IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2014 Term FILED 

February 5, 2014 

released at 3:00 p.m. 

No. 13-0342 RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

IN RE: B.H. and S.S. 

Appeal from the Circuit Court of Wood County
 

Honorable John D. Beane, Judge
 

Civil Action Nos. 11-JA-145 and 11-JA-146
 

AFFIRMED
 

Submitted: January 15, 2014 

Filed: February 5, 2014 

Reggie R. Bailey, Esq. Patrick Morrisey, Esq. 

Parkersburg, West Virginia Attorney General 

Attorney for Petitioner Krista H. Charleston, West Virginia 

Lee A. Niezgoda, Esq. 

Assistant Attorney General 

Michael D. Farnsworth, Jr., Esq. White Hall, West Virginia 

Parkersburg, West Virginia Attorneys for Respondent 

Guardian Ad Litem for B.H. and S.S. West Virginia Department of 

Health and Human Resources 

JUSTICE LOUGHRY delivered the opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “‘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). 

2. “‘[C]ourts are not required to exhaust every speculative possibility of 

parental improvement . . . where it appears that the welfare of the child will be seriously 

threatened . . . .’ Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” 

Syl. Pt. 4, in part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). 

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3. “At 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 Interest of 

Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991). 

4. In making the final disposition in a child abuse and neglect proceeding, the 

level of a parent’s compliance with the terms and conditions of an improvement period is just 

one factor to be considered. The controlling standard that governs any dispositional decision 

remains the best interests of the child. 

5. “‘To justify a change of child custody, in addition to a change in 

circumstances of the parties, it must be shown that such change would materially promote 

the welfare of the child.’ Syl. Pt. 2, Cloud v. Cloud, 161 W.Va. 45, 239 S.E.2d 669 (1977).” 

Syl. Pt. 5, In re Frances J.A.S., 213 W.Va. 636, 584 S.E.2d 492 (2003). 

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LOUGHRY, Justice: 

The petitioner, Krista H. (“the mother”), appeals from the January 9, 2014, 

Corrected Disposition Order through which the Circuit Court of Wood County granted 

primary custodial responsibility of her daughters, B.H. and S.S.,1 to their biological father, 

the respondent Randy H., Jr. (“the father”);2 granted her unsupervised visitation with the 

children; and dismissed the proceeding from the circuit court’s docket.3 Seeking a reversal 

of the circuit court’s order and the entry of a new order making her the primary custodial 

parent, the mother asserts that the circuit court erred by granting the father primary custody 

of the children because she had substantially complied with the terms and conditions of her 

1

Consistent with our practice in cases involving sensitive matters, we use the first 

name and last initial of the parents and the child victim’s initials. See State v. Edward 

Charles L., 183 W .Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990); see also W.Va. R. 

App. P. 40(e)(1). 

2

The record reflects that the Randy H. is the biological father of both S.S. and B.H. 

There is some indication in the appendix record that the mother and father were married and 

later divorced, although the Court could not find a specific date in the record for either event. 

3

On April 5, 2013, the mother filed her notice of appeal from the circuit court’s first 

Disposition Order entered March 6, 2013, that terminated her custodial rights to B.H. and 

S.S. and gave primary custody of the children to their father. This order also gave the mother 

liberal visitation with her daughters pursuant to the Multi-Disciplinary Team’s proposed 

Parenting Plan, which the circuit court adopted. Under Rule 50 of the Rules of Procedure 

for Child Abuse and Neglect Proceedings, “[t]he filing of a petition for appeal does not 

operate to automatically stay the proceedings or orders of the circuit court in abuse, neglect, 

and/or termination of parental rights cases . . . .” The circuit court’s docket sheet reflects that 

no stay was entered in this matter and, during the pendency of this appeal, the circuit court 

entered its Corrected Disposition Order. 

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improvement period and by denying her an adequate opportunity to regain primary physical 

custody of the children through unsupervised visitation. Based upon the record, the parties’ 

briefs, and the arguments presented, we find no error. Accordingly, we affirm the circuit 

court’s award of primary custody of the children to the father and unsupervised visitation to 

the mother. 

