presentation of overwhelming evidence to the contrary, and we decline to disturb this credibility 

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.”).
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Lastly, we note that the circuit court specifically provided in its order that it was not shifting 

the burden of proof from the DHHR to petitioner. The circuit court recognized that “the burden of 

clear and convincing evidence [is] placed upon the State when termination is sought by the 

DHHR.” The circuit court noted that, nevertheless, “a litigant cannot sit idly and present no 

evidence to support his or her testimony, especially when their testimony directly conflicts with 

the testimony of the opposing party.” To the extent petitioner argues he should have received 

family therapy, petitioner fails to recognize that West Virginia Code § 49-4-610(4)(A) requires 

that when a parent is granted an improvement period, the parent “shall be responsible for the 

initiation and completion of all terms of the improvement period.” The record is clear that 

petitioner never filed a motion or sought an order from the circuit court for family therapy. Based 

on the foregoing, we find that the circuit court did not shift the burden of proof to petitioner during 

the proceedings below. We further find that the circuit court did not err in determining that 

petitioner failed to substantially comply with his improvement period, given the evidence as set 

forth above.

We likewise find no error in the termination of petitioner’s parental rights. West Virginia 

Code § 49-4-604(c)(6) provides that circuit courts are to terminate parental rights upon finding 

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 children’s welfare. West 

Virginia Code § 49-4-604(d)(3) provides that 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 

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.

As set forth above, petitioner failed to comply with services or remedy the conditions of abuse and 

neglect. Moreover, testimony established that petitioner’s prognosis for attaining minimally 

adequate parenting was extremely poor. Mr. Jones testified that petitioner failed to acknowledge 

the extent of the abuse and neglect he perpetrated on the children. For example, petitioner 

minimized the danger of C.M. wandering near a busy highway and further minimized the extent 

of the domestic violence in the home, the home’s deplorable condition, and inadequate food in the 

home. Petitioner blamed everyone but himself for the situation, including the children, law 

enforcement, and the foster family. Mr. Jones opined that any period of sobriety exhibited by 

petitioner was solely for the purpose of appeasing the DHHR or the circuit court and indicated that 

there were no services or interventions that would assist petitioner in correcting his parenting 

deficiencies. Mr. Jones also testified that the children would be at risk of continued abuse and 

neglect if returned to petitioner’s care.

Testimony also established that termination of petitioner’s parental rights was necessary 

for the children’s welfare. The circuit court found that the children’s disclosures of abuse were 

credible and that the children had endured significant abuse and neglect over a long period of time. 

The children were afraid of petitioner, and C.M. refused to visit with him at times during the 
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proceedings. Ms. McCoy testified that the children needed extensive treatment to deal with the 

immense trauma that they had endured and further indicated that contact between petitioner and 

the children was not in the children’s best interests. This Court has instructed that “[t]he 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).

While petitioner argues that the DHHR mismanaged his case, we find no error. Although 

the circuit court expressed concern that multiple CPS workers had been assigned throughout the 

case and that the most recent CPS worker testified without having fully reviewed the case file, it 

nevertheless found that reasonable efforts were provided to aid petitioner in addressing his 

parenting deficiencies. It also found that petitioner demonstrated an inadequate capacity to solve 

those issues on his own or with help. The circuit court concluded that petitioner could not blame 

the DHHR for his failure to comply with services. It further noted that petitioner’s psychological 

evaluation showed an extremely poor prognosis for attaining minimally adequate parenting and 

that petitioner’s conduct throughout the case had proven that prognosis to be accurate. Having 

reviewed the record, we cannot find that the use of multiple CPS workers negatively impacted 

petitioner’s ability to participate in the proceedings, especially given the testimony that petitioner 

was offered services and that service providers were willing to be flexible to accommodate 

petitioner at his various treatment programs. Petitioner failed to maintain contact or respond to 

their attempts at contact. Further, although the most recent CPS worker testified that he had not 

had time to review the whole case file, testimony established that he was assigned to the case only 

three weeks prior to the final dispositional hearing and that he had met with his supervisor and 

other colleagues who briefed him on the case and instructed him as to the DHHR’s 

recommendation. The DHHR’s recommendation that petitioner’s parental rights be terminated did 

not rest solely on his shoulders and was, in fact, based on petitioner’s failure to comply throughout 

the proceedings. As such, we find no error in this regard.

As set forth above, petitioner failed to remedy the conditions of abuse and neglect, the 

circuit court properly determined that there was no reasonable likelihood that petitioner could 

correct the conditions of abuse and neglect in the near future, and the evidence demonstrated that 

termination of petitioner’s parental rights was in the children’s best interests. This Court has 

previously held that

“[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(d)] 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). Therefore, we find that the 

circuit court did not err in terminating petitioner’s parental rights.

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

10, 2021, order is hereby affirmed.
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Affirmed.

ISSUED: January 12, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice William R. Wooton