STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In Re: H.W. & R.W. June 15, 2015 

RORY L. PERRY II, CLERK 

No. 15-0019 (Nicholas County 14-JA-46 & 14-JA-47) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother M.W., by counsel John Anderson II, appeals the Circuit Court of 

Nicholas County’s December 8, 2014, order terminating her parental rights to H.W. and R.W. 

The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Michael 

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

(“guardian”), Julia Callaghan, 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 an extension of her post-adjudicatory improvement period and in finding 

that there was no reasonable likelihood that the conditions of abuse and neglect could 

substantially be corrected.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 April of 2014, the DHHR filed an abuse and neglect petition against petitioner alleging 

(1) that her drug abuse impaired her ability to provide proper care for her children; (2) 

educational neglect; (3) failure to provide a safe home; and (4) domestic violence. Several 

months later, petitioner entered into a stipulated adjudication wherein she admitted that her drug 

abuse impaired her ability to provide proper care for her children. Subsequently, the circuit court 

granted petitioner a post-adjudicatory improvement period. The terms and conditions of the 

improvement period required petitioner to remain drug and alcohol free; submit to random drug 

screens and a psychological evaluation; attend drug counseling and in-patient treatment; attend 

Narcotics Anonymous meetings; obtain safe housing and employment; attend domestic violence 

classes; and supervised visitation. 

In September of 2014, the circuit court held a review hearing. A Child Protective 

Services worker testified that petitioner failed to: remain drug free; follow the recommendations 

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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 at the time of the lower court proceedings. 

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of her psychological evaluation; participate in in-patient substance abuse treatment and attend 

Narcotics Anonymous meetings; attend domestic violence counseling; and to participate in 

supervised visitation with her children. Despite finding that petitioner “[was] not making a good 

faith effort to complete the requirements of [her] improvement period” the circuit court 

continued petitioner’s post-adjudicatory improvement period. 

In October of 2014, the circuit court held a dispositional hearing. The DHHR presented 

evidence that petitioner was admitted into a long-term drug treatment program but that she 

withdrew from the program after one day and missed a recent drug screen. Further, Doctor 

Timothy Saar testified that petitioner “has a strong tendency to minimize her substance abuse 

issues” and that, based upon her multiple unsuccessful attempts to remain sober, her likelihood 

of improvement was “poor.” As such, the circuit court terminated petitioner’s parental rights to 

her children. It is from this 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 

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, this Court 

finds no error in the circuit court’s denial of petitioner’s motion for an extension of her postadjudicatory improvement period or in finding that there was no reasonable likelihood that she 

could substantially correct the conditions of abuse and neglect. 

Petitioner’s first assignment of error is that the circuit court erred in not extending her 

post-adjudicatory improvement period. Petitioner’s assertion is belied by the record. Petitioner 

was granted a post-adjudicatory improvement period in June of 2014. The circuit court held a 

review hearing on petitioner’s improvement period in September of 2014, during which the 

circuit court found that “the terms and conditions of the improvement period shall continue.” 

Therefore, we find no error. 

Petitioner also argues that the circuit court erred in finding that there was no reasonable 

likelihood that she could substantially correct the conditions of abuse and neglect. Pursuant to 

West Virginia Code § 49-6-5(b)(3), a respondent parent’s failure to respond or to follow through 

with a reasonable family case plan or other rehabilitative efforts constitutes circumstances in 

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which there is no reasonable likelihood that the conditions of abuse or neglect can be 

substantially corrected. Further, West Virginia Code § 49-6-5(a)(6) expressly provides for 

termination “upon a finding that there is no reasonable likelihood that the conditions of neglect 

or abuse can be substantially corrected in the near future and when necessary for the welfare of 

the child.” (Emphasis added). The record clearly demonstrates that petitioner failed to 

substantially correct the conditions that led to the abuse and neglect, including a postadjudicatory improvement period and one extension. Although petitioner argues that she took 

steps towards her sobriety, the record on appeal reveals that petitioner failed to: remain drug free; 

follow the recommendations of her psychological evaluation; participate in long-term substance 

abuse treatment and attend Narcotics Anonymous meetings; attend domestic violence 

counseling; and participate in supervised visitation with her children. As such, petitioner failed to 

respond or follow through with the rehabilitative services. Therefore, we find no error in the 

circuit court’s finding that there was no reasonable likelihood that petitioner could substantially 

correct the conditions of abuse and neglect in the near future. 

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

December 8, 2014, order is hereby affirmed. 

Affirmed. 

ISSUED: June 15, 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 

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