I. Factual and Procedural Background 

On December 5, 2011, the respondent, the West Virginia Department of Health 

and Human Resources (“the Department”), filed a verified Petition to Institute Child Abuse 

and Neglect Proceedings (“Petition”) against the mother in relation to her minor children, 

B.H. and S.S.4 The father was also a named respondent in the proceeding, although there 

were no allegations of either abuse or neglect against him in the Petition.5 The Department 

alleged that the mother was in a personal relationship with a registered sex offender, John 

4

B.H. was born in 2004, and S.S. was born in 2001. The children were initially placed 

in foster care, then with their paternal grandparents, and ultimately with their father, as more 

fully discussed infra. Although the mother’s oldest child was also named in the 

Department’s Petition, he reached the age of majority during the pendency of the proceeding 

and was no longer a party at the time of disposition. 

5

After the father was served with the Petition, he sought custody of his children as the 

non-offending parent. The father admittedly had no contact with his children for an extended 

period of time. During a hearing before the circuit court, the father acknowledged that he 

had previously attempted to voluntarily relinquish his parental rights to B.H. and S.S., an 

action that he attributed to the mother’s interference with his attempts to have contact with 

his children, as well as her transient lifestyle, both of which prevented him from maintaining 

contact with his children. 

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Bailey; that the mother exposed her children to Mr. Bailey, as well as his friend, Andrew 

Oldaker, a registered sex offender with whom the mother, her daughters, B.H. and S.S., and 

Mr. Bailey lived for a period of time; and that S.S. and B.H. were sexually abused on 

multiple occasions by Mr. Bailey and other sex offenders with whom the mother associated.6 

The Department took emergency custody of the children and, on December 6, 2011, the 

circuit court ordered that the legal and physical custody of B.H. and S.S. remain with the 

Department. The mother waived her preliminary hearing and the matter proceeded to 

adjudication. 

During the January 10, 2012, adjudicatory hearing, the circuit court accepted 

the mother’s stipulation wherein she stated, in part, as follows: 

3. The father of [B.H. and S.S.] is Randy [H., Jr.] whose 

whereabouts are unknown. 

7. The respondent-mother admits to the neglect of the abovenamed children as follows: 

1. No permanent residence at the time of filing 

the petition. 

6

The following is an example of the abuse alleged in the Department’s Petition: 

On or around December 1, 2011, [S.S.] stated that John took her 

the night before and threw her on the bed then ripped . . . her 

pants off and stuck his fingers in her spot and pointed at her 

vaginal area. She stated that he also made her rub his chest. 

[S.S.] stated that it never stops. She stated that sometimes she 

does not mind it because if she does things with him he buys her 

really cool stuff. 

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2. She and her children were residing with John 

Bailey, a registered sex offender. 

3. She was aware that John Bailey and Andrew 

Oldaker were registered sex offenders, and failed 

to protect her children by allowing them to be 

around John Bailey and Andrew Oldaker. 

4. That as a result of being around John Bailey 

and other individuals who are registered sex 

offenders, her children were subjected to sexual 

abuse. 

8. Based upon these stipulations, the children are neglected 

children within the meaning of the West Virginia Code 49-6-1 

et al. 

On January 17, 2012, the circuit court entered an order adjudicating the 

children abused and neglected and awarding the mother a six-month post-adjudicatory 

improvement period. The primary goals of the improvement period were to aid the mother 

in improving her self-esteem; to help her gain insight into how her children had been harmed 

through their exposure to registered sex offenders; and to teach her how to identify and 

recognize sex offenders, how to prevent the sexual abuse of her children, and how to provide 

them with a safe and secure home, free from exposure to sex offenders. The improvement 

period also allowed the mother to have supervised visitation with her daughters. 

Thereafter, periodic review hearings were held before the circuit court to 

ascertain how the mother was doing in her improvement period. While the mother complied 

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with certain aspects of her improvement period, in other areas she experienced difficulties.7 

In Child Protective Services (“CPS”) worker Amanda Damron’s April 3, 2012, hearing 

update, she reported that the mother had knowingly started dating and living with another sex 

offender, Patrick Trembly. CPS worker Damron further reported that the mother indicated 

that Mr. Trembly was fighting his “wrongful conviction” and that she believed he is 

innocent.8 

In CPS worker Damron’s update for the July 9, 2012, review hearing, she 

reported that the mother “seemed to understand what the appropriate boundaries should be 

with [B.H. and S.S.], but in the next visit, she did nothing that she and the worker [the 

7

The concerns reported by the service provider and the child protective services 

worker included the mother’s difficulty in understanding the safety concerns that arise when 

she allows S.S. to use her cell phone to access Facebook in her effort to find “dates” for her 

mother; the mother being “very untruthful at times[;]” the mother’s inability to see the 

mistakes that she continues to make with the children despite her ability to verbalize her past 

mistakes; and the mother not retaining the information discussed at her parenting classes. 

8

Although Ms. Damron indicated in her May, 23, 2012, hearing update that there had 

been no further reports of the mother being in a relationship with a sex offender at that time, 

the appendix record contains the mother’s testimony that she lived with Mr. Trembly until 

June 2012 and that she “broke it off” with him after learning that he was a registered sex 

offender, although she still agreed “to help him go over his papers[,]” “as a friend.” When 

questioned regarding her claim that she had learned from her mistake with John Bailey given 

her relationship with Mr. Trembly, the mother responded that “[she] learned not to have 

[registered sex offenders] around my kids[]” and Mr. Trembly “wasn’t around my children 

because they were with CPS.” Admittedly, the mother did not have custody of her children 

due to her relationships with registered sex offenders, which led to the sexual abuse of her 

daughters. 

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parenting provider] talked about.” Ms. Damron further reported that the parenting provider 

was “very uneasy at the thought of unsupervised visitation.” 

In late August 2012, the mother filed a motion for a ninety-day extension of 

her improvement period, which the circuit court granted. Approximately one month into the 

ninety-day extension, CPS worker Damron reported that the mother had started weekend 

visitations with her children under the supervision of her maternal aunt. Ms. Damron 

concluded her October 2012 report by expressing continuing concern that the mother will not 

be protective of the children based on the parenting provider’s impression that the mother 

still does not believe that John Bailey is a sex offender9 but says that she does so as to appear 

protective.10 In late November 2012, CPS worker Damron filed another hearing update in 

9

During the disposition hearing, the mother testified that she knew John Bailey was 

a pedophile when she was dating him but did not believe that he was because she was told 

that his victim “was 16 and he was only a couple years older, and that, to me, does not make 

you a pedophile.” The mother further testified that she ended her relationship with John 

Bailey, not because he was a registered sex offender and a pedophile, but because she “didn’t 

approve of the way he was yelling at [her children].” 

10This October 2012 report also reflects that the parenting provider questioned the 

mother about “Jerry,” a friend of John Bailey and a registered sex offender whom S.S. said 

had sexually abused her. The appendix record reflects that “Jerry” shared one bed in a hotel 

room with B.H. and S.S. while the mother and John Bailey shared the other bed. The mother 

told the provider that she did not know that “Jerry” was a registered sex offender at the time. 

When the provider asked the mother why it would be appropriate for her to allow her 

daughters to be in a bed with a grown male, regardless of whether she knew that person was 

a registered sex offender, the mother responded that she has no “common sense” and does 

not “think of those types of things[.]” 

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which she reported that while the mother had complied with the terms and conditions of all 

services,11 she “continue[d] to be concerned that [the mother] will not be protective of the 

children in the future” and that “the provider’s account of [the mother’s] diminished decision 

making skills . . . will cause safety concerns for the children if they were to be in [the 

mother’s] complete care.”12 In recognition of these continuing concerns, when the circuit 

court awarded the mother unsupervised visitation by order entered December 10, 2012, the 

court directed that only the mother and the children’s maternal grandmother13 could be 

present and that “the [Department], provider or the Guardian ad Litem shall follow-up 

immediately after the visitations to make sure they are appropriate.” 

11The appendix record reflects that the terms and conditions of the mother’s 

improvement period included her participating in parenting classes, adult life skills classes, 

and a domestic violence group to teach her independence and the ability to build healthy 

relationships that do not put her children at risk; participating in group and individual therapy 

geared toward improving her self-esteem; complying with her psychiatric treatment; 

attending the children’s therapy appointments; maintaining a safe and stable household for 

her children; and participating in the supervised visitation with her children. 

12In her November 2012 update, Ms. Damron also reported on a recent MultiDisciplinary Team meeting during which the parenting provider advised that the mother 

would have “difficulty recognizing safety concerns early enough to prevent the children 

being harmed in the future[;]” and that unsupervised visits, if any, should be solely between 

the mother and the children given the mother’s difficulty in choosing appropriate people with 

whom to associate. 

13During the course of this proceeding, the mother moved into the basement apartment 

of her mother’s home. Counsel advised the Court during oral argument that the mother 

continues to reside in this apartment. 

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In CPS worker Damron’s final report to the circuit court, she advised that the 

mother’s unsupervised visitations began the prior month in the basement apartment of her 

mother’s home where she was residing, and that the visitations went well. Ms. Damron 

further advised that while the mother had complied with services, the Multi-Disciplinary 

Team (“MDT”) members continued to be concerned that she had “not changed her behavior 

enough to ensure that she will not expose her children to inappropriate people.” Ms. Damron 

concluded her report by stating that all MDT members, except the mother, agreed that the 

best interests of the children would be served by allowing them to remain in the primary 

custody of their father with a visitation plan for the mother. 

On February 5, 2013, the disposition hearing was held during which Ms. 

Damron testified consistently with her final report, as discussed above. The mother testified 

that she now understands that it is important to keep her children away from certain kinds of 

people; that she was attracted to these people because they “paid attention” to her; that she 

learned how to determine “whether these guys are on the sex offender list[;]” that her selfesteem had improved; and that she “blame[d]” Parkersburg, West Virginia,14 for her 

relationships with three different sex offenders. The father testified that the children had 

been living with him, his wife, and his other daughter for approximately four months; that 

14The mother previously resided in the state of Ohio. 

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their school attendance had been excellent; that both girls were on the honor roll at school; 

and that both girls feel safe and know that they have a stable home. 

At the conclusion of the disposition hearing, the Department’s counsel advised 

that the children’s best interest would be served by terminating the mother’s custodial rights 

and allowing the children to remain with their father while giving the mother visitation. The 

GAL concluded that it was in the children’s best interest to remain with their father with 

frequent and liberal visitation with their mother.15 

On March 13, 2013, the circuit court entered its first Disposition Order in 

which it terminated the mother’s custodial rights16 and adopted the Parenting Plan proposed 

by the MDT, which made the father the primary residential parent and gave the mother 

15The GAL also expressed concern to the circuit court regarding the mother’s 

relationship with Patrick Trembly and her “lack of insight into these issues[,]” including that 

she blamed Parkersburg, West Virginia, for her association with sex offenders. As the GAL 

observed, “I think it’s the mother’s choices and where she puts herself and where she ends 

up.” While acknowledging that the mother had completed her improvement period, the GAL 

also stated that “when it comes down to where do the kids go, I think the bottom line is right 

now they’re in a safe place. They’re in a stable environment with their father, and I don’t 

think we need to risk that again by putting them back with the mother.” 

16Although the Department appeared to withdraw its recommendation to terminate the 

mother’s custodial rights near the conclusion of the disposition hearing, the Department’s 

counsel drafted this initial Disposition Order, which terminated the mother’s custodial rights. 

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unsupervised visitation with the children.17 In its Corrected Disposition Order entered during 

the pendency of this appeal, the circuit court did not terminate the mother’s custodial rights. 

Instead, the circuit court found that the mother had “substantially complied” with the terms 

and conditions of her improvement period,18 but that it was in the children’s best interest that 

their father be appointed as their “primary residential parent.” The circuit court stated in this 

order that it had considered the children’s wish to remain in the primary custody of their 

father, as well as the “totality of circumstances in the case, including but not limited to the 

academic performance of the children while living with their father and the safe and stable 

environment they have enjoyed while living there[.]” The circuit court again adopted the 

MDT’s proposed Parenting Plan19 and dismissed the proceeding from the court’s docket.20 

17The MDT’s Parenting Plan provides the mother with overnight visitation with the 

children every Wednesday; visitation every other weekend from 7:00 p.m. on Friday to 7:00 

p.m. on Sunday; the parents alternate weeks during the summer school break; the mother has 

the children on her birthday and Mother’s Day and the father has them on his birthday and 

Father’s Day; the father has the children until 1:00 p.m. on Thanksgiving day and the mother 

has them the remainder of that day; the father has the children until 6:00 p.m. on Christmas 

Eve and the mother has them Christmas night and Christmas day; and the parents alternate 

years having the children during their Christmas break from school. The mother, also a 

member of the MDT, did not agree with this Parenting Plan because she believes that she 

should be the primary custodial parent. 

18See supra note 11 for a discussion of these terms and conditions. 

19During oral argument before this Court, counsel advised that the parents had been 

following this Parenting Plan since its initial adoption in the Disposition Order entered on 

March 13, 2013. See supra note 3. 

20The circuit court’s Corrected Disposition Order also advised the father that both the 

Corrected Disposition Order and the Parenting Plan should “be ratified by the Original Court 

(continued...) 

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During oral argument before this Court, all parties agreed that the mother’s first 

assignment of error challenging the termination of her custodial rights in the circuit court’s 

first Disposition Order was mooted by the entry of the Corrected Disposition Order. Thus, 

the sole remaining issue on appeal is whether the circuit court erred in awarding primary 

custody of B.H. and S.S. to their father. 

II. Standard of Review 

We are asked to review a circuit court’s disposition order entered upon a 

petition for termination of parental rights. Our standard of review in this regard is well 

established: 

“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 

20(...continued) 

of Jurisdiction which previously addressed the legal custody and support issues.” Without 

further information from either the parties or the appendix record in this regard, we presume 

the circuit court was referring to the court in which the parties were divorced. 

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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). As we have previously 

explained, “a circuit court’s substantive determinations in abuse and neglect cases on 

adjudicative and dispositional matters—such as whether neglect or abuse is proven, or 

whether termination is necessary—is entitled to substantial deference in the appellate 

context.” In re Rebecca K.C., 213 W.Va. 230, 235, 579 S.E.2d 718, 723 (2003) (internal 

citations omitted). With these principles in mind, the parties’ arguments will be considered. 

III. Discussion 

In the present appeal, the mother asserts that the circuit court erred in granting 

primary custody of B.H. and S.S. to their father as she had substantially complied with the 

terms of her post-adjudicatory improvement period; the children had lived with her solely 

since they were infants; and she had been denied an adequate period of unsupervised 

visitation to demonstrate what she had learned from her improvement period. We begin our 

analysis of this issue by acknowledging that 

“[a]lthough parents have substantial rights that must be 

protected, the primary goal in cases involving abuse and neglect, 

as in all family law matters, must be the health and welfare of 

the children.” Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 

S.E.2d 589 (1996). Indeed, “‘“[i]n a contest involving the 

custody of an infant the welfare of the child is the polar star by 

which the discretion of the court will be guided.” Syl. pt. 1, 

State ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 

(1972).’ Syllabus Point 4, State ex rel. David Allen B. v. 

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Sommerville, 194 W.Va. 86, 459 S.E.2d 363 (1995).” Syl. Pt. 

2, In the Interest of Kaitlyn P., at 123-124, 690 S.E.2d at 131­

132. 

In re Timber M., 231 W.Va. 44, , 743 S.E.2d 352, 361 (2013). Further, although parents 

have substantial rights, “‘courts are not required to exhaust every speculative possibility of 

parental improvement . . . where it appears that the welfare of the child will be seriously 

threatened . . . .’ Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” 

Syl. Pt. 4, in part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). 

In the case-at-bar, the mother’s post-adjudicatoryimprovement period provided 

her with “‘an opportunity . . . to modify . . . her behavior so as to correct the conditions of 

abuse and . . . neglect with which . . . she ha[d] been charged.’ In re Emily, 208 W.Va. at 

334, 540 S.E.2d at 551.” In re Isaiah A., 228 W.Va. 176, 184, 718 S.E.2d 775, 783 (2010). 

As this Court has previously directed, 

[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 Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991) (emphasis added). 

While the circuit court acknowledged the mother’s substantial compliance with the terms and 

conditions of her improvement period, we have recognized that “‘it is possible for an 

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individual to show “compliance with specific aspects of the case plan” while failing “to 

improve . . . [the] overall attitude and approach to parenting.’ W.Va. Dept. of Human Serv. 

v. Peggy F., 184 W.Va. 60, 64, 399 S.E.2d 460, 464 (1990).” In re Jonathan Michael D., 

194 W.Va. 20, 27, 459 S.E.2d 131, 138 (1995). Moreover, “‘[t]he assessment of the overall 

success of the improvement period lies within the discretion of the circuit court . . . . 

“regardless of whether . . . the individual has completed all suggestions or goals set forth in 

family case plans.”’ In Interest of Carlita B., 185 W.Va. 613, 626, 408 S.E.2d 365, 378 

(1991).” In re Jonathan Michael D., 194 W.Va. at 27, 459 S.E.2d at 138.21 

In reviewing the circuit court’s rulings in the case sub judice, we remain 

mindful that 

whenever a child appears in court, he is a ward of that court. 

W.Va. Code § 49–5–4 (1996); Mary D. v. Watt, 190 W.Va. 341, 

438 S.E.2d 521 (1992). Courts are thus statutorily reposed with 

a strong obligation to oversee and protect each child who comes 

before them. As Justices Cleckley and Albright stated in West 

Virginia Department of Health and Human Resources ex. rel. 

Wright v. Brenda C., 197 W.Va. 468, 475 S.E.2d 560 (1996), 

“[a]bove all else, child abuse and neglect proceedings relate to 

the rights of an infant.” Id. at 477, 475 S.E.2d at 569. 

21West Virginia Code § 49-6D-3 (2009 & Supp. 2013) requires the Department to 

develop and file a family case plan if the circuit court awards an improvement period to a 

parent. While the appendix record reflects that the terms and conditions of the mother’s postadjudicatory improvement period were presented to and approved by the circuit court, the 

parties’ briefs never refer to a family case plan. While we presume that such a plan was 

developed in the instant proceeding, we nonetheless remind both the Department and the 

circuit courts of the statutory requirement for such plans. 

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State v. Julie G., 201 W.Va. 764, 776, 500 S.E.2d 877, 889 (1997) (J. Workman, dissenting). 

Further, as we stated in In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013), 

[I]t is clear from our [child abuse and neglect] procedural rules, 

as well as our prior case law, that “[t]here cannot be too much 

advocacy for children.” State ex rel. Diva P. v. Kaufman, 200 

W.Va. 555, 570, 490 S.E.2d 642, 657 (1997) (Workman, C.J., 

concurring). Indeed, if one thing is firmly fixed in our 

jurisprudence involving abused and neglected children, it is that 

the “polar star test [is] looking to the best interests of our 

children and their right to healthy, happy productive lives[.]” In 

re Edward B., 210 W.Va. 621, 632, 558 S.E.2d 620, 631 (2001). 

This Court has repeatedly stated that a child’s welfare acts as 

“the polar star by which the discretion of the court will be 

guided.” In Re: Clifford K., 217 W.Va. 625, 634, 619 S.E.2d 

138, 147 (2005) (internal citation omitted). 

231 W.Va. at __, 743 S.E.2d at 367-68. 

Grounded in these same fundamental principles, this Court observed that “[t]he 

question at the dispositional phase of a child abuse and neglect proceeding is not simply 

whether the parent has successfully completed his or her assigned tasks during the 

improvement period. Rather, the pivotal question is what disposition is consistent with the 

best interests of the child.” In re Frances J.A.S., 213 W.Va. 636, 646, 584 S.E.2d 492, 502 

(2003). Indeed, the overriding consideration must be whether the issues that brought about 

the allegations of abuse and/or neglect have been addressed by the parent in a substantive and 

effective manner, and whether those conditions of abuse and/or neglect have been 

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sufficiently remedied such that it is in the child’s best interests to be returned to the parent’s 

custody. 

Based on our prior precedent and long history of unwavering concern for the 

health and well-being of children, we now hold that in making the final disposition in a child 

abuse and neglect proceeding, the level of a parent’s compliance with the terms and 

conditions of an improvement period is just one factor to be considered. The controlling 

standard that governs any dispositional decision remains the best interests of the child. 

In the present appeal, although the mother substantially complied with the 

terms and conditions of her improvement period, there were continuing concerns that she 

would again become involved with inappropriate individuals and thereby continue to expose 

her daughters to the serious risks attendant with such ill-advised associations. We observe 

that there is evidence for these concerns in the appendix record. 

As previously indicated, the mother stipulated that she was aware that John 

Bailey and Andrew Oldaker were registered sex offenders; that she failed to protect her 

children by allowing them to be around Messrs. Bailey and Oldaker; and, that as a result of 

being around Mr. Bailey and other individuals who are registered sex offenders, her children 

were subjected to sexual abuse. The appendix record also reflects that the mother continued 

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her relationship with John Bailey after learning that he was a registered sex offender because 

she believed he was innocent. In fact, as late as October 2012, a parenting provider reported 

that the mother still did not believe that John Bailey is a registered sex offender, but says that 

she does so as to appear protective of her children. Moreover, during the mother’s 

improvement period, she entered into a relationship with yet another registered sex offender, 

Patrick Trembly. She endeavored to excuse this relationship on the basis that her daughters 

were never around Mr. Trembly because they were in the Department’s custody.22 Further, 

as with John Bailey, after learning that Mr. Trembly was a registered sex offender, the 

mother believed he was innocent and agreed “to help him go over his papers[,]” “as a friend.” 

We recognize the difficulty that the circuit court confronted in terms of 

assessing whether the mother had made “sufficient improvement . . . in the context of all the 

circumstances of the case to justify the return of the child[ren].” Syl. Pt. 6, in part, Carlita 

B., 185 W.Va. 613, 408 S.E.2d 365. Unlike an abuse and neglect proceeding that involves 

a dirty home or a parent abusing drugs, where a parent’s success in an improvement period 

can be measured in concrete terms of whether the home is clean or the parent’s drug screens 

are negative, here, the circuit court had to assess whether the mother had internalized what 

the service providers endeavored to teach her during her improvement period and whether 

22Again, the children were in the Department’s custody due to the mother’s 

relationships with registered sex offenders and her failure to protect her children. 

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she would, in fact, protect her children by avoiding relationships with individuals in whose 

presence her children were placed at risk of abuse. 

In addressing this difficult question, the circuit court had the benefit of 

numerous improvement period review hearings during which it was advised of continuing 

concerns about unsupervised visitation and whether the mother would protect her daughters 

if they were under her full-time care. At disposition, CPS worker Damron summarized for 

the circuit court the children’s circumstances prior to the instant proceedings when they were 

residing with the mother: “[T]hey moved several times, missed several days of school, their 

grades were suffering, and ultimately the children were sexually abused as a result of the 

mother exposing the children to inappropriate individuals because she put her need to have 

a relationship above the children’s need for safety.” Ms. Damron also advised the circuit 

court that after the children were removed from the mother, they have 

excelled in their school work and also their attendance. The 

children have enjoyed playing basketball and other after school 

activities that they have never been able to participate in before. 

The children have a routine every day that creates a safe and 

stable environment for them and allows them to actually act 

their age. The children reside full time with their father, who is 

providing a safe and stable home for them. There have been no 

safety concerns raised while they have resided with their 

father.23 

23After the children were removed from foster case and placed in the home of their 

paternal grandparents in May 2012, the MDT regularly monitored and discussed the contact 

(continued...) 

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(Footnote added.). The circuit court received multiple recommendations at disposition that 

the best interests of the children would be served by remaining in the primary custody of their 

father with visitation to the mother, which is what the children desired, as well. See Matter 

of Brian D., 194 W.Va. 623, 636, 461 S.E.2d 129, 142 (1995) (“Cases involving children 

must be decided not just in the context of competing sets of adults’ rights, but also with a 

regard for the rights of the child(ren). . . . and [the children’s] own feelings and emotional 

attachments should be taken into consideration by the lower court.”). 

As we have previouslyheld, “‘[t]o justifya change of child custody, in addition 

to a change in circumstances of the parties, it must be shown that such change would 

materially promote the welfare of the child.’ Syl. Pt. 2, Cloud v. Cloud, 161 W.Va. 45, 239 

S.E.2d 669 (1977).” Syl. Pt. 5, In re Frances J.A.S., 213 W.Va. 636, 584 S.E.2d 492 (2003). 

During oral argument, counsel advised this Court that the parents have been following the 

MDT’s Parenting Plan since it was first adopted by the circuit court in March 2013, and that 

there have been no concerns raised concerning the welfare of the children during that time. 

Accordingly, based upon our review of the appendix record, the relevant law, and the 

parties’ arguments, and giving substantial deference to the circuit court’s dispositional 

23(...continued) 

between the children and their father, who lived nearby. Progressively, the children 

developed a relationship with their father and went to live in his home in October 2012. 

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decision,24 this Court concludes that the circuit court’s adoption of the MDT’s Parenting Plan 

serves the best interests of B.H. and S.S. by fostering their bond with their mother25 through 

liberal unsupervised visitation while simultaneously insuring their safety and materially 

promoting their welfare by allowing primary custody to remain with their father. 

Lastly, we address the mother’s argument that she was not given sufficient 

unsupervised visitations to permit her to demonstrate the full extent of what she had learned 

from her improvement period.26 As indicated above, any delay in ordering unsupervised 

visits was due to the mother’s actions and conduct, which led to continuing concerns that she 

would not protect her daughters from additional acts of abuse. Although the circuit court 

awarded the mother unsupervised visitation in December 2012, in the face of these 

continuing concerns, it also directed that the only persons who were to be present during the 

unsupervised visitation were the mother and the children’s maternal grandmother and that 

the Department, its services provider, or the GAL were to follow-up immediately after such 

visitations to ensure their appropriateness. The unsupervised visitation began the following 

month. 

24See In re Rebecca K.C., 213 W.Va. at 235, 579 S.E.2d at 723. 

25The GAL stated in his dispositional hearing report that the children were bonded 

with both parents. 

26The mother began requesting unsupervised visitation in July 2012. 

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Based on all of the above, we find that the mother had ample opportunity 

during her improvement period to demonstrate that she had learned and internalized how to 

make better parenting decisions and better choices in terms of the persons with whom she 

chooses to associate so as to protect her daughters. Consequently, any delay in awarding 

unsupervised visitation was due to the mother’s behaviors and actions which caused 

continuing concern for the children’s safety. Accordingly, we find no error in this regard. 

IV. Conclusion 

Based upon this Court’s thorough review of this matter and for the foregoing 

reasons, the Circuit Court of Wood County’s Corrected Disposition Order awarding primary 

custody of B.H. and S.S. to the father with liberal visitation to the mother is hereby affirmed. 

Affirmed. 

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